Nagra v Sri Guru Sabha Auckland Incorporated (1229571)
[2023] NZHC 34
•27 January 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1178
[2023] NZHC 34
IN THE MATTER of an application under the Judicial Review Procedure Act 2016 BETWEEN
DALJIT SINGH NAGRA AND GURNEK SINGH NIJJAR
Plaintiffs
AND
SRI GURU SINGH SABHA AUCKLAND INCORPORATED (1229571)
Defendant
Hearing: 13 June 2022 Appearances:
P Amaranathan for Applicant/Defendant M S Khan for Respondents/Plaintiffs
Judgment:
27 January 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 27 January 2023 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Rice Craig, Auckland
Fortune Manning, Auckland
NAGRA AND ANOR v SRI GURU SINGH SABHA AUCKLAND INC (1229571) [2023] NZHC 34 [27
January 2023]
Introduction
[1] The plaintiffs, Daljit Singh Nagra (Daljit) and Gurnek Singh Nijjar (Gurnek) were formerly members of Sri Guru Sabha Auckland Incorporated (the defendant). In August 2020 they issued a prior proceeding seeking an order restraining the defendant from selling the property on which its Sikh temple known as the Gurudwara is situated (the 2020 proceedings). Those proceedings were settled in September 2020 on terms by which the defendant provided certain undertakings regarding the Gurudwara.
[2] In this proceeding the plaintiffs claim that contrary to the rules in the defendant’s constitution, the defendant has declined to provide Daljit with subscription notices to enable him to renew his membership and has refused to accept his tendered subscription payments, thereby excluding him from membership of the defendant. The plaintiffs allege that dozens of other former and prospective members of the defendant have been unlawfully declined membership by refusing to accept their tendered membership fees.
[3] The plaintiffs further claim that on 18 October 2020 shortly after the 2020 proceedings were settled, the defendant unlawfully issued Daljit and Gurnek with trespass notices prohibiting them from entering and worshipping in the Gurudwara.
[4] The plaintiffs claim that the defendant has acted in breach of its own rules, and in breach of natural justice in carrying out the actions by which Daljit has been excluded from membership and both plaintiffs have been issued with trespass notices. They seek relief by way of a declarations that: the defendant has acted unlawfully by purporting to remove members of the defendant; Daljit is and remains a member of the defendant; and any other person whose membership the defendant has to be terminated for non-payment of subscriptions remain members of the defendant. They also seek a declaration that the defendant’s decision to issue them with trespass notices was unlawful, and that notices issued to them are of no effect.
[5] By this interlocutory application the defendant seeks pre-trial orders that a large number of statements made by the plaintiffs in their affidavits and the affidavit of another plaintiff witness, Balvant Singh (Balvant), are inadmissible as evidence in this proceeding. The defendant says that the challenged contents of the affidavits are
inadmissible on the grounds that they are not relevant, are expressions of opinion, are provocative in nature, or are hearsay. They also argue the evidence is inadmissible on several other grounds, including that its limited probative value is outweighed by the extent to which its admission in evidence will extend the duration of the trial or relates to matters raised and resolved in previous proceedings between the parties.
Submissions
The defendant
[6] Ms Amaranathan for the defendant refers to the r 9.76 of the High Court Rules 2016 (the Rules), and ss 7 and 8 of the Evidence Act 2006 as requiring evidence to be relevant and probative to be admitted. She submits that many of the challenged statements are not directly relevant to the issues in the proceeding, are argumentative in nature and contain pejorative statements regarding the conduct of the defendant, particularly Harnek Singh (Harnek). Harnek is and was during the relevant times the committee convener of the defendant, a role within the defendant’s management committee (the committee).
[7] Ms Amaranathan says that if the defendant was required to respond to all of the challenged statements in order to enable the Court to determine whether they are true or not, it would involve the production of a disproportionate volume of evidence on issues of only peripheral significance. She says this would unduly expand the scope of the disputed issues, prolong the hearing and unfairly prejudice the defendant.
[8] Ms Amaranathan says that many of the challenged statements contain allegations about a number of historical events, including for example, whether Harnek is the de facto leader or controller of the defendant, and a large number of allegations about his alleged religious beliefs, his character, his conduct, and other matters which have no relevance to the current proceeding. Counsel further submits that the challenged statements are not directly relevant to the declarations sought by the plaintiffs. They almost entirely relate to events occurring more than eight years ago, namely: Balwat Singh’s membership of the defendant which ended in 2009; Gurnek’s membership which ended in 2011; and Daljit’s membership which ended in 2013. Ms Amaranathan submits that as Daljit’s membership ceased in 2013, evidence
directed at events that occurred subsequently is not relevant to the legality of what occurred in relation to the termination of his membership.
[9] Ms Amaranathan also notes that despite the plaintiffs bringing judicial review proceedings against the defendant in 2020, they have not sought judicial review or otherwise challenged the defendant’s membership procedures and practices until commencing this proceeding in May 2021. Counsel submits the delay in seeking to have these issues determined unduly prejudices the proceedings. Further, the statements relate to numerous allegations and the undue time and expense in determining which is correct, well outweighs the limited probative value derived from an examination of these issues. Ms Amaranathan says that despite the plaintiffs’ allegations, their proceeding is really based on other issues. Those include ideological differences between the plaintiffs and Harnek and the prospect of the defendant being in a sound financial position for the first time since the plaintiffs’ memberships ended as a result of the anticipated sale of the defendant’s property. Ms Amaranathan says that shortly after the 2020 proceedings were settled in September 2020, and a few days prior to the issue of the trespass notices to the plaintiffs, a group of people attempted to murder Harnek Singh. Eight people have been charged with attempted murder.
[10] Ms Amaranathan further submits that many of the challenged statements are inflammatory or provocative, or speculative in nature. Many are directed at Harnek personally. Counsel says that Harnek responding to these statements is likely to exacerbate the already unsafe situation for him. She submits that the challenged statements should therefore be excluded as argumentative evidence pursuant to r 9.76 of the Rules.
[11] Ms Amaranathan says that had the issues raised by the defendant been limited to challenged evidence contained in Balvant’s two affidavits, the defendant would have probably left the question of admissibility and weight to be given to his evidence on those matters to the trial judge to determine. This is because the defendant’s primary concerns relate to the challenged statements made by the plaintiffs themselves. Counsel also accepts that the admissibility of many of the challenged statements would be better determined by the trial judge having regard to all of the
evidence then before the Court rather than being determined at a pre-trial stage with particular statements being considered out of the full evidential context.
[12] As regards Gurnek’s first affidavit,1 Ms Amaranathan identifies the contents of paragraphs 26 and 29. In paragraph 26 Gurnek sets out what he says were a number of ‘red flags’ which indicated to him that everything was not right with the management of the defendant. He refers to the information he received in his role as auditor of the defendant prior to his resignation in 2010. He states that he believes that in his role as operations manager of the defendant, Harnek arranged to employ low cost workers from India who were paid potentially less than the minimum wage. He says that from this pool of young immigrant employees Harnek has recruited a number to become members of the defendant and his loyal supporters. Further, that he appointed one of these young members to be the auditor of the defendant after Gurnek had ceased as auditor, to facilitate the committee’s approval of Harnek’s financial decisions regarding the defendant. He also refers to having concerns regarding the manner in which the defendant’s committee went about arranging the sale of part of the defendant’s real estate by entering into private sales and without advertising the property for sale on the open market. Ms Amaranathan says that if the defendant is required to respond to all of these issues raised by Gurnek, it will have to effectively re-file all the voluminous evidence it had presented on those issues in the 2020 proceedings.
[13] As regards Daljit’s first affidavit,2 Ms Amaranathan refers to the contents of paragraphs 17 and 18 in which he states that Harnek became the de facto voice for Kewal Singh, one of the founding members of the defendant and who had been involved in the purchase of the defendant’s property on which the Gurudwara was situated. He describes a deep rift developing between members of the defendant following purchase of the property and says that approximately 150 people were systematically removed as members by means of the defendant adopting the practice of refusing to accept subscription payments. Ms Amaranathan submits that this evidence is an example of opinion evidence as he has not established an evidential basis for his summary of these factual events or his statement that Harnek
1 Affirmed 17 March 2022.
2 Affirmed 16 March 2022.
systematically side-lined him and his family from the decision-making processes of the defendant notwithstanding his membership of the committee and of the defendant itself. Ms Amaranathan submits that these paragraphs are an example of pejorative statements being made by Daljit in his evidence that if admitted and the defendant is required to respond to them are likely to inflame the situation.
[14] Ms Amaranathan refers to a schedule attached to the defendant’s interlocutory application in which the challenged passages of the evidence are identified and the grounds of objection to their admissibility are succinctly set out.
[15] Ms Amaranathan concludes that the defendant has already been put to the expense of defending the 2020 proceedings brought by these same plaintiffs In the context of this current proceeding, the defendant is incurring costs defending a further claim in which a large number of allegations are being made against it. Counsel submits that the application should be granted and Ms Amaranathan seeks full solicitor client indemnity costs in relation to this interlocutory application.
The plaintiffs
[16] Mr Khan for the plaintiffs submits that the challenged evidence is in each case relevant to the issues in the proceeding. He says that the evidence is necessary to provide a background and context to the issues arising in the proceedings, and that it is evidence that will assist the Court to understand the facts of the case. He submits that background information that provides context and informs the Court regarding the matters taken into account by the decision maker when reaching a decision is of paramount importance for the plaintiffs to show that the decisions challenged were not made in accordance with due process and without regard for extraneous and irrelevant considerations.
[17] Mr Khan submits that the defendant’s interlocutory application is misconceived and wholly without merit. He says that the outcome of judicial review challenges such as the present is often highly fact dependent, and it is therefore important that all relevant information is before the Court. He says that the defendant’s submissions appear to be based on the assumption that the plaintiffs’ claim is being made solely for the purpose of discrediting Harnek and preventing the defendant from
becoming financially secure. Instead, he says the plaintiffs’ singular goal in these proceedings is to ensure that the defendant can in fact flourish and be a cultural and spiritual home for the local community. He says that the plaintiffs were involved in the formation of the defendant and its purpose reflected in its constitution. Counsel says that the members of the defendant have been improperly removed or excluded from membership by people motivated to take over control of the defendant and change its basic principle.
[18] Mr Kahn says that both plaintiffs are devout members of the Sikh Faith. They were both formerly members of a larger Sikh organisation based in Ōtāhuhu, which divided in 2003 into two groups. The plaintiffs were instrumental in establishing the defendant as a new incorporated society in 2002. Following its incorporation and at different points during their respective memberships, both plaintiffs have held positions of responsibility. Daljit having been the treasurer and Gurnek the auditor. Mr Kahn says that as a result of differences between Daljit and Harnek over financial practices and committee decisions, Daljit resigned from his position as treasurer in 2008 but did not renounce his membership. Gurnek resigned from his position as auditor and subsequently renounced his membership in 2010. Mr Kahn says that despite standing down from their roles, both plaintiffs continued to worship regularly at the defendant’s Gurudwara.
[19] Mr Kahn notes that the challenged decisions of the defendant were not made by means of a formal decision making process with any written reasons for the decisions being given. Accordingly, it is necessary and relevant for the plaintiffs to be able to present evidence as to the context and background of the decision making. He submits that all of the challenged evidence is both relevant and necessary to enable the Court to see the circumstances and context in which the defendant’s decisions were made. Mr Kahn notes that the defendant has already filed its evidence in affidavits by Harnek and Baljinder Singh Virk. Counsel notes that in its evidence the defendant has not denied the truth of the plaintiffs’ allegations. He submits that in the absence of evidence from the plaintiff regarding the context in which the decisions were made the Court would be left to speculate as to the context.
[20] He submits that it would be contrary to natural justice for the admissible evidence to be restricted in the manner sought by the defendant.
[21] Responding to the defendant’s submission that admitting the challenged evidence will be unfairly prejudicial to the defendant and that its limited probative value is outweighed by the prejudice caused by its admission, Mr Kahn says that not admitting the evidence would unfairly prejudice the plaintiffs. It would result in the Court not hearing evidence that would enable it to make a properly informed decision regarding the facts and circumstances in which the challenges were made.
[22] Mr Kahn notes that the defendant has itself presented evidence which would fail to be admitted on the grounds it is relying on to challenge the plaintiffs’ evidence. He refers to the evidence regarding the alleged attempted murder of Harnek by persons having no connection to the plaintiffs.
[23] Mr Kahn notes that in his affidavit affirmed on 7 April 2022, Harnek describes the process by which Daljit’s membership of the defendant was terminated. And he states that at an AGM on 6 October 2013 the membership resolved that if Daljit wanted to participate as a member of the defendant he would need to apologise for his previous actions of attending part way through an open meeting of the defendant, accompanied by 60 other persons, and refusing to leave when asked. Harnek says that at an AGM of the defendant on 5 October 2014 the membership resolved that Daljit’s membership would be revoked until he apologised for his behaviour. He states that he subsequently told Daljit about the decision, and because Daljit had not apologised his cheques and correspondence regarding the payment of his members’ subscription were returned to him. Mr Kahn further notes that the provisions of the defendant’s constitution provide that the committee may at any time by letter invite a member to resign for acting in a manner as may bring discredit on the defendant, or breach its rules or for serious misconduct. He notes that the procedure described in the rules of the
defendant3 was not followed, and its action of subsequently rejecting and returning his subscription payments was contrary to the constitution.4
[24] Mr Kahn acknowledges that Daljit’s evidence regarding the alleged unlawful removal or exclusion of 70 other members of the defendant is hearsay. He says however that Daljit has explained that in many cases those people are elderly and they have told him that they are afraid to be identified because of their fear of recriminations from people involved with the defendant. He also accepts that Daljit does not need to have recourse to evidence relating to the experiences of other persons regarding the termination of the membership of the defendant, as he has direct evidence regarding whether the defendant complied with the provisions of the constitution when deciding to terminate or revoke his membership pending receipt of an apology.
[25] As regards the challenges to the defendant’s decisions to serve the plaintiffs with trespass notices, Mr Kahn notes that the defendant’s Gurudwara is a public facility and members of the public are welcome to enter and worship there irrespective of whether or not they are members of the defendant. He submits therefore that in relation to the decisions to serve the plaintiffs with trespass notices, factual context whereby the defendant and its office holders had been taking steps to exclude members and people opposed to them would be relevant as informing the Court’s determination of the reasons for issuing the trespass notice and whether those reason were justified and lawful.
[26]The plaintiffs also seek costs on this interlocutory application.
Law
[27] The evidence in support and in opposition to an application for judicial review must comply with the general rules of evidence governing admissibility. Section 7(1) of the Evidence Act provides that evidence that is not relevant is not admissible in a proceeding. Evidence is relevant in a proceeding if it has the tendency to prove or
3 Rule 7(d) provides that the committee may at any time invite any member to resign within a specified time for acting in a manner to discredit the defendant or its member or for breach or the rules and/or regulations of the defendant or for serious misconduct. .
4 Rule 8(1) provides that members are to pay their annual subscriptions within one calendar month of a subscription notice being posted to them which did not occur.
disprove anything that is of consequence to the determination of a proceeding.5 Section 8 provides that evidence must be excluded if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on or needlessly prolong the proceeding.6
[28] Evidence in judicial review proceedings must be directed at explaining the decision making process, the information and materials upon which the decision was made and the reasons for the decision. The Supreme Court in Ririnui v Landcorp Farming Ltd observed:7
The courts in both New Zealand and the United Kingdom have pointed out that the fact-dependent nature of judicial review means that those whose decisions are challenged have a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision
...
[29] Here, the record of the decision to exclude Daljit and ‘revoke’ his membership of the defendant is limited to the brief record of a resolution passed by the members of the defendant present at an AGM held on 5 October 2014 recorded in the minutes of that meeting. While there is no formal record of the defendant’s decision to issue trespass notices to the plaintiffs, in his affidavit8 Harnek has set out the background leading to the decision being made.
[30] The plaintiffs allege that the defendant breached its duty to observe the rules and principles of natural justice when it made the decision to revoke Daljit’s membership. They further allege that when making the decision to issue trespass notices to the plaintiffs, the defendant did so for an improper purpose, namely to exclude or “side-line” the plaintiffs as critics of Harnek’s leadership and management decisions. The plaintiffs also allege that the defendant’s decision to issue them with trespass notices was procedurally improper and unreasonable. As a consequence of the basis on which judicial review and relief is sought by the plaintiffs, the factual matters covered in their affidavits are necessarily fairly wide ranging and seek to show the circumstances and context in which the defendant’s challenged decisions were
5 Evidence Act 2006, s 7(3).
6 Section 8(1).
7 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [105] per Elias CJ and Arnold J.
8 Affirmed 7 April 2022.
made. This is in order to demonstrate that the only reasonable inference to be drawn is that the decisions were made in breach of natural justice, based on extraneous and irrelevant considerations, and made in pursuance of improper purposes.
[31] In Taylor v The Chief Executive of Department of Corrections the Court of Appeal observed: 9
A number of affidavits were filed in the High Court. It seems likely they were received without objection. As the Judge acknowledged, the general rule is that judicial review proceedings are determined on the basis of the material before the decision-maker at the time of the decision. A decision-maker may file affidavits explaining relevant facts and circumstances at the time the decision was made. But where, as here, the record reveals an adequate record of the decision and the facts before the decision-maker, the scope for additional explanatory evidence will be limited. Evidence addressing allegations of breach of natural justice, alleged bias or improper motive or the consequences of the relief sought are examples of exceptions to this general rule.
[32] And in Donovan v Graham, McGechan J dealing with an application for pre-trial admissibility rulings in judicial review proceedings where the applicants had applied to strike out substantial portions of the respondent’s affidavits on the grounds that they contained evidence which was irrelevant, secondary evidence, opinion evidence submission and hearsay, said:10
In this situation, the Court is faced with something of a dilemma. Pretrial objections as to evidential matters are not particularly common. The more usual situation is one where the Judge picks his way through the total material at ultimate trial stage, discarding the dross. Where, however, pretrial objection is indeed taken the Judge must act in a manner which will best promote the overall interests of justice given the facts of the particular case. The Judge must bear in mind risks involved in premature exclusion of evidence which on the more fully informed basis emerging at trial might be seen as admissible. He must keep in mind the desirability of the case being kept within bounds, and open to efficient disposal. It is important affidavits not be allowed to mushroom, with irrelevance, accusation upon accusation, and with the parties becoming increasingly and unproductively inflamed. Having said that, it is also important the Court not become buried in extensive interlocutory battles over evidential points of relatively trivial importance, without time to decide substantive disputes. There is room for pretrial pragmatism particularly over lesser matters. Each case must depend very much on its own facts.
9 Taylor v The Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33] (footnotes omitted).
10 Donovan v Graham (1991) 4 PRNZ 311 (HC) at 313314.
[33] A plaintiff seeking judicial review of a decision or decisions affecting them and alleging breach of natural justice, bias, or improper motive is entitled to produce evidence to show the factual context and circumstances under which the decision was made. Evidence in order to show the existence of factors or considerations which are alleged to have been taken into account and which, if they were, would affect the validity of the decision by reason of: a breach of natural justice; reliance on irrelevant considerations; failing to take relevant considerations into account; or because the decision was made on the basis of an improper motive.
[34] Affidavits filed in support or opposition must be confined to matters that would be admissible if given in evidence at trial.11 The Court may refuse to read an affidavit that unnecessarily contains any argumentative matter.12 Affidavits should not contain pejorative characterisations of the conduct of the opposing party.13 Furthermore, a deponent is not permitted to express their opinion on the very matters which the Court has to decide, or express their belief as to events or matters without providing the source of the information upon which their belief is based.14
[35] However, these rules are not necessarily to be rigidly complied with. In Makin v Hayward Master Williams QC referring to the former High Court Rules 252 and 510 which were expressed in the same language as the current r 9.76 explained:15
Those rules tempered by the effect of a number of decisions. In the first place, in Patrick v A-G …, in dealing with an application relating to an affidavit containing hearsay evidence on an interlocutory application, Shorland J held:
“But I cannot state too strongly that the Rule is not to be construed as giving a party a right to file affidavits which include hearsay evidence, but it is to be construed as giving the Court power in proper cases to grant a party the concession of placing hearsay before the Court where the cost, delay and inconvenience in obtaining an affidavit from a deponent in whose knowledge such matters are would be out of proportion to the reasonable necessities of the case.”
11 High Court Rules 2016, r 9.76(1)(d)(i).
12 Rule 9.76(2)(a)(i).
13 Mike Pero Mortgages Ltd v Pero [2018] NZHC 528 at [38]
14 Makin v Hayward (1991) 5 PRNZ 139 (HC) at 141, citing Hanna v Auckland City Corp [1945] NZLR 622 (CA) at 632 per Myers CJ.
15 At 141.
Admissibility of evidence
Affidavit of Balvant Singh (affirmed 16 March 2022)
[36] The defendant’s objection to the admissibility of the challenged evidence is principally based on relevance. The defendant challenges the contents or parts of the contents of 16 paragraphs in the affidavit of Balvant affirmed on 16 March 2022. Twelve of those challenges are on the grounds that the evidence is not relevant.
[37] Balvant explains in his affidavit that he previously held the position of head of business banking for the ASB Bank before leaving the bank in 2007 to commence work on his own account in the finance industry. Soon after leaving the bank he was asked to assist the defendant with arranging a loan to purchase a property at Shirley Road, Papatoetoe (the Shirley Road property). Having arranged a loan through the BNZ Bank, Balvant was asked to join the defendant’s committee. He subsequently resigned from the committee around 18 months later in May 2009, but nevertheless maintained his membership of the defendant. In the challenged contents of his affidavit he sets out the reasons for his resignation from the committee which include his observations that:
(a)For all intents and purposes Harnek who had been a member of the committee since 2008 was “the de facto leader of the [defendant]”.
(b)In his opinion Harnek’s leadership had been detrimental to the interests of the defendant and the Sikh community at large.
(c)This observation was consistent with Harnek having been excommunicated by the supreme temporal seat of the Sikhs located in Punjab, India.
(d)From his banking and corporate experience it was apparent to Balvant that Harnek was running the defendant in accordance with his own agenda to the exclusion of all other interests. If someone was not supportive of him or were critical of his actions, they would run the risk
of being ostracised by other members of the defendant or defamed on one of Harnek’s social media accounts.
(e)Other concerns included: that the committee allowed part of the Shirley Road property to be leased to a mechanic business without the necessary resource consents; the committee began offering accommodation to international students at the Shirley Road property without the necessary resource consents and notwithstanding that the premises were to be used as a temple and not residential accommodation; Daljit’s sister who was the head of the Punjabi language school associated with the defendant was unfairly dismissed for reasons related to Daljit challenging Harnek Singh’s decisions, which resulted in a mediated settlement; although as a charitable organisation the defendant did not appear to make any charitable donations to the community at large; from conversations he heard relating to the service of the trespass notices on the plaintiffs it was clear that the defendant’s intention was undertaken in order to embarrass the plaintiffs in front of the community and warn off others minded to oppose Harnek; and a group of Harnek’s supporters tried to intimidate Balvant shortly after complaints were made to the Auckland Council regarding the misuse of the defendant’s premises.
[38] Balvant also says that he was aware that the defendant adopted a practice of declining to accept subscription payments as a means of terminating memberships. He says that the lack of charity and hospitality demonstrated by the committee runs contrary to the core beliefs of the Sikh religion and the defendant’s failings are the result of the beliefs and motivations of Harnek.
[39] As an experienced banker with corporate and business banking experience Balvant was well qualified to assess the quality of the management of the defendant being conducted by the committee and well able to observe that the defendant’s management was effectively in the hands of Harnek. As a member of the committee for approximately 18 months he was in a position to observe and experience the management practices employed by Harnek and the observations he makes appear to
have a factual foundation. The basis for this evidence may be explained in further evidence or under cross-examination at the hearing, but as it stands, I consider this evidence of Balvant Singh is relevant to the issues in the proceeding. Furthermore, to the extent that he expresses his opinions regarding Harnek’s management practices, I consider that his corporate experience qualifies him to give such opinion evidence.
[40] I am also satisfied that the challenged passages of Balvant’s evidence are probative and that their probative value is not outweighed by any prejudicial effect on the proceeding. The defendant has failed to show that admission of the evidence would give rise to any unfair prejudice to the defendant.
[41] I also reject the submission that aspects of Balvant’s evidence are provocative and speculative.
[42] I accordingly reject the defendant’s application for an order finding the specified passages of the affidavit of Balvant to be inadmissible.
Affidavit of Daljit Singh (affirmed 16 March 2022)
[43] The defendant objects to 42 paragraphs, groups of paragraphs or statements in Daljit’s affidavit. Here too the principal ground relied on is that the evidence is not relevant.
[44] In paragraphs 10, 11 and 12 Daljit briefly describes the history of the formation of the defendant. These paragraphs contain information which is relevant and admissible as setting the background for the formation of the defendant. In paragraph 14 Daljit refers to a disagreement between the plaintiffs and other founders of the defendant over the issue of the purchase of the Shirley Road property. Again it is background information that informs the Court of the events preceding the critical events to be determined. The evidence is based on direct observations and participation by Daljit in the events described. I reject the defendant’s submission that this is opinion evidence. I find these paragraphs are relevant and admissible.
[45] In paragraph 17 Daljit states that Harnek had become the de facto voice for Kewal Singh in relation to the management of the defendant and had brought or
introduced a large number of people as members of the defendant to bolster his and Kewal Singh’s support. The defendant submits that this evidence is opinion evidence and is not relevant. I find that it is relevant as background information as it informs an assessment of how Harnek conducted his responsibilities. I reject the submission that it is opinion evidence. I find that it is admissible evidence.
[46] In paragraph 18 of his affidavit Daljit states that Harnek and Kewal Singh used the people who they had illegally made members to physically snatch the bag containing all the defendant’s documents and then claimed that as they had the documents they had taken over control of the defendant. The defendant submits that this evidence is provocative and not relevant. I consider the evidence is relevant as informing an assessment of Harnek’s role and his conduct more generally relating to matters he considered as affecting the defendant and who would have control of it. It is not provocative if it is correct, and whether it is accepted as being an accurate account of what occurred is a decision to be made by the trial judge having heard the evidence and possibly cross-examination of Daljit. I find that it is admissible evidence.
[47] In paragraph 19 Daljit explains why two senior members of the defendant stepped back from participating in its operation to avoid further confrontation and enable Harnek and Kewal Singh to proceed with negotiations for the purchase of the property on their own. The defendant objects to the evidence on the grounds that it is opinion evidence and hearsay. While Daljit does not state how he knew the reason the two senior members of the defendant stood down, it is implied that he was informed of the reason or that it was well known within the defendant community. This is a detail that may be clarified by further evidence or cross-examination at the trial. It is relevant to show the development of the dispute that underlies this proceeding. Accordingly I am not prepared to find that the evidence is inadmissible at this stage, and I leave that issue to be determined at the trial.
[48] In paragraph 20 Daljit expresses his belief that the senior members who stepped back from the operation of the defendant demonstrated their good character and commitment to the best interests of the defendant. While the trial judge may infer
that to be the case, Daljit’s opinion is of no probative value and it is not relevant. I accordingly rule the contents of that paragraph inadmissible.
[49] In the first sentence of paragraph 25 of his affidavit Daljit states that following the purchase of the Shirley Road property in August 2007, Harnek attempted to expand his influence throughout the defendant organisation. The defendant objects on the grounds that the statement is inadmissible as opinion evidence. While it may well be Daljit’s view as to what occurred, his statement appears to be based on his direct observations of Harnek’s actions, and it is not opinion evidence. It is relevant background information and I reject the defendant’s objection to its admissibility.
[50] Also in paragraph 25 of his affidavit Daljit refers to the deep rift which developed within the defendant which resulted in more than half of the congregation of 150 people being systematically removed from membership. The defendant objects to Daljit’s evidence that: “A large number of these members including myself, have been removed simply by a refusal to accept subscriptions”. The defendant objects on the grounds that it is hearsay and Daljit has no personal knowledge of the reasons why other members had their membership terminated. I agree that Daljit’s evidence on this matter is hearsay and inadmissible. I note however that in Balvant’s evidence he states that he was aware of the tactic of not accepting subscriptions being employed to remove members who were “at odds with Harnek, including the plaintiffs”, and the basis of his knowledge appears to be derived from his involvement in management of the defendant. As I have stated, this is a matter that will more appropriately be determined at the trial on the basis of full evidence.
[51] In paragraph 27 Daljit states that shortly after he had been appointed as treasurer of the defendant he refused to comply with Harnek’s request that he sign all of the cheques in the defendant’s chequebook. He explains that the defendant’s account required two authorised signatures on all cheques. In paragraph 27.5 Daljit states that his refusal “enraged” Harnek. The defendant objects to that evidence on the basis that it is an expression of Daljit’s opinion as to another person’s state of mind. However, from Daljit’s evidence it is clear that he directly observed Harnek’s reaction. His evidence that Harnek was enraged and requested him to resign is direct evidence
based on observation and not opinion evidence of Harnek’s state of mind. I accordingly reject this objection to Daljit’s evidence.
[52] In paragraph 29, Daljit refers to substantial disagreement arising among the members when the defendant agreed to sell a house on its property to the defendant’s then treasurer without first obtaining a valuation or advertising it for sale. The defendant objects to this evidence on the grounds that it is hearsay. However it appears to be evidence based on direct observation on the part of Daljit, and I reject this objection.
[53] In paragraphs 31 and 32 Daljit states that Harnek attempted to dismiss Daljit’s sister from her position as head teacher of the Punjabi language school associated with the defendant’s Gurudwara. He says that his sister took the matter to the Employment Relations Authority which resulted in a mediated settlement payment being made by the defendant to her. Daljit says that following the mediated settlement Harnek began to degrade and intimidate Daljit’s family on his social media pages and his radio show. The defendant objects to the evidence on the grounds that it is opinion evidence, is provocative, and is not supported by any direct evidence. The defendant also says that it is not relevant. The evidence describes Harnek’s behaviour towards Daljit’s family members and his evidence of Harnek’s degrading of Daljit’s family appears to be based on direct observations made by Daljit. It is evidence of the disharmony between Harnek and Daljit’s family and the manner he conducted himself in the course of his dealings with them or about them. It is therefore relevant and probative as informing the Court’s assessment of his reasons and motives when making or participating in the making of the challenged decisions including the issuing of the trespass notices. I therefore find the evidence to be admissible and I reject the defendant’s objections to it.
[54] The defendant also objects to the contents of paragraphs 33 to 37 inclusive on the grounds that the evidence set out in those paragraphs is not relevant, is opinion evidence, is not supported by evidence or is provocative. In paragraphs 33 and 34 of his affidavit Daljit refers to steps he and his family members took regarding their concerns about Harnek’s conduct towards them which they considered was harassment, and what they considered was his mismanagement of the defendant. This
evidence is based on Daljit’s direct involvement in those matters or his direct observation of what he has described.
[55] However, in paragraph 35 of his affidavit he refers to other instances of harassment of members of the defendant community by Harnek. His evidence is supported by reference to a statement of claim filed in proceedings brought by an unrelated party against Harnek. The contents of the statement of claim and the allegations it contains are hearsay and inadmissible in this proceeding, and I uphold the defendant’s objection. In paragraph 36 of his affidavit Daljit refers to proceedings brought by two former employees of the defendant alleging breaches of the Employment Relations Act 2000 which claims were successful. Daljit has annexed the decision of the Employment Relations Authority which directed that its decision be sent to the Inland Revenue Department. The matters upon which those complaints and proceeding were based may well inform the assessment of Harnek Singh’s conduct or management of the defendant, but for that to occur would require direct evidence of the matters traversed in the proceeding and referred to the Authority’s decision. I accordingly uphold the defendant’s objection to the admissibility of paragraphs 35 and 36 of Daljit’s affidavit. My ruling does not however preclude any relevant matters arising from those documents being raised in cross-examination of Harnek should that occur.
[56] In paragraph 37 Daljit states that in 2013 when he was still a member of the defendant and attended meetings such as the defendant’s AGM, his practice of posing questions to Harnek regarding his management annoyed Harnek and set the stage for the subsequent events central to this proceeding. The defendant objects to that evidence on the grounds that it amounts to Daljit’s opinion as to what was in Harnek’s mind. However, Daljit is describing Harnek’s reactions to the questioning raised by Daljit and his observation that Harnek was annoyed by his actions. The evidence is directly relevant to the existence of reasons why Harnek may have been motived by extraneous considerations when he participated in the defendant’s decisions which are challenged. I accordingly find this evidence to be admissible, and I reject the defendant’s objection.
[57] In paragraph 49 Daljit states that he believes that the defendant’s action of ignoring his correspondence and declining to accept his subscription payments was due entirely to him having challenged Harnek’s leadership of the defendant. The defendant objects to that evidence on that grounds that it is an expression of Daljit’s belief or opinion. While it is expressed as belief, it is a statement of the essential allegation being made by Daljit in this proceeding that the defendant’s decisions were based on extraneous considerations and motivated by irrelevant considerations such as render them unlawful. I accordingly reject the defendant’s objection to this evidence.
[58] In paragraph 50 of his affidavit Daljit states that at least 70 other members of the defendant have also had their subscription payments rejected. He says that many of these “former members” are elderly and have limited ability to communicate in English. The defendant objects to this evidence on the grounds that it is hearsay. I agree that it is hearsay and I therefore find the contents of this paragraph to be inadmissible. But as I have said the practice of returning or rejecting subscription payments is something that appears to have been directly observed by Balvant. In paragraph 51 of his affidavit Daljit says that he has described these people as “former members” because in his opinion the fact that they are no longer financial members is no fault of their own. The defendant objects to Daljit’s expression of opinion, and I agree that it is. It is a matter for submission rather than evidence and I uphold the objection.
[59] In paragraph 52 of his affidavit Daljit states that it is common knowledge within the defendant’s community that since 2009 the defendant has been selectively sending out subscription and AGM notices only to those people who support Harnek and his views, and not to anyone who opposes him. The defendant objects to this evidence on the grounds that it is hearsay and involves speculation. Daljit does not disclose the source of his information and it appears to be based on speculation and supposition. I accordingly find this evidence to be inadmissible.
[60] In paragraph 53 Daljit states that he estimates that the “vast majority” of the 70 “former members” he referred to have, like him, unsuccessfully attempted to pay their subscriptions and had them rejected by the defendant without any reasons being
given. This evidence is also hearsay and accordingly inadmissible. Similarly in paragraph 54 Daljit says that to his knowledge neither he or any of the others whose subscriptions have been declined have done anything that could have resulted in the committee asking them to resign. While Daljit can speak for himself on that issue he has no basis for his evidence so far as the other former members are concerned. I accordingly find that part of paragraph 54 in which he refers to the experience of other former members having their membership subscriptions rejected to be inadmissible hearsay.
[61] In paragraph 55 Daljit states that he “feel[s]” that Harnek has no legitimate reasons to revoke the memberships of people who have conflicting views from his own and that he has manipulated the defendant’s rules to remove and silence them. The defendant objects to that evidence on the grounds that it is opinion evidence and is provocative. In my view it is properly seen as being in the nature of a submission. I rule it to be inadmissible on that basis.
[62] In paragraph 56 Daljit refers to complaints made against Harnek to the Broadcasting Standards Authority (BSA) which he says have been upheld. He exhibits copies of two written decisions of the BSA. For the same reasons as applied to the decision of the Employment Relations Authority discussed above at [55], the decisions of the BSA are inadmissible as evidence of the events described or referred to as being the subject of the complaints determined by the decisions. I accordingly find that although Daljit can give direct evidence about how Harnek has conducted himself on social media and on his radio show that Daljit has himself read or heard, his evidence based on what other people have told him is inadmissible hearsay.
[63] In paragraphs 57 and 58 Daljit says that many of the former members he has referred to are fearful of retribution by Harnek if they speak out against him. It appears that Daljit has spoken to a number of these people, and while he can give evidence of their unwillingness to become directly involved in these proceedings, he cannot give evidence of their reasons which would inevitably involve him in relaying inadmissible hearsay. In paragraph 59 Daljit refers to a 2020 petition calling for Harnek’s removal from the Gurudwara. The petition which is exhibited to Daljit’s affidavit and is signed by over 200 followers of the Sikh religion condemns Harnek and others for the use of
insulting language in respect of the founders of the Sikh religion, and its history. The petition and its contents are not relevant to the issues in this proceeding. I find the contents of paragraph 59 are inadmissible.
[64] In paragraphs 60 and 61 of Daljit’s affidavit he refers to the effect of reduction of membership of the defendant on its financial position leading to a decision to sell another part of its property and to modify its constitution to allow temporary visa holders to become members. These matters are of no relevance to the issues in this proceeding. I accordingly find that the contents of paragraphs 60 and 61 are inadmissible.
[65] The defendant objects to the last sentence in paragraph 63 of Daljit’s affidavit. The statement asserting that Harnek has illegally occupied a committee position and has become the de facto owner of the defendant is effectively a submission and as such inadmissible as evidence.
[66] In paragraph 65 Daljit states that the trespass notice served on him was signed by Mandip Singh who did not have authority to make the decision and who did not qualify to be a member of the executive of the defendant at the time. The trespass notice is exhibited to Daljit’s affidavit and is signed by Mandip Singh as occupier or person authorised by the occupier of the Shirley Road property. Daljit’s evidence in paragraph 65 is in the nature of a submission and as such is inadmissible as evidence.
[67] In paragraphs 68 and 69 Daljit states that in 2018 Harnek was excommunicated from the supreme Sikh body known as Sri Akal Takhat Sahib. Despite his excommunication Harnek has continued his involvement in the defendant contrary to its constitution. The fact of his excommunication may be relevant to the issue of whether his continued involvement in the operation of the defendant is in accordance with the defendant’s constitution. I therefore find that evidence to be admissible. I accordingly reject the defendant’s objections made on the basis that the evidence is not relevant, opinion evidence or provocative.
[68] In paragraph 70 Daljit describes the committee’s appointment of auditors. He says auditors were prechosen by committee members notwithstanding their lack of
financial experience or qualifications, but on the basis that they would co-operate and place their signatures on the financial accounts whenever asked to do so. This evidence is essentially Daljit expressing his conclusion on the matter and involves speculation and hearsay. I accordingly find that it is inadmissible. I note however that Gurnek Singh describes his experience and dealings with Harnek in his role as the defendant’s auditor.
[69] In paragraph 71 Daljit states that when Gurnek was appointed auditor, he was refused books of accounts and invoices for auditing purposes that he requested. He says Gurnek subsequently resigned in frustration. The defendant submits this evidence is irrelevant and inadmissible hearsay. Inherently, the statement involves events Daljit did not himself witness and Gurnek is better placed to address, and does address, in his affidavit. I therefore find this evidence to be inadmissible.
[70] In paragraph 72 Daljit refers to the 2020 proceedings. The fact of those proceedings and the nature of the dispute is relevant as context in this proceeding, and I find the contents of this paragraph to be admissible insofar as it describes the issues in dispute and confirms that a settlement was reached. In other respects the contents of paragraph 72 are conclusory and in the nature of a submission. I find those parts of the evidence in paragraph 72 to be inadmissible opinion.
[71] The defendant also objects to the evidence set out in paragraph 73 in which Daljit states that the defendant’s Gurduwara was closed in August 2021 and was also closed for the first time on the date of the Sikh Baisakhi festival. That evidence is not relevant to any of the issues arising in this proceeding and I accordingly find it to be inadmissible.
[72] In paragraph 74 Daljit explains his reasons for bringing the proceeding. I find that to be relevant as background evidence and admissible.
[73] In paragraph 75 he expresses the hope that the findings of the Court will exonerate all the members of the Sikh community who have been ill-treated and excluded from the defendant’s activities by reason of Harnek’s actions. Such a statement misconceives the scope of this proceeding in which the sole issue is the
validity of the three challenged decisions. I accordingly find the contents of paragraph 75 to be inadmissible as not relevant to the issues in the proceeding.
Affidavit of Gurnek Singh Nijjar (affirmed 17 March 2022)
[74] In paragraph 12 of his affidavit Gurnek states that in the 1990’s the Sikh community in Auckland was “tight and singular” in nature until Harnek began to cause a significant divide. The defendant objects to the admissibility of that evidence on the grounds that it is not relevant, opinion, and provocative. The defendant relies on Mike Pero Mortgages Ltd v Pero where this Court stated that evidence should not “contain pejorative characterisations of the conduct of the opposing party”16 I consider the evidence is relevant as informing an assessment of the role played by Harnek in the conduct of the defendant and the effect on the community which worshipped and congregated at the defendant’s Gurudwara. Any relevant evidence which involves criticism of the conduct of another party or person associated with the proceeding tendered to prove the allegations on which their claim or case is based will necessarily involve a pejorative characterisation of that party. It is not a basis for finding the evidence inadmissible.
[75] In paragraph 17 Gurnek expresses his view that Harnek’s conduct was instrumental in causing the conflict and in-fighting that developed between members of the defendant and which led to other founding members resigning their positions and a large proportion of regular members leaving. The defendant submits the evidence is not relevant, opinion evidence, and provocative. I consider that as a founding member of the defendant and former auditor of the defendant Gurnek is in a position to express his opinion based on his direct experience and observations of Harnek’s actions and their effect on the membership. The evidence is relevant as background information and I find it to be admissible.
[76] In paragraphs 20 and 21 Gurnek refers to Harnek’s excommunication by Sri Akal Takhat Sahib. The defendant submits that this evidence is inadmissible by reason of not being relevant, opinion evidence, provocative, and relating to “an ecclesiastical matter the Court cannot determine”. However the excommunication of Harnek is a
16 Mike Pero Mortgages Limited, above n 13, at [38].
matter of fact that is relevant as background information. I reject the defendant’s objection and find it to be admissible.
[77] In the first sentence of paragraph 22 Gurnek states that the Takanini Sikh group that the defendant broke away from has subsequently flourished. He says it is now the largest Sikh organisation in Auckland, with over 700 members and regularly donates to the wider community. The defendant objects to this evidence on the grounds that it is not relevant and the description of the Takanini group as “flourishing” is opinion evidence. I reject the defendant’s objection. The evidence is relevant as background information and may inform the Court’s assessment of the effects of Harnek’s role and the conduct of the affairs of the defendant. The description of the success of the Takanini group as flourishing is not opinion, it is a factual observation. I accordingly find the challenged evidence admissible.
[78] In paragraph 23 Gurnek states that the exodus of more than half of the defendant’s members is due to the unhealthy influences of Harnek. The defendant objects to this evidence on the grounds that it is not relevant and opinion evidence. For the same reasons that applied to the challenge to Gurnek’s evidence in paragraph 17 of his affidavit, discussed above at [75], I find this evidence to be admissible.
[79] The defendant objects to the contents of paragraphs 24 to 27 of his affidavit in which he describes his disagreements with Harnek which led to him resigning from the committee. He describes a number of “red flags” that indicated to him that something was not right about how the defendant was being managed by Harnek. The defendant submits that the contents of these paragraphs are not relevant, are unfairly prejudicial and will needlessly prolong the hearing. Further, that the evidence does not tend to prove or disprove the carrying out of measures taken by the defendant to reject membership subscription or the lawfulness of the trespass notices. I am satisfied that the evidence is relevant as providing the reasons for the serious disagreements between Daljit and Harnek and the existence of factors that may have featured in or influenced the relevant decision making of the defendant. I accordingly reject the defendant’s objection.
[80] The defendant also objects to the evidence in paragraph 25 on the grounds that it is not relevant, provocative, and contains an expression of opinion as to the state of mind of another person. Gurnek states that after he had challenged Harnek regarding what he considered were his wrongful actions, Harnek took a disliking towards him and his family. That is a statement based on his observations and experience of Harnek’s behaviour towards him and his family. It is not inadmissible as opinion evidence and, because it is relevant, is admissible.
[81] In paragraph 26.2 of his affidavit Gurnek states that he is aware that the role of auditor of the defendant was conducted by his predecessors and successors in a manner whereby they were provided with financial documents and instructed to sign them, as he himself was after he was appointed as the auditor. Gurnek’s evidence that his predecessor and successor auditors were instructed to sign financial documents would necessarily be based on what he was told and is therefore inadmissible hearsay. However he can give direct evidence of having himself been instructed to sign the financial documents he was given. I accordingly uphold the defendant’s objection as regards the evidence of what practice was adopted in respect of Gurnek’s predecessors and successors in their role as the defendant’s auditor. His evidence regarding having been instructed to sign financial documents himself is admissible.
[82] The defendant also objects to the evidence in paragraph 26.3 which states Gurnek’s belief that Harnek in his role of operations manager of a structural engineering business employed low cost workers from India and “potentially” paid them less than the minimum wage. He says it was from this group of young immigrant workers Harnek recruited his ‘faithful supporters’ as new members of the defendant. This evidence is at best based on hearsay. Gurnek does not refer to any source of this information or basis for his allegations. I accordingly find that this evidence in paragraph 26.3 of his evidence is inadmissible.
[83] The defendant objects to the evidence in paragraph 26.5 of Gurnek’s affidavit in which he refers to having concerns about the defendant selling assets and the defendant’s application of rental income of approximately $150,000 per annum. This evidence is speculative and of no probative value. I accordingly find the evidence in this paragraph to be inadmissible.
[84] The defendant challenges the evidence in the second sentence onwards of paragraph 26.6 on the grounds that it contains an expression of opinion, is hearsay, and involves an expression of Gurnek’s “belief” that Harnek was motivated to dismiss Daljit’s sister from her position to exact revenge on Daljit and his family for notifying Auckland Council of the resource consent issues relating to the Shirley Road property and for his question of Harnek’s decsions. This evidence is an expression of Gurnek’s conclusion regarding Harnek’s motivation for dismissing or attempting to dismiss Daljit’s sister from her teaching position. Therefore, it is not admissible as proof of what was Harnek’s motive in doing so. However the Court will hear the evidence that Harnek did attempt to terminate Daljit’s sister’s employment and the plaintiffs will no doubt make a submission as to what his motive or reasons for doing that were.
[85] The defendant objects to the evidence in paragraphs 26.7 and 26.8 on the ground they are inadmissible hearsay. In those paragraphs, Gurnek states that he has become aware that since 2009 at least 70 members of the defendant had ceased to be members due to non-payment of subscriptions in circumstances where they had not been sent subscription notices. And despite having attempted to pay their subscriptions, they were declined without any reasons being given. It appears this evidence is not based on direct observation but on what Gurnek has been told. I accordingly find his evidence in paragraphs 26.7 and 26.8 to be inadmissible hearsay.
[86] The defendant objects to the evidence in paragraph 26.11 of Gurnek’s affidavit in which he says that the committee have made decisions which have breached the Resource Management Act 1991 by leasing premises to a mechanic business and providing residential accommodation to international students within the Gurudwara. The defendant objects to this evidence on the ground that it is provocative in nature. The evidence is at best of only peripheral relevance to the issues in this proceeding as tending to show the manner in which the defendant’s commercial and business interests were conducted. I find that it should be excluded as its prejudicial effect of requiring a response by the defendant outweighs its probative value.
[87] The defendant objects to the evidence in paragraph 26.12 of Gurnek’s affidavit in which he states that when he was auditor he requested that he be given documents to enable him to carry out his function and responsibilities as auditor and the requested
documents were not provided. The defendant objects to the evidence on the grounds that it is provocative in nature. I consider the evidence is relevant to the manner in which the defendant’s affairs were being conducted, and therefore relevant to the reasons for the existence of the differences between Daljit and Harnek and whether the challenged decisions were affected by extraneous considerations. I find the evidence contained in paragraph 26.12 to be admissible.
[88] In paragraph 26.15 of his affidavit Gurnek states that it is “common place for Harnek to defame members of our community…” via his use of social media and his radio show which is run and broadcast from the defendant’s premises. Gurnek states that Harnek never names people directly, but provides sufficient personal details to enable listeners to readily ascertain who he is referring to. The defendant challenges this evidence on the grounds that it is provocative, and amounts to hearsay and opinion evidence. I consider that the evidence is admissible. It is clearly based on what Gurnek has himself heard and seen and it is relevant to show Harnek’s argued motivations to somewhat indirectly cause harm to or damage the reputations of certain persons by using the means available to him in his management role of the defendant. The evidence is therefore admissible as relevant to the issue of whether the challenged decisions were made on the basis of irrelevant and extraneous considerations.
[89] The defendant objects to Gurnek’s evidence in paragraph 26.16 of his affidavit in which he states that members of the Sikh community have become too scared to speak out against Harnek for fear of being publicly shamed. The defendant says that the evidence is inadmissible hearsay. Gurnek is and has been in a position to observe the effect of Harnek’s actions and any chilling effect it has had on the willingness of members of the community to speak out against him. His evidence on this point is not hearsay. I find that the evidence is relevant and admissible. The defendant also objects to Gurnek’s further evidence in paragraph 26.16 in which he refers to some “brave” former members of the community bringing charges of defamation of character in court and making complaints against Harnek to the BSA which have been “upheld”. The defendant objects to this evidence on the grounds that it is provocative and inadmissible hearsay. However, the fact that complaints to the BSA have been made and upheld is not based on hearsay. I reject the defendant’s submission that the
evidence should be excluded as provocative and not probative. The evidence is relevant and admissible. It tends to prove and support the other evidence regarding Harnek’s role, conduct and its effect on members of the defendant. The evidence goes to the issue of whether the challenged decisions were made by the defendant on the basis of extraneous considerations.
[90] The defendant objects to Gurnek’s evidence in paragraphs 29, 30 and 31 of his affidavit in which he sets out the background and reasons for bringing the 2020 proceedings in order to prevent the defendant from selling the property it occupies. The defendant submits that this evidence is not relevant as the issues involved were litigated in 2020 and settled by consent orders. I consider the evidence is relevant to show the basis of the division between the plaintiffs and similarly minded members of the Sikh community compared to those controlling the defendant. The fact that the dispute was resolved and proceedings settled does not mean that the existence of the dispute cannot be relied on as evidence as to the existence of a division between the plaintiffs and the defendant that is said to show that the defendant was motivated to make the challenged decisions on the basis of extraneous considerations. I accordingly find this evidence to be admissible.
[91] The defendant objects to Gurnek’s use of the word “rant” in paragraph 34 of his affidavit on the grounds that it is opinion evidence and provocative. In this paragraph Gurnek describes Harnek’s behaviour at the Gurudwara on Sunday 18 October 2020 when he interrupted the worship underway by using the audio system to state that Gurnek and Daljit were no longer welcome at the Gurduwara, and proceeded to place the trespass notices in front of them. Gurnek states that:
Harnek continued to rant to the people present that he was going to trespass every member who had signed the petition objecting to the property sale and that he had the power to remove anyone that he wished from the Gurdwara.
The use of the word “rant” describes the manner in which Gurnek says that Harnek was behaving when addressing the congregation. I reject the defendant’s objection to the use of this word. Gurnek’s evidence regarding what Harnek said to the congregation and his manner of addressing them is highly relevant to the issue of
whether the challenged decisions of the defendant to issue the trespass notices were based on extraneous and irrelevant considerations.
[92] The defendant also objects to the admission of the evidence contained in paragraphs 41, 42, and 43 of Gurnek’s affidavit in which he expresses his hopes for the future of the defendant organisation and for justice to be done. The defendant submits that the evidence is not relevant and provocative. I reject this objection. The evidence is relevant as background and goes to Gurnek’s general credibility by explaining his reasons and motivation for bringing the proceeding. I accordingly find this evidence to be admissible.
Conclusion
[93] The defendant’s numerous and detailed challenges to the plaintiffs’ evidence demonstrate the nature of the dispute between the parties which is characterised by dogged opposition, and in many instances meritless challenges to the admission of evidence on the part of the defendant. As a result the Court has had to consider and determine in the order of 88 separate objections to the plaintiffs’ evidence.
[94] The defendant has nevertheless succeeded in a limited number of its objections. I find those parts of the plaintiffs’ affidavits are inadmissible as evidence in the proceeding, referred to in my judgment in paragraphs:
(a)[48], [50], [55], [58][66], [68][71] and [73] regarding Daljit’s affidavit; and
(b) [81][86] regarding Gurnek’s affidavit.
[95] It is nevertheless important to note that issues of admissibility may be revisited at the hearing in light of further evidence given . Should that occur it will be a matter for determination by the trial Judge.
[96] The defendant has been only modestly successful in its objections to the plaintiffs’ evidence, while the plaintiffs have by comparison achieved substantial success in resisting the defendant’s objections. In these circumstances I consider the
plaintiffs are entitled to an award of costs as the party who has achieved the greater degree of success and has been put to the expense of defending the defendant’s application which in many instances are based on meritless and repetitious contentions.
[97]I accordingly direct the parties to file memoranda as to costs as follows:
(a)The plaintiffs are to file and serve their costs memorandum within 10 working days from delivery of this judgment.
(b)The defendant is to file and serve its costs memorandum in reply within seven working days from service of the plaintiffs’ memorandum.
(c)The memoranda are not to exceed three pages in length other than annexed schedules.
[98] Following the Registrar’s receipt of the costs memoranda, I shall determine the costs awarded to the plaintiffs on the papers.
Paul Davison J
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