Nagra v Sri Guru Singh Sabha Auckland Incorporated

[2024] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1178

[2024] NZHC 856

IN THE MATTER

of the Judicial Review Procedure Act 2016 and the Declartory Judgements Act 1908

BETWEEN

DALJIT SINGH NAGRA and GURNEK SINGH NIJJAR

Plaintiffs/Respondents

AND

SRI GURU SINGH SABHA AUCKLAND INCORPORATED (1229571)

Defendant/Applicant

Hearing:	4 March 2024
Appearances:	S S Khan & M G Orange for Plaintiffs P Amaranathan for Defendant
Judgment:	19 April 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 19/04/2024 at 9 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:

Fortune Manning, Auckland Rice Craig, Auckland

NAGRA v SRI GURU SINGH SABHA AUCKLAND INCORPORATED (1229571) [2024] NZHC 856 [19

April 2024]

Introduction

[1]    The defendant Sri Guru Singh Sabha Auckland Inc (the Sabha) is a Sikh religious organisation. It is structured as an incorporated society and is also a registered charity. Until 2023, the Sabha owned property in Papatoetoe that was used as a Sikh temple known as a Gurudwara. The plaintiffs, Daljit Singh Nagra and Gurnek Singh Nijjar are practising Sikhs previously involved as founding or early members of the Sabha.

[2]    Daljit Singh Nagra says that from 2014 the Sabha declined to provide subscription notices to enable him to renew his membership and refused to accept his tendered membership fees thereby unlawfully excluding him from membership of the Sabha. Daljit Singh Nagra and Gurnek Singh Nijjar say that many other members of the Sabha have had their membership ended in the same way.

[3]    On 18 October 2020, the Sabha issued both  Daljit  Singh  Nagra  and  Gurnek Singh Nijjar with trespass notices prohibiting them from worshipping in the Gurudwara.

[4]    Daljit Singh Nagra seeks judicial review of the decision of the Sabha to treat his membership as having ended.

[5]    Daljit Singh Nagra and Gurnek Singh Nijjar both seek judicial review of the decision of the Sabha to treat the membership of others as ended where those others were excluded by a similar process of declining to issue subscription notices.

[6]    Daljit Singh Nagra and Gurnek Singh Nijjar both seek judicial review of the decision of the Sabha to serve trespass notices on them.

[7]They seek relief by way of declarations that:

(a)The defendant has acted unlawfully by purporting to remove members of the Sabha for non-payment of subscriptions where no subscription notice was ever sent.

(b)Daljit Singh Nagra is and remains a member of the Sabha.

(c)Any other person whose membership the defendant has purported to terminate for non-payment of subscriptions where a subscription notice was not sent, is and remains a member of the Sabha.

(d)The decision to issue trespass notices against Gurnek Singh Nijjar and Daljit Singh Nagra was unlawful.

(e)The trespass notices have no effect.

[8]    The  Sabha  denies  that  it  unlawfully  revoked   the   membership   of   Daljit Singh Nagra or any others. It says that the decision to issue trespass notices is not amenable to judicial review as it involved private property rights and was not the exercise of any public function. The Sabha challenges the plaintiffs’ standing to bring judicial review proceedings. It says further that these proceedings have been unreasonably delayed and are an effort by the plaintiffs to shut down the freedom of religious expression of the current members of the Sabha.

Background

[9]    The Sabha was founded in 2002 when another Sikh society based in Otahuhu split into two factions. Dissatisfied members of the Otahuhu society left and established the Sabha. Gurnek Singh Nijjar was a founding member.

[10]   The Sabha is managed by the Sewadar Committee. Committee members appoint a convener, secretary, assistant secretary, and treasurer. Since 2008, the convener of the Sabha has been Harnek Singh. Harnek Singh is undeniably a controversial figure within the Sikh community. He is a commentator on Indian politics and the Sikh religion. He maintains a YouTube channel with almost half a million subscribers and a radio station. His opinions have clearly polarised the Sikh community.

[11]   The Sabha set up a Gurudwara out of leased premises at Papatoetoe, Auckland (the Property). In 2007, the Property came up for sale and was purchased by the Sabha.

[12]   Daljit Singh Nagra became a member of the Sabha in 2007 and together with Harnek Singh and three others contributed $50,000 each to purchase the Property. The purchase of the Property was achieved through the contributions and through a mortgage.

[13]    By 2009, the Sabha was experiencing financial hardship because rental payments from a tenant ceased. Daljit Singh Nagra asked for his loan of $50,000 to be repaid. The loan was repaid in November 2010.

[14]   In 2010, because of differences with Harnek Singh, Gurnek Singh Nijjar resigned his membership of the Sabha.

[15]Daljit Singh Nagra never resigned his membership.

[16]   An AGM was held on 6 October 2013. The minutes of the AGM record that Daljit Singh Nagra’s family had tarnished the Sabha’s image. This seems to have come about because of an employment dispute between Daljit Singh Nagra’s sister and the Sabha which resulted in a finding in favour of Daljit Singh Nagra’s sister. The membership resolved that the family would be banished from membership until they apologised. This was confirmed at the 2014 AGM.

[17]   In 2014, Daljit Singh Nagra did not receive a subscription notice following that year’s AGM. That was the first year that he had not received a subscription notice. Daljit Singh Nagra however presented a cheque to the treasurer, Gurpreet Singh, who was in charge of accepting membership fees on 19 October 2014. Later that day, Harnek Singh handed Daljit Singh Nagra’s cheque back to him stating that he wished to meet with Daljit Singh Nagra before membership fees would be accepted.

[18]   On 20 October 2014, Daljit Singh Nagra sent a letter to the secretary expressing concern that his membership fees had been rejected by Harnek Singh but stating that he was willing to meet with Harnek Singh to try and settle any issues. The letter refers to a right to seek judicial review due to being denied membership.

[19]   On 3 November 2014, Gurpreet Singh sent a letter in response which stated that the Sabha could not consider Daljit Singh Nagra’s letter as it was unsigned. Daljit Singh Nagra then signed his letter and sent it back to Gurpreet Singh. No response was received.

[20]   On 9 June 2015, Daljit Singh Nagra sent a further letter to Gurpreet Singh noting that he had not received any response to his previous letters and reiterated his willingness to attend the meeting that Harnek Singh had requested. Daljit Singh Nagra did not receive a response.

[21]   In 2018, Harnek Singh was purportedly ex-communicated by the Akal Takht, the supreme temple seat of Sikhs in Punjab, India. The Sabha says no concept of excommunication existed in Sikh scripture until the British introduced it and that the Akal Takt does not control Sikhism in New Zealand or anywhere. Daljit Singh Nagra and Gurnek Singh Nijjar say that the ex-communication evidences that the Sabha has moved away from its original ideals and that, while the Akal Takt does not directly control Sikhism in New Zealand, it is accorded a very large amount of respect in the Sikh community.

[22]    The legitimacy or effect of the ex-communication is not something that this Court can or should take a view on for the purposes of these proceedings. However, the statement purporting to excommunicate Harnek Singh has some relevance because of the instructions given to followers of Guru Nanek regarding religious, political and social connection with Harnek Singh.

[23]   The English translation of the Akal Takht statement excommunicating Harnek Singh reads:

A meeting of Five Singh Sahibaan was held on 14th June 2018 (Nanakshahi 32 Jeth Samat 550) at Office Secretariat, Sri Akal Takht Sahib today in which after long deliberations it was decided by Five Singh Sahibaan that Harnek Singh, son of Sohan Singh, was summoned three times to visit Sri Akal Takht Sahib to explain his speaking distorted Gurbani and Sikh history, but due to his ego he did not appear before Sri Akal Takht Sahib Ji. Therefore, after deliberation by the Five Singh Sahibaan, Harnek Singh is excommunicated from the Khalsa Panth. All followers of Guru Nanak and his teachings are instructed not to have any kind of religious, political, and social connection

with Harnek Singh. Legal action should be taken by the congregation to shut down his radio channel named Virsa.

[24]   Daljit Singh Nagra and Gurnek Singh Nijjar say that they have maintained regular worship at the Gurudwara and wish to continue to do so. They say that they view the Sabha as their community and one that is of great importance to them.

[25]   The Sabha says that Gurnek Singh Nijjar took no action in respect of his membership until this proceeding and that the plaintiffs are not really motivated by genuine concerns about membership or worshipping at the Gurudwara. The Sabha says that the motivation is most likely ideological differences, and this proceeding is an attempt to use the Court process to shut down the freedom of religious expression of the members of the Sabha. Essentially, the Sabha says the plaintiffs wish to regain membership, having left many years before, to in order to influence the theological direction of the Gurudwara.

[26]   In 2020, the Sabha resolved to sell the Property upon which the Gurudwara was situated. In August 2020, Daljit Singh Nagra and Gurnek Singh Nijjar issued proceedings seeking an order restraining the sale of the Property. Those proceedings were settled in September 2020 on terms by which the defendant provided certain undertakings regarding the Gurudwara. One of the terms agreed was that there would be no change to the Constitution of the organisation for a period of five years.

[27]   On 11 September 2020, Daljit Singh Nagra renewed attempts to pay his membership fees. He sent an email to the new secretary of the Sabha and the Sabha’s accountant asking for the Sabha’s bank account details so he could pay membership fees.

[28]   Following settlement of the earlier proceedings both Daljit Singh Nagra and Gurnek Singh Nijjar resumed attendance at the Gurudwara. Harnek Singh says that Daljit Singh Nagra had not attended any temple services for the seven years between 2013 and 2020. This is disputed by Daljit Singh Nagra who says that while his attendance decreased, he attended services four to five times a year between 2013 and 2020. Daljit Singh Nagra says his attendance decreased to prevent any further infighting and allow Harnek Singh to “run the Sabha as he wanted”.

[29]   On 18 October 2020, Daljit Singh Nagra and Gurnek Singh Nijjar were worshipping at the Gurudwara when they were served with trespass notices and told to leave.

[30]   In December 2020, Harnek Singh was the victim of an attempted murder. A group of Auckland Sikhs attacked him outside his home inflicting over 40 stab and cut wounds. That matter has been the subject of a criminal trial and a number of people have been convicted of attempted murder. There is no suggestion at all that the plaintiffs had anything to do with the attack on Harnek Singh.

[31]   On 27 December 2020, the plaintiffs entered the Gurudwara and were removed by police as being in breach of the Trespass notice.

[32]These Judicial review proceedings were commenced in May 2021.

[33]The Property subject to the Trespass notice was sold in October 2022.

The Constitution of the Sabha

[34]   When the Sabha was incorporated in 2002 it adopted the rules set out in its application for incorporation which have subsequently been amended in 2007, 2008 and 2011 (the Constitution). Clause 7 of the Constitution relates to membership of the Sabha. Under the Constitution membership of the Sabha is open to all New Zealand citizens and permanent residents and any person in New Zealand pursuant to a current valid visa issued by the New Zealand Government (male or female), who are 18 years or over, and are firm believers of Sikhism. Applications for membership must be made to the Sewadar Committee upon nomination by two existing members and the Sewadar Committee, at its sole discretion, can present the application to the AGM for a vote. Membership is then effective from the date of approval by the AGM and on the payment of the appropriate annual membership fee.

[35]   Clause 8 provides that an annual subscription shall be set by the resolution of the AGM and is payable within one calendar month of the subscription notice being posted to members. Any member failing to pay the annual subscription within two calendar months of the date the subscription notice was posted shall be considered as

unfinancial and shall have no membership rights until arrears are paid. If arrears are not paid within three calendar months of the date of the subscription notice being posted the membership shall be deemed to have been terminated and the member shall cease to hold themselves out as a member of the Sabha.

[36]   Resignation is provided for within the Constitution. Any member may resign from membership by giving the secretary notice in writing of the intention to resign. This is the process Gurnek Singh Nijjar followed in 2010.

[37]The Constitution also provides for the expulsion of members stating:

Expulsion-The Sewadar Committee may at any time by letter request any member to resign within a specified time being not less than 10 working days if that person ceases to be a New Zealand citizen, a permanent resident or the holder of a current valid visa issued by the New Zealand Government or acts in such manner as may bring discredit to the SABHA or its members or breach by him/her of the rules and/or regulations of the SABHA, or for serious misconduct in any meeting or during any ceremony.

Legal principles

[38]   Decisions made by an incorporated society which are sufficiently public in nature are subject to judicial review.1

[39]As summarised by Campbell J in Cullen v Pa’u:2

This Court’s supervisory judicial review jurisdiction is concerned with the exercise of “public powers”. The Court has jurisdiction to review “exercises of power which in substance are public or have important public consequences”.3 The Supreme Court has said that the question is whether there is a “substantial public interest component” to the exercise of power.4 Exercises of such public power are reviewable, whether the power derives from statute or otherwise,5 and whether the person or body exercising the power might be characterised as public or private in nature.6 The jurisdiction has limits, including that “the exercise of power must be one that is appropriate for review”.7

1      Judicial Review Procedure Act 2016, s 5.

2      Cullen v Pa’u [2023] NZHC 3782 at [41].

3      Royal Australian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11.

4      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [71]; and Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [108].

5      Ririnui v Landcorp Farming Ltd, above n 4, at [1].

6      Royal Australian College of Surgeons v Phipps, above n 3, at 11.

7      Ririnui v Landcorp Farming Ltd, above n 4, at [1].

[40]   In that context, decisions that are purely ecclesiastical are not appropriate for review.8

[41]   Much of the affidavit evidence concerned the theological differences between the plaintiffs and the defendant. This Court is not concerned with, and cannot resolve, such differences. But the Courts will intervene where an incorporated society is exercising civil or property rights or exercising a quasi-public function.

[42]   In Kahn v Ahmed, a decision at special general meeting of the Muslim Association of Hawke’s Bay Inc to transfer a community centre and mosque to an incorporated society was held to be judicially reviewable. Wild J said:9

[55]   Notwithstanding the traditional reluctance of the  courts to intervene  in the internal affairs of incorporated societies, this case differs from Hopper. Unlike the North Shore Aero Club Inc, the Association does exercise “a quasi- public function”. It owned and administered the Centre which is the focal point for the Muslim community in Hawke's Bay. Further, in Marshall v National Spiritual Assembly of the Bahá'is of New Zealand Inc [2003] 2 NZLR 203 at p213 Randerson J indicated that, although “wholly or mainly spiritual or religious issues were non-justiciable:

“ … the Courts have been prepared to intervene where civil, economic or proprietary rights are alleged to have been infringed.”

The issues

[43]   Affidavits filed by both the plaintiffs and defendant reveal that there is little dispute about the fact that subscription notices were not sent to Daljit Singh Nagra. It is also not significantly disputed that the Sabha failed to accept his subscription fees when he attempted to make payment.

[44]   Under the first cause of action, the plaintiffs seek a declaration in respect of Daljit Singh Nagra’s membership but also in respect of non-parties who have had membership ended for non-payment of subscriptions. The declaration sought is wide, namely that any person whose membership has been deemed to be terminated for non‑payment of subscriptions remains a member of the Sabha. The defendant says that there is no evidence of anyone’s membership having been ended simply by reason

8      Marshall v National Spiritual Assembly of the Bahá’is of New Zealand Inc [2003] 2 NZLR 205 (HC) at [40].

9      Khan v Ahmed [2008] NZAR 686 (HC).

of non‑payment of subscription fees and the declaration sought in relation to non‑parties is unworkable. The defendant says there is no way to distinguish those persons from others who formally resigned from membership, especially given the passage of time.

[45]   The plaintiffs’ second cause of action alleges that the decision to trespass Daljit Singh Nagra and Gurnek Singh Nijjar from the Gurudwara was unlawful. The plaintiffs say that the Sabha owns and operates the Gurudwara for the benefit of the New Zealand Sikh congregation and that, as a registered charity the Sabha is required to provide benefits to the public and any restrictions placed on public access to the Gurudwara must be reasonable and appropriate in the circumstances. The plaintiffs says that as both Daljit Singh Nagra and Gurnek Singh Nijjar are practising Sikhs and Daljit Singh Nagra is a member of the Sabha, the decision to trespass them from the Gurudwara was unlawful and infringed their rights under the New Zealand Bill of Rights Act 1990 (NZBORA).

[46]   The Sabha says that the decision to trespass  Daljit  Singh  Nagra  and  Gurnek Singh Nijjar was not of a decision of a “public character”. The defendant says that the Sabha is not carrying out any function of Government when religious services are held and that the freedom of religion, as protected NZBORA, does not in and of itself mean that religious organisations have a “public character”. It says that there was no contractual relationship between Daljit Singh Nagra or Gurnek Singh Nijjar and the Sabha because they were not members of the Sabha at the time. The Sabha says further that even if the Sabha’s trespass decision did have a “public character”, the decision was reasonable and therefore lawful.

[47]   Affidavit evidence filed by the Sabha indicates that police had recommended the trespass notices be issued. The Sabha says that it had genuine concerns about safety which were warranted, as demonstrated by the fact that Harnek Singh was a victim of a religiously motivated attempted murder only a couple of months later.

[48]   The defendant says that  the  Sabha  also  has  specific  concerns  about  Daljit Singh Nagra and Gurnek Singh Nijjar’s conduct. Daljit Singh Nagra and Gurnek Singh Nijjar breached the trespass notices and entered the Sabha with a group

of others only a few days after the attack on Harnek Singh. The evidence establishes that Daljit Singh Nagra and Gurnek Singh Nijjar were arrested and warned for that breach.

[49]   The defendant maintains that the motivation for the proceedings is the ideological difference between the parties and not any real desire to exercise religious freedom at this particular Gurudwara.

[50]   The defendant says that, even if there are grounds for relief, the delay has been too long, particularly regarding the membership issues. Prejudice has resulted from the delay.

[51]   In respect of the trespass notice, the defendant says that the premises have now been sold and the Property to which the trespass notice pertains is no longer owned occupied by the Sabha.

[52]The issues to be determined are:

(a)Do the plaintiffs have standing to bring either cause of action?

(b)If they do have standing, does that extend to membership practices involving non-parties?

(c)In respect of the first cause of action:

(i)Is the decision to treat Daljit Singh Nagra’s membership as ended amenable to judicial review?

(ii)If so, was Daljit Singh Nagra’s membership revoked in a way that was unlawful, unreasonable or procedurally unfair?

(iii)Are the wider membership practices involving non-parties subject to judicial review in these proceedings?

(iv)If so, have other memberships been revoked in a way that was illegal, unreasonable or procedurally unfair?

(d)In respect of the second cause of action:

(i)In deciding to issue the trespass notices was the Sabha exercising a judicially reviewable power?

(ii)If so, did the Sabha make its decision in a way that was unlawful, unreasonable, procedurally unfair?

(e)What is the effect of the delay?

(f)What is the effect of the sale of the Property that the trespass notice relates to?

Standing

[53]   It is well-established that the courts will take a liberal and generous approach to standing with the test being whether there is a sufficient interest in the matter to which the proceedings were laid.10

[54]   Daljit Singh Nagra was a financial member of the Sabha until 2014 and did not ever formally resign as required by the Constitution. The Sabha’s decision to treat his membership as ended is the very decision he seeks to have judicially reviewed. It would be an affront to natural justice to find that an incorporated society could expel members and then prevent any challenge to that decision on the basis that the challenger is no longer a member.

[55]   Daljit Singh Nagra does have standing to bring this judicial review proceeding so far as the decision affecting his membership is concerned.

10     Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 (CA); and Ye v Ministry of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [322].

[56]   Gurnek Singh Nijjer resigned as a member in 2010. He has no standing to judicially review the decision to treat his membership as ended and at the hearing he did not seek to do so.

[57]   I have not dealt with the issue of standing by these plaintiffs in respect of non‑parties for reasons which I will set out when I deal with that substantive cause of action.

[58]   Both plaintiffs have standing to apply to judicially review the trespass notices issued against them.

The first cause of action

Is the decision to treat Daljit Singh Nagra’s membership as ended amenable to judicial review?

[59]   The defendant is an incorporated society with a written constitution. In removing Daljit Singh Nagra as a member, the Sabha was purporting to exercise a statutory power of decision conferred under the Constitution. The decision to remove a member is a decision affecting the rights, powers and privileges of that member, and also the eligibility of the member to receive or continue to receive a benefit.11 This meets the definition of the exercise of a statutory power under s 5 of the Judicial Review Procedure Act 2016 (JRPA).

[60]   Further, the Sabha does exercise a quasi-public function. Its Constitution provides that is open to all people over 18 year old, who meet the citizen or visa requirements, and who profess to follow the Sikh faith. In Khan v Ahmed the decision to transfer a community centre and mosque to an incorporated society was judicially reviewable on the basis that proprietary rights were in issue.12 But it was also held that the Muslim Association of Hawkes Bay exercised a “quasi-public function” as it owned and administered a centre which was a focal point for the Muslim community in Hawkes Bay. Membership was open to all Muslims who met the membership criteria, and the Association was not to be treated as the plaintiffs’ private club.13

11     Judicial Review Procedure Act 2016, s 4.

12     Khan v Ahmed, above n 9, at [55].

13     At [9]–[10]

[61]   In the present case membership is also open to all who meet the membership criteria. The Sabha operates a Gurudwara which was intended to be a focal point of the Sikh community. Membership of the Sabha confers the right to influence not only the theological direction of the Sabha but also financial decisions and proprietary rights. The Sabha leases or owns property and makes decisions about that property. The proposed sale of the Property where the Gurudwara was situated was the catalyst for the earlier proceedings and the reason that Daljit Singh Nagra seeks to revive his dormant membership.

[62]   In purporting to revoke Daljit Singh Nagra’s membership, the Sabha was exercising a statutory power of decision with a public interest component. The decision is amenable to judicial review.

Was Daljit Singh Nagra’s membership revoked in a way that was unlawful, unreasonable, or procedurally unfair?

[63]   The evidence establishes that Daljit Singh Nagra did not resign his membership in the way contemplated by the Constitution of the Sabha. Instead, the defendant deemed Daljit Singh Nagra’s membership at an end following a failure and subsequently a refusal to issue a subscription notice. There was no power under the Constitution to end membership in that way.

[64]   The issues between Daljit Singh Nagra and the defendant came to a head in 2014 and the defendant deliberately failed to send a  notice  of  subscription  to  Daljit Singh Nagra. There is a factual dispute as to whether Daljit Singh Nagra was present at the AGM when his membership was discussed and as to whether he was otherwise advised of the decisions  to  exclude  him.  The  defendant  says  that  Daljit Singh Nagra was aware of the resolutions passed at the 2013 and 2014 AGMs, however, the subsequent correspondence between the parties in 2014 and 2015 suggests this is unlikely. There is no reference to the resolutions in the subsequent correspondence. Daljit Singh Nagra queried the failure to send subscription notices but neither party refers to the resolutions. The minutes of the AGM have been translated  but  the  wording  is   capable   of   different   interpretation   as   to   Daljit Singh Nagra’s presence when the resolutions were passed.

[65]   The way in which Daljit Singh Nagra’s membership was purported to be revoked was clearly outside the process provided for in the Constitution. According to the Constitution, the only way a member could be expelled was by letter of resignation provided following a request from the Sabha for such a letter. There was no process to address a situation where the member refused to comply with the request to provide a letter of resignation. In any event, the defendant did not make any attempt to invoke the process by requesting such a letter.

[66]   The defendant argued during oral submissions that a power to expel a member by refusing to send a subscription notice should be read into the Constitution because of the lack of any other process to expel a member who refused to resign. I do not agree. If there is a problem with the Constitution, there is a process by which the Constitution can be amended, and that process contains necessary democratic safeguards. The defendant’s contention that members should simply be able to be expelled in a way not contemplated by the Constitution cannot be sustained. There is force in the plaintiffs’ position that the defendant sought to remove those who did not share the ideology of the chairman, Harnek Singh, and did so in a way that breached the Constitution.

[67]   The removal of Daljit Singh Nagra as a member of the Sabha was procedurally unfair and ultra vires the Constitution.

Are the wider membership practices involving non-parties subject to judicial review in these proceedings?

[68]   The plaintiffs seek a declaration in respect of membership decisions made in respect of non-parties.

[69]   The evidence about the treatment of these non-parties is sparce. The individuals who were purportedly excluded are not named and have not provided any evidence. There is an affidavit from the treasurer saying that there were many instances where subscription notices were not sent. However, there is no evidence as to whether the members who did not receive subscription notices sought to retain their membership, and there is no evidence as to why the subscription notices were not sent in each case.

[70]    It is impossible for the Court to grant any relief in respect of non-parties or make any statement about the treatment of them. For this reason, I make no finding as to standing. Even if the plaintiffs do have standing to challenge the decisions made in respect of non-parties, there is no prospect of success on the current state of the evidence.

The second cause of action

In deciding to issue trespass notices did the Sabha exercise a judicially reviewable power?

[71]   The trespass notices were issued in respect of the Gurudwara which was situated in Papatoetoe, Auckland. Those premises have been sold and the trespass notices have no current effect. The plaintiffs seek judicial review of that decision to issue the trespass notices, however, any decision of the Court would have no practical effect.

[72]In Te Whakakitenga o Waikato Inc v Martin, it was held:14

… the Court will not make orders that have no utility. The Court’s time is precious, and it is not the function of Courts to provide abstract opinions.

…

Relief may be inappropriate where the applicant has “achieved the substantial result sought”, where it would serve no useful purpose, or where the passage of time means it could not have any practical effect.

(footnotes omitted)

[73]   In respect of the trespass notices, the plaintiffs effectively seek a declaration on the basis that it would be in some way binding for the issue of any future trespass notices. Any such declaration about the trespass notices issued in 2020 would not have that effect. There is no utility in this Court considering judicial review of trespass notices which are not currently in force.

14     Te Whakakitenga o Waikato v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].

What effect does the delay in proceedings have upon these causes of action?

[74]   The way in which the defendant purported to end Daljit Singh Nagra’s membership of the Sabha was procedurally unfair and ultra vires. The application for judicial review is, however, long delayed.

[75]   In Middeldorp v Avondale Jockey Club Inc, it was said that delay in and of itself is unlikely to be a good reason to decline to make a declaration in the absence of any prejudice occasioned by delay.15 In that case, though, the delay was a matter of months. In the present case, the plaintiff Daljit Singh Nagra was clearly aware of the potential  for  a  judicial  review  of  decisions  relating   to   membership.   In  his   20 October 2014 letter to the secretary of the Sabha he wrote “I am happy to have a meeting and advise that I will be recording the proceedings of that meeting as I would like to retain that for any judicial review that I may seek in the future.”16

[76]   Despite this, no action was taken until 2020 when the first judicial review proceedings were commenced. It is inconceivable that between 2014 and 2020, Daljit Singh Nagra was not aware that his membership was purported to be ended. The timing of the application for this judicial review seems clearly related to the earlier proceedings and the proposed sale of the Property.

[77]   Daljit Singh Nagra says that he continued to regard himself as a member of the Sabha and worshipped at the Gurudwara between 2014 and 2020. The evidence establishes that, at best, the plaintiffs had some sporadic attendance at the Gurudwara after 2014. They certainly worshipped at another Gurudwara and important family events such as weddings were held elsewhere. This is no doubt a result of the direction in which Harnek Singh has taken the Sabha, a source of sadness to the plaintiffs, given their early involvement in the organisation. But the reality is that the plaintiffs have been estranged from the Sabha and its Gurudwara since 2010 in  the  case  of  Gurnek Singh Nijjer and since 2014 in the case of Daljit Singh Nagra.

15     Middledorp v Avondale Jockey Club Inc [2020] NZCA 13 at [41] and [45] citing Ririnui v Landcorp Farming Ltd, above n 4.

16     Affidavit of Daljit Singh Nagra in Support of the Application of Judicial Review, affirmed 16 March 2022, exhibit DS09.

[78]   Daljit Singh Nagra’s estrangement from the Sabha after 2018 is also consistent with the plaintiffs’ adherence to the instruction in the Akal Tahkt ex‑communication notice that there should be no religious, political or social connection with Harnek Singh — who is heavily involved in the management of the Sabha.

[79]   I do not accept the contention that Daljit Singh Nagra was unaware of the purported termination of his membership until 2020. I find that he was aware of the decision of the Sabha to exclude him as a member in 2014. He made a further attempt to assert his right to membership in 2015 but then took no action to review the decision about his membership until these proceedings were filed in 2021.

[80]    Relief has been refused on the grounds of delay including circumstances where an appellant unreasonably delayed bring the proceedings,17 or where it would be impractical to grant the relief sought.18

[81]   Reinstatement of membership would bring Daljit Singh Nagra into religious and social contact with Harnek Singh and would inevitably create significant conflict within the organisation. Daljit Singh Nagra makes it plain in his affidavits that he considers that Harnek Singh has unlawfully taken control of the Sabha and he wishes to challenge that control. As a member he had every right to do so but the time to assert his membership and make that challenge was in 2014.

[82]   The plaintiffs seek a declaration that Daljit Singh Nagra remains a member of the Sabha. Although the way in which Daljit Singh Nagra was removed as a member was ultra vires, granting relief by way of reinstatement of his membership 10 years after the issues arose between the parties is unworkable. The organisation has moved on. It has different premises, a different membership and there is evidence of significant differences in ideology between Daljit Singh Nagra and the current membership. Daljit Singh Nagra has no financial or proprietary interest to protect. He was repaid for his financial investment in 2010.

[83]The delay is fatal to Daljit Singh Nagra’s application for that form of relief.

17    Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 137.

18     Barrett v Te Runanga O Ngāti Pū Inc [2002] NZAR 296 at [30]–[33].

Result

[84]I make the following declaration:

(a)The defendant’s decision to remove Daljit Singh Nagra as a member was procedurally unfair and ultra vires.

[85]   No further relief is granted in respect of the first cause of action due to the delay in bringing the judicial review proceedings.

[86]   The issue of the trespass notices is moot due to the sale of the Property. No finding is required in respect of the second cause of action.

Costs

[87]   The plaintiffs have succeeded in obtaining one form of relief, namely, the declaration. However, the defendant has succeeded in resisting the further relief sought.

[88]   Neither party has clearly succeeded but each has had some measure of success. The  defendant  acted  unlawfully   in   expelling   Daljit   Singh   Nagra.   But   Daljit Singh Nagra delayed seeking review of the decision for 10 years.

[89]Costs are to lie where they fall.

Wilkinson-Smith J