Singh v Auckland Co-Operative Taxi Society Limited
[2015] NZHC 3291
•16 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-003007 [2015] NZHC 3291
UNDER the Industrial and Provident Societies Act
1908
AND
the Protected Disclosures Act 2000
IN THE MATTER OF
Auckland Co-operative Taxi Society
LimitedBETWEEN
RANBIR SINGH Plaintiff
AND
AUCKLAND CO-OPERATIVE TAXI SOCIETY LIMITED
First Defendant
IAN GRAHAM,
YAKUB (aka JACOB) MOHAMMED PATEL,
KANWAJIT BHULLAR and
KRISHNA DEO LAL Second Defendants
Hearing: 16 December 2015 Counsel:
R S Pidgeon for the Plaintiff
M S S Khan and D A M Mahon for the DefendantsJudgment:
16 December 2015
Reasons:
17 December 2015
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 17 December 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
SINGH v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2015] NZHC 3291 [16 December 2015]
Introduction
[1] Mr Singh applies on a without notice basis for orders staying a hearing convened for 17 December 2015.
[2] The application was served on counsel for the first defendant (ACT) on a “Pickwick” basis.1 A telephone conference was convened on 16 December 2015 which counsel for Mr Singh and counsel for ACT attended.
[3] I declined the application. My reasons for doing so now follow.
Background
[4] Mr Singh is a taxi driver and a member of ACT. Until recently he was also a board member of ACT.
[5] ACT is a Society registered under the Industrial and Provident Societies Act
1908. It currently has approximately 700 members.
[6] Under r 11(d) of the ACT Rules, the ACT Board retains the power to strike a member off the register of members on being satisfied that “it is not in the best interests of the Society that a licensee shall remain a member”.
[7] The ACT Board has made a proposal to remove Mr Singh from ACT
pursuant to this rule. A hearing to consider that proposal has been convened for
17 December 2015.
[8] Notice of such a hearing was given to Mr Singh on 16 September 2015. The notice of the hearing alleges that Mr Singh’s actions are unbecoming of a member of the Society. The Board points to various instances of disclosure of information,
complaints from members, and the threat of litigation, in support of its proposal.
1 The second defendants comprise some, but not all, of the other members of the ACT Board. It is not clear whether they were separately served or are separately represented. They were not represented at the telephone conference.
[9] The Board has appointed Mr Tim Reddish and Mr Kevin Braid as adjudicators independent of the Board to preside at the hearing and to ultimately decide whether Mr Singh should be struck off the register of members. Both men are involved with the taxi industry. The Board will ratify any decision made by the two adjudicators.
[10] The original hearing was scheduled for 2 December 2015 but it was adjourned to 17 December 2015 at the request of Mr Singh’s then counsel (Mr Sharma) who had only recently been instructed and required further time to prepare for the hearing. Mr Sharma no longer represents Mr Singh. Mr Pidgeon has only recently been engaged.
[11] Mr Singh contends that he is a “whistleblower”. He has disclosed information to the Police, Serious Fraud Office, Human Rights Commission, Auditor General and others in relation to concerns he has about overcharging of fares and the allocation of jobs in relation to key account contracts with District Health Boards and the Ministry of Education. He says these key account contracts are channelled through Taxicharge New Zealand Ltd (Taxicharge) and are preferentially allocated to some drivers. Wellington Combined Taxis Ltd and ACT are shareholders in Taxicharge.
[12] Mr Singh contends that the disclosures he has made are protected disclosures as defined under the Protected Disclosures Act 2000. Section 18 of the Protected Disclosures Act affords protection from civil and criminal proceedings and disciplinary hearings for those who make protected disclosures. Mr Singh says that the meeting convened for 17 December 2015 is a disciplinary hearing within the meaning of s 18.
[13] Mr Singh also alleges victimisation within the meaning of s 66 of the Human Rights Act 1993. That section provides that it shall be unlawful for any person to treat or to threaten to treat any person less favourably on the grounds that they have made, or intend to make, a disclosure under the Protected Disclosures Act. The claim that the disclosures are “protected disclosures” is strenuously opposed by ACT.
[14] Mr Singh alleges that the two adjudicators are biased. In particular, it is alleged that Mr Reddish is a director of Taxicharge and has an interest in the profitable operation of maintaining the key contracts. It is also alleged that Mr Reddish and Mr Braid have a personal connection to the first-named second defendant, Mr Ian Graham, who is the secretary of the ACT Board and a longstanding member of the organisation.
[15] On 14 December 2015, Mr Singh sent a notice to the Board with the signatures of 10 per cent of the financial members of ACT convening a special general meeting.
[16] The interim relief sought by Mr Singh seeks a stay of the 17 December 2015 meeting until further order of the Court or the convening of the special general meeting of shareholders.
Application
[17] The application seeks interim relief under s 8 of the Judicature Amendment
Act 1972 in the following terms:
1.The plaintiff is to be forthwith reinstated as a board member with full powers and pending further order of the court.
2.The disciplinary hearing convened by the defendants and which is set for 17 December 2015 at Rydges Hotel is stayed pending further order of the court and no further action is to be taken by the defendants against the plaintiff in relation to the existing complaints made against the plaintiff until either:
a. further order of the court; or
b.the convening of the special general meeting of shareholders of the first defendant as set out in exhibit 26 of the affidavit of Ranbir Singh.
3. The orders of the court are conditional on the undertaking given by
Ranbir Singh being complied with.
[18] The order sought in paragraph 1 is no longer sought.
[19] There are no particularised grounds set out in the application. However, the supporting memorandum of counsel alleges bias on the part of the independent adjudicators, breach of natural justice, and breaches of the Protected Disclosure Act and Human Rights Act.
[20] The application is supported by affidavits of Mr Singh and Mr Harpreet and various documentary exhibits contained in four spiral-bound volumes. An undertaking by Mr Singh that he would not make any disclosures or complaints on the condition that the requested special general meeting is scheduled and held was also filed. There was no undertaking of damages originally filed although an undertaking was filed subsequent to the telephone conference.
[21] The statement of claim challenges the decision to convene the meeting on
17 December 2015. It is alleged to be invalid for the following reasons:
(a) It is unreasonable.
(b) It failed to adequately consider whether an investigation of the allegations raised by the plaintiff was in the best interest of the body of shareholders.
(c) It took into account irrelevant matters (such as the ongoing profit of the status quo).
(d) It is a breach of natural justice.
(e) The appointed judges, Messrs Reddish and Braid, are contaminated by apparent bias and any decision reached would be invalid or a nullity as a consequence of it.
(f) The decision to suspend the plaintiff as a director was ultra vires insofar as nowhere in the Rules or Operating Rules is a suspension permitted and furthermore the fact that he was suspended is an indication to the “judges” Messrs Reddish and Beard [sic] of the majority of the Board’s position on the Rule 11d assessment and accordingly is procedurally unfair insofar as it indicates a degree of predetermination on the party [sic] of the management of the first defendant, which has the danger or prospect of contaminating the decision-making of Messrs Reddish and Braid.
[22] The substantive relief sought includes: a declaration that the hearing is invalid; an order quashing the appointment of Messrs Reddish and Braid; an order postponing the holding of the hearing until either the conclusion of the investigations or the holding of a special general meeting; orders that the decision suspending the
plaintiff as director were invalid and void ab initio; and declarations that the disclosures fall within the Protected Disclosures Act.
Relevant legal principles
[23] The application is made under s 8, Judicature Amendment Act 1972. That section allows a Court to make an interim order if “it is necessary to do so for the purpose of preserving the position of the applicant”.
[24] If the Court is satisfied that interim relief is necessary to preserve the position of the applicant, then the Court has a wide discretion to consider all the circumstances of the case in deciding whether to grant relief. Those factors include the apparent strength or weaknesses of a claim, and the repercussions, both public and private of granting interim relief.2
Analysis
[25] I do not consider interim relief staying the hearing to be necessary to preserve the position of Mr Singh in this case.
[26] Mr Singh’s position is not prejudiced by the hearing going ahead. His substantive challenge to the decision to convene such a meeting will not be rendered nugatory if the hearing is not stayed. The hearing has already been adjourned once to allow him time to instruct counsel and to prepare his submissions. Although Mr Pidgeon has only recently been instructed, the volume of material before the Court suggests that Mr Singh is well prepared and ready to proceed. Mr Singh has an opportunity to persuade the adjudicators that he should remain a member. In the event that he persuades them of that course, the allegations of bias and the challenges to the decision to convene the meeting will be of no real consequence.
[27] An order staying the hearing pending the special general meeting is not necessary to preserve Mr Singh’s position either. The notice for that meeting lists matters relating to the alleged overcharging and the suspension of Mr Singh from the
board. While the notice mentions the dispute between Mr Singh and the Board, r
11(d) of the Rules vests the power in the Board to determine questions of membership, not the special general meeting. The special general meeting will not resolve the matters the subject of the scheduled hearing.
[28] The key decision at issue from Mr Singh’s point of view is not the decision to convene the meeting, but a decision expelling him from ACT. Mr Singh may well have grounds to seek an order prohibiting any further action from being taken consequent on a decision to terminate membership. The grounds for seeking relief would be essentially the same grounds advanced in support of this application. The alleged bias of the adjudicators, breaches of the Human Rights Act and the personal consequences for Mr Singh of losing membership would be brought into sharper focus if, and when, a decision that he be struck off the register is made.
[29] A decision of that nature is yet to be made. There is insufficient evidence in my view to support a claim that the adjudicators’ decision has been effectively pre- determined. I consider the application for interim relief to be premature in that respect.
[30] Delay in bringing the application is a further factor weighing against the grant of relief in this case. Notice of the hearing was sent on 16 September 2015. It was adjourned from an original date of 2 December 2015 at the request of Mr Singh’s counsel who was then only recently instructed. Since then, Mr Singh has changed counsel and has only recently engaged Mr Pidgeon. Mr Singh has been on notice about the meeting for some time and he cannot use his own delay in instructing counsel to secure an order effectively delaying the hearing further.
[31] In a memorandum filed after the telephone conference, Mr Singh’s counsel stated that given the extant challenge to the appointment of the adjudicators on the grounds of bias, it would not be appropriate to consent to appear before those adjudicators. He said that there would be a risk of waiver of the bias grounds if he did so and referred me to the decision of Sisson v Canterbury District Law Society.3
In that case, the applicant for judicial review had waived her right to rely on bias as a
ground of judicial review. The applicant had been asked at the outset of the disciplinary hearing whether she had any objection to the Tribunal members. With full knowledge of all material facts, she did not raise any objection at that time.
[32] I do not consider waiver to be in issue in this case. Mr Singh has made it crystal clear that he alleges bias against the adjudicators. He is free to reiterate that position if and when he attends the hearing. The failure to grant interim relief does not prevent him from pursuing his challenge to the decision to convene a hearing on the grounds of bias should he choose to do so.
Result
[33] The without notice application for interim relief under s 8, Judicature Amendment Act 1972 is dismissed.
Edwards J
Counsel: R S Pidgeon, Auckland
Solicitors: Pidgeon Law, Auckland
Fortune Manning, Auckland
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