The Samoan Assemblies of God in New Zealand (Incorporated) v Morisa

[2023] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1349

[2023] NZHC 3049

UNDER

The Declaratory Judgments Act 1908 and the Inherent Jurisdiction of the Court

BETWEEN

THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INCORPORATED)

Plaintiff

AND

VENI MORISA

Defendant

Hearing:

12 October 2023

Counsel:

S J Mount KC and A Longdill for Plaintiff J Barrow for Defendant

O Woodroffe for Applicants

Judgment:

31 October 2023

JUDGMENT OF MUIR J

[Re: Representation issues]

This judgment was delivered by me on 31 October 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Woodroffe Lawyers, Auckland

Timaloa Law, Manukau

THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INCORPORATED) v MORISA [2023] NZHC

3049 [31 October 2023]

Introduction

[1]    The plaintiff (known to the parties as “the Fellowship”) is an incorporated society riven by dissent, to the extent that even a mediation before one of New Zealand’s most experienced practitioners has been unable to resolve its members’ differences.

[2]    The genesis of the dispute lies  in  the  appointment  of  the  defendant,  Pastor Veni Morisa, as the plaintiff’s Treasurer (and member of its Executive Council) at the annual meeting of the plaintiff’s General Council on 16 April 2022. Some members of the Fellowship say that because Mr Morisa was apparently convicted of a crime of dishonesty earlier in his life,1 he is disqualified from office. Others say that that is not the case and have obtained an opinion from leading counsel to that effect. From these seemingly small beginnings, litigation has proliferated, including defamation proceedings brought by Ms Woodroffe, who represents those opposing Pastor Morisa’s appointment.

[3]    This decision does not purport to resolve any of the underlying differences between the parties. It is of very limited compass. It relates exclusively to the issue of whether this Court should, in its inherent jurisdiction, set aside a notice of change of  solicitor  and  discontinuance  filed  in  respect   of  the  present   proceeding   on 2 February 2023.

Background

[4]    The statement of claim in this proceeding was filed on 9 August 2022. It identified the incorporated society as plaintiff and Pastor Morisa as defendant. The pleadings seek a declaration that the defendant’s appointment as Treasurer of the plaintiff is void and a further declaration that he is not eligible to hold the position of Pastor, Executive Council member or Treasurer.

[5]    The proceeding was prepared by Ms Woodroffe. She continues to maintain that she is the plaintiff’s instructed counsel — thus, the somewhat unedifying spectacle

1      The exact date is not stated but is said to be approximately 35 years ago.

of two opposing counsel — Ms Woodroffe and Mr Mount KC2 — both nominally appearing for the plaintiff in the context of the applications argued before me.

[6]    Ms Woodroffe says that she received authority to commence the proceeding from the General Superintendent of the plaintiff, himself a member of the plaintiff’s Executive Council.

[7]    The office of General Superintendent is recognised in the constitution of the plaintiff. Clause 10(1)(i) provides that the General Superintendent is “[t]o represent and generally oversee all the work and interests of the Fellowship in New Zealand and overseas.” Clause 10(1)(iv), in turn, identifies one of the General Superintendent’s duties as being “[t]o direct the work of the General Council office and act as chief executive officer of the Fellowship in all legal matters and to sign on its behalf.”

[8]    Mr Mount does not criticise Ms Woodroffe for commencing the proceeding, acknowledging either initial instruction from the General Superintendent or at least a good faith misunderstanding of that instruction. However, he says matters have moved on substantially from that point to the extent that both the Executive and General Councils of the plaintiff have overridden any authorisation by the General Superintendent, terminated Ms Woodroffe’s instruction and in the case of the Executive Council, has given a direction to discontinue the proceeding. He notes that even the General Superintendent now supports discontinuance of the proceeding.

[9]Specifically, Mr Mount refers to the following:

(a)At no stage did the Executive Council pass a resolution giving approval for the proceeding to be filed. On receipt of the proceeding and after discussion between Executive Council members, it became apparent that a minority (led by the former Treasurer, Pastor Taula Young, and including the Deputy Superintendent, Pastor Maoiautele Na’amanu) supported the application for declarations but that the majority did not. Various informal meetings confirmed that position.

2      Appearing with Ms Longdill.

(b)On 13 October 2022, the Executive Council met, without invitations to Pastors Na’amanu and Young, and passed resolutions seeking to terminate the services of Ms Woodroffe.

(c)On 17 October 2022, Timaloa Law, acting on the majority of the Executive Council’s instruction, wrote to Ms Woodroffe advising that new solicitors and counsel had been instructed and seeking her confirmation that she would no longer continue to act.

(d)Ms Woodroffe declined to accede to that request and, on 31 October 2022, filed a memorandum with the Court seeking formal proof against Pastor Morisa in the absence of a statement of defence from him.

(e)On 4 November 2022, the High Court directed that the proceeding be set down for formal proof. A hearing date in February 2023 was subsequently allocated.

(f)On 3 December 2022, the Executive Council convened in response to a notice of meeting issued to all members. Eight of the twelve members attended, satisfying relevant quorum requirements. Resolutions were passed unanimously by  those  present,  confirming  instruction  of  Ms Timaloa as solicitor in respect of  the  present  proceeding  and  Mr Mount (with Ms Kelly and Ms Longdill) as counsel. The Executive Council further resolved that Ms Timaloa be instructed to immediately file a notice of change of representation and address for service in respect of the proceeding and a notice of discontinuance. All motions are recorded in the minutes as carrying a stated majority of “8/12”. This was in error. Only eight attended, with opposition of the other four members simply assumed.3

(g)Subsequent to the meeting, the resolutions were confirmed in a document signed by the eight persons supporting them, each of whom

3      Such assumption being apparently based on previous discussions indicating opposition from the four persons concerned.

was identified by reference to position or relevant presbytery. An original iteration of this document is said in evidence to have incorrectly identified the date of the resolutions. A subsequent corrected version was annexed in evidence.

(h)On 27 January 2023, the Executive Council reconvened (on notice to all members) and passed the same resolutions again, with the relevant minutes correctly recording attendance by only eight members and their unanimity. The purpose of this meeting was to address any procedural irregularity arising out of the former minutes. The reconvened meeting is said to have been scheduled out of an “abundance of caution”.

(i)On 2 February 2023, Timaloa Law filed a notice of change of representation and a notice of discontinuance of the proceeding.

[10]   I record, for completeness, that on 22 November 2022, a proceeding was filed under CIV-2022-404-2225 (the 2225 proceeding) by Pastors Na’amanu and Young against Pastor Morisa and others seeking, inter alia, a declaration that Pastor Morisa’s appointment as Treasurer is null and void, that he be removed from his position as a pastor and that he be declared ineligible to continue to pursue the role of Treasurer.

[11]   On 8 December 2022, Harvey J adjourned the application for interim relief in respect of the 2225 proceeding and directed that the Fellowship be added as a defendant.4 The Judge further directed that the parties engage in mediation,5 which subsequently occurred before the Hon Rodney Hansen KC over two days. This was, as already indicated, unsuccessful.

[12]   It is apparent that the same issue sought to be ventilated in the present proceeding — the validity of Pastor Morisa’s appointment as Treasurer — is also engaged in the 2225 proceeding.

4      Na’amanu v Morisa [2022] NZHC 3291 at [41]–[42].

5 At [43].

[13]   For further completeness, I record that, on 12 August 2023, following the unsuccessful mediation, the plaintiff’s General Council convened and confirmed by resolution (204 votes in favour, four votes against) that Ms Timaloa, together with counsel Mr Mount and Ms Longdill, “act on behalf of the Fellowship”. At the same General Council meeting, Pastors Young, Na’amanu, Taloaina and Auvele, were removed from the Executive Council for various identified reasons. The vote in this respect was 197 in favour and nine against, with two votes “discarded”.

The applications before the Court

[14]   In response to the  notice  of  change  of  solicitor  and  discontinuance,  on  22 February 2023, Ms Woodroffe filed a document entitled “Notice of Opposition to the Notice of Discontinuance … and an Application to Decline a Notice of Change of Representation and Address for Service of the Plaintiff”. Although the document included the word “Application” and a filing fee was charged, it was not a compliant interlocutory application in that it did not specify the relief sought or the grounds on which it was being made. It would thus not have been possible for a party to file a Rules compliant notice of opposition to this purported document.

[15]   Nevertheless, in its terms the “Application” sought to rely “on the inherent jurisdiction of the Court to give directions” and Mr Mount accepts that this Court retains such a jurisdiction to set aside a notice of change of solicitor and/or discontinuance in an appropriate case. With his agreement, I intend to deal with the matter before me as if an application had been made in these terms. That will allow me to engage with the substance of what is being argued.

A point seldom considered

[16]   There is a paucity of authority addressing the circumstances in which the Court might invoke the inherent jurisdiction referred to. Mr Mount says that his researches have uncovered one case only in which the matter appears to have been considered: Butterworth v Clapham.6 This case is more than two hundred years old. No report

6      Butterworth v Clapham (1820) 1 Jac & W 673 (Ch).

can  be  found.    However, it is referred to by way of note in the decision of

Mole v Smith.7 The note records:8

… two counsel appeared upon a petition, for the same parties, one instructed to consent, and the other instructed by a different solicitor to oppose it, except on certain terms. The Master of the Roles directed the petition to stand over, and the authorities under which the solicitors acted to be verified by affidavit; and an affidavit was afterwards made by the parties, stating their consent to the petition and that they had authorised the first solicitor to act for them, upon which the order was made.

[17]   The focus of the enquiry in Butterworth was on who was in fact currently instructed for the relevant party. The focus of the Court’s enquiry in this case is different given that the matter in issue is the validity of the notices filed on 2 February 2023 by Timaloa Law. If Timaloa Law was validly instructed to file those notices at that time, then I accept Mr Mount’s submission that they are effective. Mr Mount further submits that even if the Fellowship subsequently changed its mind (which has not occurred), it would not be a basis to set aside the notices. I tend to agree, albeit that is not an issue requiring my decision.

Ms Woodroffe’s argument

[18]   Ms Woodroffe’s written submissions traverse in considerable detail the events which took place prior to the meeting of the Executive Council on 3 December 2022. There is an element of defensiveness about this aspect of the submissions — attempting as they do to justify her decision to not withdraw as counsel for the plaintiff when requested to do so in September and October 2022.

[19]   I am not asked to express my view about what happened in this period. I simply note that Ms Woodroffe’s impassioned plea that the notice of change of solicitor and discontinuance should be set aside despite separate proceedings in which the same issues are engaged and in respect of which her role cannot be impeached, appears to reflect this defensiveness. These issues are, however, largely irrelevant to the central issue I must decide.

7      Mole v Smith (1820) 1 Jac & W 665 (Ch).

8      At 673.

[20]   I see that issue as being to whether there is any proper basis to impeach the apparent resolutions of the Executive Council in  both  December  2022  and  January 2023 confirming appointment of Timaloa Law, Mr Mount and junior counsel in respect of the present proceeding and directing that a discontinuance be filed. In the course of oral argument, I requested that Ms Woodroffe focus particularly on that issue, mindful also of the General Council’s subsequent resolution.

[21]Ms Woodroffe’s arguments in this respect can be summarised as follows:

(a)The Executive Council acted under a form of duress in that it was presented with resolutions likely crafted by lawyers and in English and its collective will was overborne by those promoting them.

(b)The proceeding was commenced with the authority of the General Superintendent whose agency is recognised in the constitution and it was not open for the General Council to pass the resolutions it did.

(c)The resolutions passed at both meetings of the Executive Council were invalid because, in the notices convening the meetings, the proposed resolutions were not expressly identified.

(d)The resolutions themselves are unclear. It is improper that other resolutions were passed at both meetings but not identified in annexures to the discontinuance, and that the relevant minutes do not record that the motions that representation be changed and that the proceeding be discontinued were “moved and passed by the same people”.

[22]   Finally, Ms Woodroffe emphasises that it would be inappropriate to lose sight of the underlying issue, being the propriety of Pastor Morisa’s appointment. She submits that the manner of that appointment significantly offends a portion of the congregation who are rightly concerned about the elevation to a position of financial responsibility of someone with a purported history of dishonesty. She forcefully submits that this Court should intervene on behalf of those who take objection to this process.

Discussion

[23]   There is no evidential basis before me to conclude that any one or more of those members of the Executive Council who voted in favour of relevant resolutions at either meeting were acting under any form of duress or without proper appreciation of what they were doing. Pastor Fa’amanu Peniata, the General Secretary of the Executive Council, gives evidence on the plaintiff’s behalf. He confirms:

(a)Notification of both Executive Council meetings to all members of the Council.

(b)Unanimous support for the resolutions by those attending.

(c)Confirmation that at a special  session  of  the  General  Council  on 12 August 2023 at which relevant quorum requirements were satisfied, the General Council passed resolutions confirming new legal representation.

[24]   I note that the resolution of 3 December 2022 was, in turn, confirmed under the signature of the eight Executive Council members who supported the resolutions. As indicated, these included  the  General  Superintendent  on  whose  instruction  Ms Woodroffe says the proceeding was initiated. None of these eight people depose to having had their will in any way overborne or to any inadequacy of comprehension about what they were voting for. I am unable, therefore, to accept Ms Woodroffe’s argument in this respect.

[25]   I reject also her argument based on the agency of the General Superintendent. His role in relation to “legal matters” is recognised in the plaintiff’s constitution. However, on usual agency principles, any instruction must be subject to the overriding direction of the plaintiff or its Executive Council which, by cl 5(1) of the constitution, is empowered “to exercise all the powers of the General Council”. It has given such direction. The General Superintended himself was a party to the subsequent resolutions. He must be presumed to have changed his mind or to have accepted that future conduct of the proceeding occur in accordance with the unanimous wish of

those attending the Executive Council. I note that even without his vote, such a majority would have existed.

[26]   Ms Woodroffe’s third point — that there were inadequacies in notification of the two meetings — has greater potential, but I ultimately reject it also as a basis for suggesting that the notice of change of solicitor and/or discontinuance be set aside.

[27]   In the case of both Executive Council meetings, no specific agenda was published. Notification of the 3 December 2022 meeting (translated from the original Samoan by Pastor Peniata in his affidavit) was in the following terms:

Warm greetings to our Executive Council, I understand that this message may be well into the evening however I pray this message finds you well. Our legal team Simon Mount has suggested that we find a time to meet and discuss key resolutions in detail for the future of our Fellowship and to reach the said quorum as stated in our constitution for resolutions to be passed. I am humbly requesting your attendance for this important meeting scheduled for Saturday 3 December 2022 at 10 am; for members of our Council who reside in Auckland, we will meet in person at Jerome’s Conference Room, for our Council members outside of Auckland, a link will be sent out soon so that you may join via zoom and meet us virtually for these urgent matters to be resolved. I believe that we all share the same best interests of the Fellowship and that we will be able to meet this Saturday in person or virtually.

[28]In respect of the January 2023 meeting, the notice was in terms:

Warm greetings on this day, the 24th day of the New Year 2023. We continue to praise God for His faithfulness during last year and till this day. Although we traversed some difficult seasons in our Fellowship, the rough seas and strong winds tried to distract us during our voyage, however Jesus continues to find rest even in the midst of the storm. This encourages us greatly to keep navigating through these unchartered waters of the Church. God is worthy to be praised.

The purpose of this email is to advise our Executive Council of an urgent meeting requested by our Superintendent on Friday 27 January 2023 on zoom. The reason for this urgent meeting is to resolve certain issues within the Executive Council and discuss plans of moving forward so that our scheduled Executive meeting on Wednesday 8 February 2023 will focus solely on what we need to do to move forward as a national church and plan/prepare for General Council 2023 in April.

It is imperative that we all attend this meeting with our Superintendent, however if you choose to refrain or boycott these meetings, it will not affect the discussions and resolutions being passed if the quorum is met.

If you reside in Auckland, please join us in person on 13 Ronwood Avenue, Manukau. For the rest of our Council members outside of Auckland, a zoom link will be sent out following this email.

I hope to see you all there.

[29]   I have considered these notifications in the context of the material which predated them, in particular, the notification on 17 October 2022 by Timaloa Law to Ms Woodroffe advising that new solicitors had been instructed and that she “immediately stop purporting to act on [the Fellowship’s] behalf on  this matter”;  Ms Woodroffe’s refusal  to act on that advice; and Ms Woodroffe’s  application on  31 October 2022 to seek formal proof.

[30]   There can have been no real doubt that the meeting convened in early December was for the purposes of addressing these evolving concerns. The notification refers to the necessity for “resolutions”. It identifies by name Mr Mount, who would have been understood by all Executive Council members as the replacement legal counsel, and his stated suggestion to consider issues relevant to the “future of our Fellowship”. It is tolerably clear that those not supporting the substitution of Timaloa Law for Ms Woodroffe knew that the meeting was being convened to address the dispute relating to Pastor Morisa’s eligibility and the resultant proceedings, and that it is for this reason they did not attend. There is no evidence from any one of the four Executive Council members who chose not to attend that they were not aware of why the Executive Council meeting was being convened, what matters it was likely to discuss and what resolutions might emerge from it. There are no formal notification requirements in respect of Executive Council meetings.9

[31]   Notification of the January 2023 meeting was likewise opaque in terms of the matters to be discussed. However, the meeting was described as “urgent” and I accept it was always open to any member to interrogate the General Secretary as to the purpose of the meeting and its importance. Again, it is tolerably clear that all of the Executive Council members would have been aware that the meeting related to issues concerning representation in the current proceeding and whether the proceeding

9      Unlike the position of the General Council, where cl 4(4)(iv) of the constitution provides that a notice is to be given no later than four months before the date for the session with an agenda presented and distributed at least one month prior.  In respect  of Executive Council meetings,   cl 5(8) of the constitution simply provides for them to be “convened by the General Secretary”.

should continue. By this stage, hearing of the application for formal proof was imminent. It was also clear that the meeting was being convened for purposes other than the general business of the Executive Council, which was identified as a matter to be discussed at a subsequent meeting on 8 February 2023. Again, no member of the Executive Council deposes that they were ignorant of the purpose of the meeting or were in any way prejudiced by the nature of the notification.

[32]   In any event, I must, in the context of an application which seeks to set aside a notice of change of representation and discontinuance, look at the matter realistically having regard to the wider context. There is nothing in the evidence to suggest that, were either notice to be set aside and the Executive Council required to vote again on the issue, any different result would be produced. That conclusion is fortified by the resolution of the General Council on 12 August 2023 that the four dissenting voices be removed from the Executive Council and confirming the plaintiff’s current representation by solicitors and counsel other than Ms Woodroffe.

[33]   For these reasons, although I consider it would have been preferable if notification of both the December 2022 and January 2023 Executive Council meetings had included the text of proposed resolutions, I do not consider the resolutions themselves vitiated by this omission. When asked to exercise its power to set aside a notice of change of solicitor or notice of discontinuance, I consider the appropriate course is to look substantively at whether Ms Woodroffe retained the authority of the plaintiff to continue and whether substantively the plaintiff wished the proceeding to advance. In both respects, that enquiry must be answered in the negative.

[34]   As I have indicated, this is not to say that the underlying issue about the appropriateness of Pastor Morisa’s appointment as Treasurer cannot be otherwise addressed. The issue is squarely raised in the 2225 proceeding.10

[35]   As to Ms Woodroffe’s subsidiary arguments, I similarly find these unpersuasive. I regard the resolutions as clear on their face and there was no

10    I do not, in saying this, address the merits of the 2225 proceeding or the standing of the plaintiffs in that case. The argument before me progressed on the  basis that  the  appropriateness of  Pastor Morisa’s appointment could and should be addressed in that context.

requirement that the resolution relating to legal representation and that relating to discontinuance be moved by the same person. In each case the resolutions were carried unanimously by those present (in turn, satisfying quorum requirements).

[36]   Nor was there any requirement to provide the text of all the resolutions that were carried at either or both meetings as annexures to the notice of discontinuance. Indeed, there was no requirement that any of the resolutions be so annexed. I note that the other resolutions related to a request that Ms Woodroffe return any funds held on behalf of the plaintiff, representation in respect of the 2225 proceeding and a commitment to attempt to resolve the underlying dispute “in accordance with Christian values”. None of these resolutions are germane for present purposes.

Result

[37]   For the foregoing reasons, I decline the application to set aside the notice of change of solicitor and notice of discontinuance filed on 2 February 2023.

Costs

[38]   Pastor Morisa was represented at the hearing, although his counsel, Ms Barrow, did not participate, other than to endorse the submissions of Mr Mount.

[39]   Ms Barrow did, however, ask that in the event the applications were declined, I reserve an opportunity for her client to seek costs. Provisionally, I am not persuaded that a costs award would be appropriate given that Pastor Morisa’s role was peripheral to the central issue — representation of the plaintiff and its intentions in respect of the proceeding. Nevertheless, if he chooses to advance his claim for costs, that can be addressed in due course.

[40]   The plaintiff has likewise not yet addressed me on costs, either as to quantum or incidence. It may consider that a costs application is not conducive to the wider interests of reconciliation. Again, however, memoranda may be filed if costs are sought.

[41]The following timetable is to apply:

(a)Any memoranda in support of applications for costs to be filed by

14 November 2023.

(b)Any memorandum in opposition to be filed by 28 November 2023.

(c)Any memoranda in reply to be filed by 12 December 2023.

[42]   All memoranda are to be a maximum of five pages plus any relevant schedules setting out calculations.

Muir J