Waikato-Tainui Te Kauhanganui Incorporated v Martin

[2012] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-001621 [2012] NZHC 64

UNDER  the Judicature Amendment Act 1972 and the Declaratory Judgments Act 1908

BETWEEN  WAIKATO-TAINUI TE KAUHANGANUI INCORPORATED

Plaintiff

ANDTANIA ERIS MARTIN Defendant

Hearing:         2 February 2012

Counsel:         J E Hodder and J W J Graham for the Plaintiff

K J Crossland and G H J Brant for the Defendant

Judgment:      3 February 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 3 February 2011 at 2.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Chapman   Tripp   P   O   Box   993   (DX   SP20204)   Wellington   6140;   and Chapman Tripp P O Box 2206 (DX CP24029) Auckland 1140 for the Plaintiff Stace  Hammond  P  O  Box  19101  (DX  GP20026)  Hamilton  3244  for  the Defendant

WAIKATO-TAINUI TE KAUHANGANUI INC v MARTIN HC HAM CIV-2011-419-001621 3 February 2012

[1]      The plaintiff is an incorporated society registered under the Incorporated Societies Act 1908.   Its members are elected to this position; they are the representatives of the constituent marae of the Tainui Iwi.  The members collectively constitute a representative body (“Te Kauhanganui”).  The management and control of the society is vested in a 10 member executive committee (“Te Arataura”).

[2]      At the direction of Te Arataura, the plaintiff commenced this proceeding against  the  defendant,  Tania  Martin.    The  defendant  is  an  elected  member  of Te Kauhanganui, and she holds the position of chairperson of Te Kauhanganui.

[3]      In short, a dispute has arisen between the membership of Te Arataura and that of Te Kauhanganui regarding the management and control of the plaintiff.   The dispute revolves around the passing of what has become known as resolution 7 by Te Kauhanganui.      Resolution   7   proposed   alterations   to   the   society’s   rules. Te Arataura contends that resolution 7 is invalid and was passed for an improper purpose; hence this proceeding.

[4]      After   the   proceedings   were   commenced,   it   seems   that,   through   the inadvertence  of  the  Registrar  of  Incorporated  Societies,  the  new  rules  that resolution 7 achieved were in fact registered.  The impact registration has on the new rules’ status and the plaintiff’s challenge to their validity are issues to be considered in the substantive proceeding.

[5]      Both the old and the new rules provide for triennial special meetings and elections of members to Te Kauhanganui and Te Arataura.  In particular, they provide that every three years, Te Kauhanganui elects members to Te Arataura at a triennial special meeting.  The triennial special meeting takes place following the election of new members to Te Kauhanganui by each constituent marae.  It is accepted that in terms of the rules (both new and old), the elections should have occurred last year.

[6]      The defendant has deposed that Te Arataura sets the date for the triennial special meeting and that last year in July 2011 it set 12 February 2012 as the date for this meeting.  She argues that once the date is set, the meeting should proceed and that it is her role as Chairperson of Te Kauhanganui to ensure the meeting goes

ahead.  She contends that her actions have the full support of Te Kauhanganui. Thus, she has prepared for the meeting to occur on 12 February 2012 with an induction day to occur on 4 February 2012, prior to the meeting.

[7]      In  January 2012,  the Court  Registry issued  a  fixture notice advising the parties that the hearing of the substantive matter would proceed on 20 February

2012.   Consequently, Te Arataura acted to postpone the triennial special meeting until 4 March 2012 on the basis that by then, the proceeding would have been heard and  determined.    When  the  defendant  on  behalf  of Te  Kauhanganui  refused  to recognise the postponement of the meeting until 4 March 2012, the plaintiff at the direction of Te Arataura applied for an interim injunction to restrain the defendant and any of her agents or associates among the elected members of Te Kauhanganui from notifying, advertising and proceeding with the meetings of the members of Te Kauhanganui on 4 and 12 February 2012.

[8]      In  the  notices  advertising  the  meetings,  the  4  February 2012  meeting  is described as a “casual day” and it is said to be an induction meeting to advise newly elected members on matters of process.   The plaintiff accepts that any dispositive steps  will  occur  at  the  meeting  on  12  February  2012  and  that  the  meeting  of

4 February 2012 will not result in any formally binding resolutions.   However, the plaintiff contends that the meeting of 4 February 2012 is intimately connected with the 12 February 2012 meeting.  The plaintiff argues that the meeting on 4 February

2012 will be used to induct members elect of Te Kauhanganui on the altered rules of the society and to undertake preparations for elections to Te Arataura.  The plaintiff contends that it is clear from the agenda circulated by the defendant that she intends to hold the meetings in February under the new rules.

[9]      The defendant for Te Kauhanganui argues that the meeting of 4 February

2012 is a necessary preliminary to the meeting of 12 February 2012 so that by stopping the 4 February 2012 meeting, the plaintiff will by default achieve its aim to stop the 12 February 2012 meeting as well.   Thus, an injunction preventing the meeting on 4 February 2012 would mean that no elections could take place until the Court has ruled on the substantive proceeding.

[10]     The application came on for hearing today on an urgent basis.  The plaintiff has had no opportunity to reply to the material.  Furthermore, whilst the defendant was able to be represented in Court, the plaintiff appeared via telephone.  I consider that in the time available, neither party has had a proper opportunity to advance the arguments for their respective cases.

[11]     Given the importance of the matter to the parties, I have arranged an urgent fixture for the hearing of the interim injunction application.  This will take place at

10.00 am on 8 February 2012.   The purpose of the hearing will be to determine whether or not the meeting of 12 February 2012 should proceed.   There remains, however, the problem of dealing with the application insofar as it seeks to prevent the  meeting  of  4  February  2012  from  proceeding.     Because  of  the  possible prejudicial  impact  preventing  the  4  February  2012  meeting  might  have  on  the meeting of 12 February 2012, this aspect of the application must be resolved now.

[12]     The plaintiff argues that the matters to be considered at the 4 February 2012 meeting could be compressed into the meeting on 12 February 2012.  However, as the  purpose  of  the  4  February  2012  meeting  was  to  provide  new  members  of Te Kauhanganui with copies of the plaintiff ’s rules and standing orders, I can see the benefit of having a general induction meeting in advance of the formal meeting when the elections will take place.

[13]     The plaintiff contends that if the meeting of 4 February 2012 proceeds, it will risk confusion and disharmony among the members of Te Kauhanganui, even though nothing formally binding will eventuate from the 4 February 2012 meeting.   The plaintiff argues that it is prudent to maintain the status quo that existed before the dispute arose.

[14]     On the other hand, the defendant argues that there will be no harm to the plaintiff’s case if the meeting on 4 February 2012 proceeds since nothing binding will  occur.    She  says,  however,  that  Te  Kauhanganui  will  be  prejudiced  if  the meeting  on  4  February 2012  does  not  proceed  as  that  will  in  turn  prevent  the

12 February 2012 meeting from taking place.  Thus, by achieving the prevention of the first meeting, the plaintiff will by default achieve its ultimate aim of preventing

the special triennial meeting from occurring before the proceeding has been heard and determined.

[15]     Given  the  availability  of  time  to  hear  full  argument  on  the  injunction application on 8 February 2012, it seems to me that the crucial point for now is to preserve the present position as much as possible until then.  Thus, I am faced with weighing the plaintiff’s concerns to avoid confusion and disharmony amongst the members elect of Te Kauhanganui against the defendant’s concerns that to lose the first meeting will necessarily entail losing the second meeting as well.  To reduce the prejudice that the plaintiff might suffer if the 4 February 2012 meeting proceeds, the defendant has offered to have the old rules and standing orders as well as the new rules (passed by resolution 7) made available to the attendees of the 4 February 2012 meeting.   The plaintiff ’s response is that this will only add to the confusion this meeting will cause.

[16]     I have not had sufficient time to assess the strength of the plaintiff’s case.  It raises difficult questions regarding the balance of power between the members of an incorporated society and its executive committee.  The plaintiff argues that all the members can do is vote to remove an executive whose decisions are not supported by a majority of the members.  The defendant contends that the members can, by majority  vote  at  a  special  meeting,  exercise  authority  that  is  binding  on  the executive.   For the purpose of the present argument, I propose to assume that the plaintiff has a serious case to be tried.  However, I consider that when it comes to an order preventing the meeting of 4 February 2012 from taking place, the balance of convenience clearly favours refusing to make any such order.

[17]     Whilst I accept that confusion and disharmony among the members of an incorporated society is something to be avoided, I consider that the risk of this occurrence is less of a concern than would be the loss of the 12 February 2012 meeting by default.  The former can, with some effort, be rectified, whereas the latter cannot; nor can any harm the defendant might suffer as a result of an injunction be later compensated by damages.   For these reasons, I consider that the balance of convenience clearly favours refusing an order to restrain the meeting of 4 February

2012 from taking place.   However, I consider that at the meeting, the defendant

should take steps to ensure that those who attend are well informed about the Court hearing on 8 February 2012 and the possibility that it could result in the meeting of

12 February 2012 not proceeding.

Duffy J