BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 960

BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 960 [4 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-836[2018] NZHC 960BETWEEN HARPREET BHULLARApplicantAND AUCKLAND CO-OPERATIVE TAXISOCIETY LIMITEDRespondentHearing: 4 May 2018Counsel: R S Pidgeon for ApplicantG J Judd QC for RespondentJudgment: 4 May 2018JUDGMENT OF JAGOSE JThis judgment is delivered by me on 4 May 2018 at 5.45pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel:R S Pidgeon, Barrister, AucklandG J Judd QC, Auckland[1] The applicant, Harpreet Bhullar, is a taxi driver under the banner of therespondent ("Co-op Taxis"). He became a Co-op Taxis shareholder in 2007, and waselected to its board of directors (the "Board") in 2016.[2] By letter of 31 January 2018, Co-op Taxis' solicitors, Fortune Manning,notified Mr Bhullar of Co-op Taxis' receipt and investigation of a complaint againsthim, contending he breached Co-op Taxis' rules relating to the conduct of secret ballots(the "Rules"). If such a breach was established, the Rules require the Board to considerwhether Mr Bhullar's name should be struck from the register of Co-op Taxis'members. I understand such striking off would prevent Mr Bhullar from continuing todrive taxis under Co-op Taxis' banner.[3] Fortune Manning's letter enclosed copies of documents (predominantlywitness statements) contended to be relevant to a hearing of the complaint by anindependent panel. (I apprehend the Board would be the usual forum for such adisciplinary hearing, but for Mr Bhullar's membership of it.) On 18 April 2018,Fortune Manning advised Mr Bhullar the hearing would be held on Monday, 7 May2018, at 11am.[4] Mr Bhullar has today filed an application for judicial review, alleging variousprocess failures in the investigation and proposed disciplinary hearing, including theapparent bias of members of the independent panel and the disqualification of Co-opTaxi's solicitors. In support of that application he also seeks without notice interimorders staying the hearing, and directing the application be subject to casemanagement on the judicial review list or otherwise.[5] Section 15 of the Judicial Review Procedure Act 2016 (the "Act") provides:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[6] It is important to note, under s 15 of the Act:(a) first, interim orders are only available if, in the Court's opinion, theyare "necessary to preserve the position of the applicant"; and(b) second, interim orders are limited to prohibitions, stays, anddeclarations relating to exercise of the impugned power.[7] The position for preservation is that in which the applicant would have been,but for the decision the subject of the application for review.1 There must be "a legaland factual position to preserve".2 Further, 'necessary' means just that – "reasonablynecessary" – and we are cautioned not to add any further gloss.3[8] Without notice applications may only be determined if I am satisfied onspecified grounds the application can properly be dealt with without notice.41 Douglas Bayly Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-2465, 1 December2003 at [29].2 New Zealand Maori Council v Attorney General [1996] 3 NZLR 140 (CA) at 151.3 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754,affirming Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 perCooke J.4 High Court Rules, r 7.46.[9] I convened an urgent telephone conference at 4:10pm today with Mr Bhullar'scounsel, Richard Pidgeon, and Co-op Taxis' counsel, Gary Judd QC. Mr Judd appearedon a 'Pickwick' basis.[10] Mr Pidgeon outlined the scope of Mr Bhullar's complaints against Co-opTaxis' process, and the desirability the hearing be stayed. I asked whether Mr Bhullar'sposition was adequately preserved if the Board was prohibited from determining tostrike Mr Bhullar off the register of members pending further order of this Court. Heaccepted it would be. Mr Judd, for his part, responsibly conceded he could not resistsuch an order. I am of the opinion such an interim order is, but presently is all that is,necessary to protect Mr Bhullar's position.[11] I am also satisfied the ground in r 7.46(3)(a) is met. In particular I am satisfiedMr Bhullar would be prejudiced by being required to proceed on notice. That isbecause of the pendency of the disciplinary hearing, and the uncertainty of the time bywhich the Board may then make its decision. Mr Judd was unable, given the shortnessof time since he had received his instructions, to indicate what that subsequent periodmay be.[12] Mr Pidgeon sought a further order staying the disciplinary hearing to a laterdate, to permit Mr Bhullar's defence better to be resourced. I am not prepared tobecome engaged in what is essentially the internal administration of Co-op Taxis'disciplinary procedures, but expect counsel will collaborate to ensure both parties'material interests are properly addressed. Obviously, the legitimacy of Co-op Taxis'processes will depend in part on their propriety in the circumstances.[13] Pending further order of this Court, I prohibit Co-op Taxis – and, moreparticularly, its Board – from striking Mr Bhullar off its register of members.[14] I direct this proceeding be called in the next judicial review list in the Aucklandregistry.—Jagose J