BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 3341

BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 3341 [17 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-836[2018] NZHC 3341BETWEEN HARPREET BHULLARApplicantAND AUCKLAND CO-OPERATIVE TAXISOCIETY LIMITEDRespondentHearing: 5 December 2018Appearances: A Beck for the ApplicantG Judd QC for the RespondentJudgment: 17 December 2018JUDGMENT OF GORDON JThis judgment was delivered by meon 17 December 2018 at 1.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Integris Law Firm, AucklandKen Patterson, TaurangaCounsel: A Beck, AucklandG Judd QC, AucklandIntroduction[1] The applicant, Harpreet Bhullar, is a taxi driver. In 2006, he became a memberof the respondent, Auckland Co-operative Taxi Society Limited (the Society). In 2016,Mr Bhullar became a director of the Society's Board of Governance (the Board).[2] On 7 August 2017, there was an incident at Taxi House, the administrativeheadquarters of the Society, involving Mr Bhullar, another taxi driver, Gurpreet Singh1and Kevin Myers, a Compliance Officer for the Society.[3] The Board resolved to convene a hearing into alleged breaches of the Rules ofthe Society (the Rules) by Mr Bhullar.[4] As Mr Bhullar was a member of the Board, the Board appointed two delegates,Kevin Braid and Jimmy Mayes, to conduct the hearing.[5] The hearing was in two parts. First, there was a hearing to determine whetherMr Bhullar had breached the Rules (the May hearing). Mr Braid and Mr Mayesdetermined there had been breaches of two of the Rules. A further hearing followed,again presided over by Mr Braid and Mr Mayes, to determine whether Mr Bhullarshould be struck off the register of members (the June hearing).[6] Applying the test in the Rules, Mr Braid and Mr Mayes determined that it wasnot in the best interests of the Society for Mr Bhullar to remain a member of theSociety.[7] Mr Bhullar brings an application for judicial review challenging threedecisions: the decision of the Board to proceed to a hearing; the decision of Mr Braidand Mr Mayes in the May hearing that Mr Bhullar had breached the Rules; and thedecision in the June hearing that it was not in the best interests of the Society forMr Bhullar to remain a member of the Society.1 I will continue to refer to Mr Singh as Gurpreet Singh as there are two other Mr Singh's who willbe referred to in this judgment.[8] The Society opposes the application. It accepts that the three decisions areamenable to judicial review.2Background[9] The Society is duly incorporated under the provisions of the Industrial andProvident Societies Act 1908. Under the Rules, the governance of the business of theSociety is vested in the Board of Governance, which comprises six persons who mustbe members of the Society. The Society administers the affairs of approximately 700members, who are described as shareholders.[10] The Society operates under both the Rules which were registered on 6 June2013 and Operating Rules which were confirmed by the New Zealand TransportAuthority on 7 June 2013.[11] Rule 11 of the Rules sets out the grounds upon which the Board may strike amember off the register of members. One of those grounds in Rule 11(d) is, "uponbeing satisfied that it is not in the best interests of the Society that a licensee shallremain a member of the Society".[12] On 8 August 2017, the Society was due to hold elections for membership ofthe Board.[13] On 7 August 2017, Gurpreet Singh went to the office of Mr Myers.Gurpreet Singh had purchased a share in the Society on 1 August 2017 and he askedMr Myers whether he was eligible to vote in the upcoming elections. Mr Myers'position was that Gurpreet Singh was eligible to vote. He would be a shareholder atthe date of the elections. There was then some discussion between the two menregarding a special vote. During this discussion, Mr Bhullar came into Mr Myers'office and the Society's position is that Mr Bhullar interfered in the discussionregarding Gurpreet Singh's voting. Mr Bhullar strongly denies the allegations.2 Deep v Auckland Gold Line Co-operative Taxi Society Ltd [2018] NZHC 499, [2018] NZAR 468at [25].[14] On 9 August 2017, Mr Myers made a written complaint against Mr Bhullar. Inthat complaint, Mr Myers stated that there was no doubt in his mind that Mr Bhullarhad an undue influence on Gurpreet Singh to deprive him of his democratic right tohave a special vote. The complaint was received by Barrie White, the GeneralManager of the Society, who also received a number of complaints from other staffabout Mr Bhullar's behaviour at the time of the incident I have referred to. Mr Whitereferred the matter to Fortune Manning, solicitors for the Society, for an opinion.[15] Fortune Manning provided written advice in a letter dated 16 August 2017.The letter stated that there were two issues arising out of the incident. One waspossible breaches of the voting rules of the Society. The other issue raised was healthand safety implications both in relation to Mr Myers and for staff whose complaintsindicated they were very distressed by Mr Bhullar's actions.[16] The Board met on 17 August 2017. Although Mr Bhullar was present at thestart of the meeting, he was advised that due to his conflict of interest he would haveto leave the meeting. The meeting was also attended by Shafraz Khan, a partner ofFortune Manning and the author of the 16 August 2017 letter. The Board resolved toappoint a lawyer from Fortune Manning to conduct interviews with all thecomplainants and furnish a report to the Board. Witness statements were accordinglyprepared by Fortune Manning.[17] The Board met again on 6 November 2017. Mr Khan was again present.Mr Bhullar was not. Mr Khan presented a copy of the findings by Fortune Manningon the allegations made against Mr Bhullar in relation to the 7 August 2017 incident.[18] The Board resolved "that it will appoint an independent panel to undertake the11(d) hearing in its place and endorse, without reservation, any recommendations theindependent panel makes".[19] The Board also resolved that it "will ask the GM Barrie White to provide a listof probable panel members that have taxi business knowledge out of which a panel oftwo members will be selected by the Board to carry out the 11(d) hearing".[20] The Board then met again on 27 November 2017. The minutes record thatMr Bhullar was not present due to a conflict of interest. The Board resolved that itwould appoint "Mr Kevin Braid and Mr Jimmy Mayes to be the independent panel toconduct the 11(d) hearing for Mr Harpreet Bhullar, cab 658, to be held at Taxi Houseon a date and time to be determined".[21] Mr Bhullar was advised of the allegations against him by way of a letter dated31 January 2018 from Fortune Manning. The letter summarised the allegations againstMr Bhullar as follows:In August 2017, the Board of the Society received several complaintsregarding an incident that occurred on 7 August 2017. These complaintsraised allegations against you of threatening and abusive behaviour.On 17 August 2017, the Board resolved to investigate these allegations. In thecourse of this investigation statements were obtained from a number ofwitnesses. On the basis of these statements, the allegations against you canbe summarised as follows:1. On 7 August 2017, at around 11.30am, a shareholder came to theoffice of one of the Society's Electoral Officers, Kevin Myers JP ("MrMyers"), at Taxi House. The shareholder had purchased share 451 on1 August 2017.2. The shareholder queried whether he was eligible to vote. Mr Myersdetermined that the shareholder was eligible to vote because he wouldbe a shareholder at the time of the election, which was due to takeplace on 8 August 2017.3. The shareholder was asked if he wished to cast a special vote. Theshareholder nodded in response. Mr Myers provided the shareholderwith the special vote request form to fill out. This form determinedshareholders' eligibility for such a vote. Mr Myers explained to theshareholder that he could also vote on the day of the election.4. You then entered into Mr Myers' office while the shareholder wasfilling out the form. You shouted at the shareholder, asking who hadtold him to vote, and telling him to vote on Election Day.5. You were asked by Mr Myers to leave his office immediately. Yourefused to do so. Mr Myers advised you that you had no right to be inhis office. Mr Myers attempted to close his office door, but you forcedit back open. You continued to shout at Mr Myers and the shareholder.6. Shaun Williams and Mike O'Brien arrived at Mr Myers' office afterhearing your shouting. They removed you from Mr Myers' office.You remained on the floor, however, and continued to argue in a raisedvoice. You accused the Electoral Officers of forcing shareholders tovote against their will.7. Your actions occurred in plain sight of all call centre employees atTaxi House. This caused great distress to several employees whofeared for their safety.8. You continued to shout as you went downstairs to the second floor.Several staff on their breaks became very distressed by thecommotion. You then moved to the Chairman's office where youcontinued your aggressive behaviour in sight of all staff.9. The shareholder did not continue with his vote and left the Mr Myers'office. He never completed his request form.[22] The letter then continued by setting out the relevant rules as follows:Breach of the Rules of the SocietyThe above actions, if proven, can be a breach of Rules 11(a) and (g) ofSchedule A of the Rules of Society. These Rules provide as follows:"11. Offences relating to the Conduct of Secret Ballots(a) Interfering with or influencing voters,Every person to whom these by-laws apply commits a seriousbreach of these by-laws if that person –(i) In any way interferes with an elector, with theintention of influencing the elector or advising theelector as to the elector's vote;(g) Undue InfluenceEvery person to whom these by-laws shall apply commits aserious breach of these by-laws and is guilty of a corruptpractice if that person:(i) Directly or indirectly, by himself or herself or by anyother person on his behalf, makes use of or threatensto make use of any force, violence or restraint, orinflicts or threatens to inflict by himself or herself orby any other person, any temporal or spiritual injury,damage, harm or loss upon or against any person inorder to induce or compel that person to vote for oragainst a particular motion or motions and/or foragainst a particular motion and/or for against aparticular candidate or to refrain from voting (ii) By abduction, duress, or any other fraudulent deviceof contravenes, impedes or prevents the free exerciseof the voting of a member, or thereby compels,induces or prevails upon a member either to vote orto refrain from voting".A breach of either Rule 11(a) or 11(g) is considered to be a serious breachunder Rule 3 of Schedule A. This Rule provides as follows:"3. The seriousness of a breach of these by-laws(a) The preservation of the rights of members to a secretballot and the preservation of the integrity of thevoting system is a matter of great importance. Anybreach of these by-laws shall be regarded by theSociety as requiring the Board to consider whether ornot the name of any member committing a breach ofRule 27 or any of these by-laws should be struck offthe register of members pursuant to Rule 11(d) of theRules".Rule 3 makes it mandatory for this matter to be referred to the Board for an11(d) hearing. Under Rule 11(d) the Board may strike a member off theregister of members upon being satisfied that it is not in the interests of theSociety that a licensee shall remain a member of the Society.[23] In relation to the panel for the hearing, the letter advised:You are currently an elected member of the Board of the Society. For thisreason, the Board has decided not to adjudicate the 11(d) hearing itself, asthere is a risk that any decision of the Board can be called into question forbias. Instead, the Board has appointed an independent panel to adjudicateyour hearing. The Board will follow any decision of the panel on this matter.The members of the panel will be Mr Jimmy Mayes, former shareholder anddirector of the Society and Mr Kevin Braid, currently Director of Hutt andCity Taxis.[24] Finally, the letter stated that Mr Bhullar would be advised in due course of thehearing date and that at the hearing he would be provided the opportunity to presenthis defence to the allegations that had been made against him. Copies of the variouswitness statements were enclosed.[25] On 18 April 2018, Mr Bhullar was advised that a hearing, pursuant toRule 11(d) of the Rules, would be held on Monday 7 May 2018.[26] On 3 May 2018, Mr Bhullar filed his application for judicial review togetherwith an application for interim relief seeking orders staying the forthcoming hearingon 7 May 2018. Before Jagose J, counsel then acting for Mr Bhullar, accepted that hisposition would be adequately preserved by an order that the Board be prohibited fromdetermining to strike Mr Bhullar off the register of members (rather than an orderstaying the hearing). The Society did not resist such an order. On 4 May 2018,Jagose J accordingly ordered that pending further order of this Court, the Society, andmore particularly the Board, were prohibited from striking Mr Bhullar off the registerof members.[27] By letter dated 7 May 2018, from Fortune Manning to counsel then acting forMr Bhullar, confirmation was given that the hearing that had been set down for thatday would proceed on 11 May 2018. The letter also confirmed that the hearing on11 May 2018 would consider whether there had been a breach of Rules 11(a) and/or11(g):For the avoidance of doubt, we also confirm that Friday's hearing will be toconsider whether or not your client has breached rules 11(a) and/or (g). If thepanel finds that those rules have been breached, the panel will be asked toconsider whether he should be struck off the register, it being mandatory thatthis be considered. Your client will be given the opportunity to be heard beforeany decision is made. If the decision is that he should be struck off the register,the Society will need to apply to the court to rescind the interim order.[28] In a letter also dated 7 May 2018, counsel then acting for Mr Bhullar recordeda concern on behalf of Mr Bhullar of apparent bias in relation to Mr Braid andMr Mayes, and asked whether the Society would be willing to change the judges. Ina letter the following day, Fortune Manning responded on behalf of the Society statingthat the Society was not prepared to make any changes to the composition of the panel.[29] The hearing before Mr Braid and Mr Mayes proceeded on 11 and 21 May 2018.Both the Society and Mr Bhullar were represented by counsel. Evidence was givenby witnesses who were cross-examined. Mr Braid and Mr Mayes delivered a writtendecision (undated) which concluded with their finding that Mr Bhullar had breachedRules 11(a)(i) and 11(g).3 They recorded their understanding that the "penalty" forthe breach would be considered at a hearing pursuant to Rule 11(d). They stated thatthe reasons for Mr Bhullar's actions and his explanations should be considered then.They reverted the matter to the Board for a hearing under Rule 11(d).[30] That hearing took place on 25 June 2018, again before Mr Braid and Mr Mayes,with a written decision being delivered on 12 July 2018. The written decision recorded3 It appears from the decision that Mr Braid and Mr Mayes found there was a breach of both Rule11(g)(i) and (ii).the determination of Mr Braid and Mr Mayes that it was not in the best interests of theSociety that Mr Bhullar remain a member. The decision records that they now put thisforward to the Board.[31] The decision has not been implemented because of the interim order of thisCourt of 4 May 2018. However, the request the Board made to Mr Bhullar not to cometo Taxi House except for meetings of the Board still applies.[32] Mr Bhullar filed an amended statement of claim on 3 August 2018 and astatement of defence was filed by the Society on 24 August 2018.First challenged decision – the decision to convene a hearing[33] Mr Bhullar alleges that the Board's decision to hold a hearing was unlawful.The allegations can be distilled into the following four grounds:(a) In determining to hold a hearing, the Board's focus was not on theallegations made against Mr Bhullar, but to set up a process that wouldget rid of him;(b) The Board did not consider or seek submissions on an alternativecourse of action. Its decision to proceed to a hearing was adisproportionate response to the 7 August 2017 incident;(c) The investigation began as a health and safety complaint andmetamorphosed into a breach of election regulations complaint withoutany consultation with or input from Mr Bhullar; and(d) At the Board meeting where the decision to proceed with the hearingwas made, the directors rubber-stamped the recommendation ofFortune Manning without making their own considered decision.[34] I will deal with each of the grounds in turn. But first I add some further detailto give context to the first ground.[35] Mr Bhullar says that there are two factions within the Society, each with itsown agenda. He says that the interests of one faction are represented by the Chair ofthe Board, Yakub (Jacob) Patel, and two other Board members (the managementfaction). The other faction is represented by Mr Bhullar and one other Board member(the member faction).4 The Society admits only that there are factions within theSociety.[36] Mr Bhullar says that one of the issues on which the factions have beenfundamentally divided is the question of whether to extend the period for which theChair of the Board can hold office. The management faction has been attempting todo this and this has been opposed by the member faction.Ground a[37] In support of the first ground, Mr Beck, who appeared for Mr Bhullar, submitsthat the minutes show from the outset that the Board was focused on holding aRule 11(d) hearing. The Board was steering firmly in one direction. Mr Beck submitsthat at the time the Board decision was made, it was under the control of themanagement faction and the decision was made in the interests of that faction ratherthan in the interests of the full body of members of the Society. The decision wastaken at a time when the balance of power within the Board was in favour of themanagement faction, with the Board having continually refused to call a meeting tofill the vacancy in the Board. The reason to discredit Mr Bhullar was because he wasopposed to a motion to change the constitution of the Society allowing for an extendedterm for the Chair of the Board at a time when Mr Bhullar was standing for re-electionto the Board.[38] Mr Beck supports his submission that the Board was focused on having aRule 11(d) hearing to oust Mr Bhullar and that there was a proposal that there be onlyone hearing, namely a hearing under Rule 11(d), first by reference to a sentence in the16 August 2017 letter from Fortune Manning to Mr White which states:Rule 3 above makes it mandatory for this matter to be referred to the Boardfor a 11(d) hearing.4 At the relevant time, there were five rather than six Board members.[39] Mr Beck then refers to the statement in the minutes of the Board meeting on6 November 2017 that:According to the Society's rules, the only option of the breach of the Society'sRules by Mr Harpreet Singh Bhullar is of hearing according to Rule 11d.[40] Mr Beck says this was a "jumping of the gun". There first needed to be aninvestigation for the purpose of establishing whether there had been a breach. It waspremature to determine that there should be a hearing under Rule 11(d). The Boardwas setting up a hearing to enable Mr Bhullar to be struck off rather than proposing aprocess that there be a genuine inquiry into a breach of electoral rules.[41] I do not consider there is any substance in this ground. It is not supported bycontemporaneous documents, nor by the process that was in fact followed whichinvolved two separate hearings, namely a hearing for the purpose of establishing ifthere were breaches and then a hearing under Rule 11(d).[42] First, in terms of the contemporaneous documents, the statement in the FortuneManning letter and the Board minutes relied upon by Mr Beck need to be read in theirproper context.[43] The Fortune Manning letter of 16 August 2017 states: I have considered whether the actions breached the Rules of the Society. Iconsider the actions, if proven, can be a breach of Schedule A, Rules 11(a) and(g) The Board will be required to give notice to Harpreet regarding thiscomplaint against him and give him an opportunity to present defence to anyallegations made. These allegations are serious and can lead to the loss of hisshare (Emphasis added)[44] The letter concluded:In our opinion this matter should be referred to the Board to conduct an 11(d)hearing. However, before a 11(d) hearing is commenced, the Board shouldfully investigate the matter, including obtaining witness statements from allpersons involved. Any 11(d) hearing will have to determine two issues.Firstly, the Board has to determine whether the evidence supports the breachof the Rules. If the Board finds that there is insufficient evidence to concludethat the Rules were breached, that will be the end of the matter. If the Boardfinds that the Rules have been breached, then the Board will need to considerwhether it is in the best interests of the Society that the member remains amember of the Society [in accordance with Rule 11(d)].(Emphasis added)[45] As to the Board minutes of 17 August 2017, they state:It was stressed [by Mr Khan of Fortune Manning] that we need to take thismatter seriously as the allegations are regarding the integrity of our electionprocess. On the same token, the process can have dire consequences forBhullar. We therefore need to properly investigate the complaints todetermine if they have any substance. We cannot make such allegations,especially against an elected member of the Board lightly.[46] Then, in the letter of 31 January 2018 from Fortune Manning on behalf of theBoard to Mr Bhullar, after summarising the allegations against him, the letter states,"[t]he above actions, if proven, can be a breach of Rules 11(a) and (g) of Schedule Aof the Rules of Society" (emphasis added).[47] The letter further records that at the hearing Mr Bhullar would be providedwith the opportunity to present his defence to the allegations that had been madeagainst him.[48] Therefore, the contemporaneous documentary evidence makes it clear thatwhile the Board referred to holding a hearing under Rule 11(d), it was contemplatedthat the hearing would have two parts. First, to establish whether or not there had infact been breaches and only if that was the case would the next step, to determinewhether it was in the best interests of the Society that Mr Bhullar remain a member ofthe Society, occur.[49] In relation to this ground, Mr Beck makes an additional submission that theBoard did not authorise Mr Braid and Mr Mayes to conduct a hearing to establish ifthere had been breaches of Rules 11(a) and/or 11(g). The Board only authorised thepanel to conduct a Rule 11(d) inquiry.[50] There is similarly no substance in this submission. A reading of thecorrespondence from Fortune Manning, which informs the minutes, and the minutesthemselves makes it clear that when the Board referred to a Rule 11(d) hearing and toappointing a panel to undertake such a hearing, it was contemplated that such a hearingwould have two parts, namely a liability part and then a penalty part.[51] In relation to the first ground, Mr Bhullar also says that the decision to hold ahearing was made in the best interests of the management faction led by the Chair ofthe Board, Mr Patel, and that the Board had continually refused to call a meeting tofill the vacancy on the Board (as referred to in [37] above).[52] There is an affidavit of Manjit Singh sworn in support of the application forreview. Manjit Singh is now a director of the Society. In his affidavit, he says that hewrote to the Board seeking to become a director as the first alternate unsuccessfulapplicant at the prior election. Manjit Singh deposes that this was ignored by theBoard who instead operated with only five directors after one had resigned. Hedeposes that the refusal to elevate him to the Boardroom table meant that the Chair ofthe Board, Mr Patel, could operate with a majority to take the steps he did against MrBhullar.[53] Mr Patel has sworn an affidavit in opposition to the application for review inwhich he refutes Manjit Singh's allegation. Mr Patel deposes that the casual vacancyarose because a former director had left the Society and subsequently New Zealand.There was less than six months to run before the next Annual General Meeting andconsequent voting of a new Board of Directors. Mr Patel says there is the power butnot the obligation for the Board to co-opt a member in if they see the need to do so inall the circumstances. It is not mandatory, and the current Board did not see the needto do so.[54] Mr Patel says that the decision to conduct a hearing arose directly as aconsequence of Mr Bhullar's conduct and had nothing to do with the composition ofthe Board. The decision to investigate and the hearing procedures were supported byall the Board members (other than Mr Bhullar).[55] Although there was no cross-examination on the affidavits, the evidence ofMr Patel is consistent with the contemporaneous documents.[56] I therefore do not accept that the decision to hold a hearing arose from anyfactional interests.Ground b[57] I turn to the second ground, namely that to hold a hearing was adisproportionate response by the Board which did not consider or seek submissionson any alternative course of action.[58] It is factually correct that the Board did not consider or seek submissions onwhether no action should be taken, but it is not apparent how that allegation can giverise to judicial review. Complaints need to be investigated. If they are found to havesufficient substance, the proper procedure is to have a hearing when the person, subjectof the complaints, will be heard. In Reid v Institute of Chartered Accountants,5Mr Reid, an accountant, brought an application for judicial review of a decision of theInstitute of Chartered Accountants, seeking orders reviewing a decision of theProfessional Conduct Committee (PCC) of the Institute, which considered a complaintmade by him to the Institute against his former firm and two of his former partners inthat firm.[59] The rules of the Institute required the PCC to investigate complaints and todecide what further action (if any) would be taken on the complaint.6 The PCC wassimply a preliminary investigatory body.7 The Court stated:[21] As was usually the case, evidence and cross-examination is notrequired nor are the parties or legal representatives present. That is entirelyappropriate at that stage of the disciplinary process [23] The determination at this stage is not to decide the issue, nor todecide to bring charges, or to decide that a prima facie case exists, but todecide what course of action to adopt.5 Reid v Institute of Chartered Accountants HC Wellington CP87/02, 23 October 2002.6 At [4].7 At [15].[60] Having received the report and witness statements from Fortune Manning, theRules required that there be a hearing. The Rules govern the course that the Boardwas required to follow.[61] Rules 27(d) and (e) of the Rules provide as follows:(d) Secret ballots shall be conducted in accordance with the secret ballotby-laws that appear as schedule A to these rules;(e) Every vote for the election of members to the Board shall be by secretballot.[62] The voting that was to take place on 8 August 2017 was for election of Boardmembers. That therefore leads to by-law 3 contained in Schedule A to the Rules. Thatby-law provides:3. The seriousness of a breach of these by-laws(a) The preservation of the rights of members to a secret ballotand the preservation of the integrity of the voting system is amatter of great importance. Any breach of these by-laws shallbe regarded by the Society as requiring the Board to considerwhether or not the name of any member committing a breachof Rule 27 or any of these by-laws should be struck off theregister of members pursuant to Rule 11(d) of the Rules.(Emphasis added)[63] There is no other rule or by-law that provides an alternative mechanism.Accordingly, any complaints and misstatements which indicate a possible breach ofthe voting system of necessity indicates a process requiring a hearing. If a breach ofthe relevant by-laws is established, then that will inexorably lead to a determinationunder Rule 11(d).Ground c[64] I next turn to the allegation that the investigation began as a health and safetycomplaint and metamorphosed into a breach of election regulations complaint(without any consultation with Mr Bhullar).[65] As is apparent, the process started with a complaint from Mr Myers on9 August 2017. Mr Myers' statement of that date clearly raises the issue of possibleinterference with Gurpreet Singh's voting.[66] It was the letter of 16 August 2017 from Fortune Manning which suggested theBoard consider the health and safety implications of Mr Bhullar's actions in additionto the possibility of offences relating to the conduct of secret ballots. The minutes ofthe Board meeting of 17 August 2017, as far as health and safety concerns go, simplyrecord that Mr Khan read out his opinion which included the reference to health andsafety implications. The minutes of the meeting otherwise focus on the possiblebreach of the electoral rules. The process that the Board agreed would be followedwas for an investigation in connection with the election process, not health and safety.[67] I have already addressed the issue of consultation. There was no requirementfor Mr Bhullar to be consulted at this stage of the process.Ground d[68] I next turn to the allegation that in deciding to convene a hearing, the Boardeffectively adopted the recommendation of Fortune Manning in a rubber-stampingfashion.[69] The witness statements compiled by Fortune Manning and Fortune Manning'sreport were presented at the Board meeting on 6 November 2017. There is nothing inthe minutes to suggest the Board resolved to proceed to a hearing on a "rubber-stamping" basis. The minutes record that Mr Khan joined the meeting at 11.10 amand presented a copy of the finding by Fortune Manning on the allegation and thereport compiled from witness statements. The minutes record that the meeting closedat 12.40 pm. The only other (and related) matter recorded was that the Board wouldask the General Manager, Mr White, to provide a list of probable panel members.There was certainly opportunity for the Board members to consider the report andwitness statements, and there was nothing in the minutes to suggest they did not dothat.[70] Mr Bhullar has failed to make out any grounds in support of his first cause ofaction.Second challenged decision – the decision that Mr Bhullar breached the electoralby-laws[71] Mr Bhullar says that the decision in the May hearing was not a properly madedecision. Mr Braid and Mr Mayes were not authorised to act as delegates of theSociety. Nor were they independent. It is also alleged that the decision containsseveral errors of law.Delegation[72] Mr Beck submits that the only authority conferred on Mr Braid and Mr Mayeswas at the Board meeting of 27 November 2017 where it was resolved to appoint themas the independent panel to conduct the Rule 11(d) hearing. Mr Beck continues thatthe May hearing was a hearing into breaches of electoral laws contained in Rules 11(a)and 11(g). This was not what the Board had authorised and no lawful delegation wasin place.[73] I do not consider there is any substance in this submission. I have alreadyreferred to the necessary context to the Board resolution which indicates that areference to the conducting of a Rule 11(d) hearing necessarily included a priordetermination as to whether or not there had in fact been a breach of the Rules.[74] This is reinforced by the affidavit of Mr Patel who deposes that the hearings tobe scheduled were clearly with respect to the breach of the voting rules. He says itwas always the Board's intention that if the person was found guilty of breaching thoserules, then the independent panel would go on to carry out the mandatory requirementunder Rule 11(d).[75] Mr Patel further says that after the hearing before Jagose J, in order to be fairto Mr Bhullar, the hearing scheduled for Monday 7 May 2018 was adjourned and theBoard accepted advice to conduct the hearing in two parts (with the second part onlybeing necessary if there had been a breach of the Rules).Apparent bias[76] At the first Board meeting on 17 August 2017, the Board was alive to the issueof bias if it were to consider the matter itself because Mr Bhullar was an electedmember of the Board. Further, if the Board were to undertake the investigation, inpractice that would be handled by management. That would have given rise to anotherissue in that members of management had made witness statements. For all thosereasons, first, the preliminary investigation was carried out by a solicitor from FortuneManning. Second, at the Board meeting on 6 November 2017, the Board resolved thatthe General Manager, Mr White, should provide a list of probable panel members withtaxi business knowledge to the Board, which would then select a panel of two.[77] Mr White's evidence was that the qualifications that the Board were lookingfor in terms of the independent panel were people with obvious integrity and honesty,but also people who not only had the knowledge of the taxi industry, but also hadexperience in that industry. They would also have experience in terms of disputeresolution or matters that affected the operation of taxi companies at a governance orupper management level.[78] Mr White further says that they would be seeking people who preferably hadbeen involved in a relatively large taxi company and/or involved at a level of seniormanagement or Board input. They would also be seeking people who had beeninvolved in taxi or related company enterprises where they were aware of the votingprocesses for the appointment of directors and/or Board members in such companies.[79] Mr Patel says that apart from the necessary qualities and experience, the Boardplaced no restrictions on Mr White as to whom he might approach and select ascandidates for the Board to then review and appoint.[80] Of the four people Mr White contacted, only Mr Braid and Mr Mayes were ina position where they were prepared to accept the role. Their appointment wasconfirmed by a motion passed by the Board to form the independent panel.[81] Mr Bhullar says in his affidavit that Mr Braid is a taxi proprietor in Wellingtonand Wairarapa, and was formerly the General Manager of Wellington Combined TaxisLtd which holds a 21.93 per cent share in Taxi Charge. Mr Bhullar also says thatMr Braid is currently a director of Hutt and City Taxis, which is a class B shareholderof Taxi Charge.[82] In the pleadings, it is accepted that Taxi Charge is a billing solution providerused by entities which have accounts with the Society and by other companies whichhave a shareholding in Taxi Charge. It is also accepted that the Society has ashareholding in Taxi Charge,8 and that Wellington Combined Taxis Ltd has a similarshareholding.9 There is no evidence as to the percentage share of Hutt and City Taxisin Taxi Charge.[83] Mr Bhullar continues that Mr Braid is a close associate of the late Ian Graham,a key figure in the Society, Mr Patel, and Mr White.[84] In relation to Mr Mayes, Mr Bhullar says he has had long associations withMr Patel, Mike O'Brien,10 Mr Myers, Albie Williams,11 and Mr White, who(Mr Bhullar says) are all associated with the management faction represented byMr Patel (I interpolate that Mr O'Brien, Mr Myers and Mr Williams all gave evidenceat the May hearing). Mr Bhullar says that Mr Mayes is a former director of the Societyand he says Mr Mayes recently played in a golf tournament with Mr Khan of FortuneManning and a manager of the Society.12[85] Mr Patel responds in relation to his alleged connection with Mr Braid, sayingthat he was aware Mr Braid was a well-qualified director involved in the taxi industryin the Lower Hutt and Wellington areas. He was generally aware that Mr Braid wasinvolved in Taxi Charge, but Mr Patel says that he had never met him personally and8 Mr Bhullar says the shareholding is 24.65 per cent, while the Society says the shareholding is26.04 per cent.9 Mr Bhullar says Wellington Combined Taxis Ltd has a shareholding of 21.93 per cent, while theSociety says the shareholding is 24.64 per cent.10 Mr O'Brien is an Electoral Officer of the Society and made a witness statement regarding eventson 7 August 2017.11 Mr Williams is a Call Centre Manager at Taxi House and made a witness statement regardingevents on 7 August 2017.12 The manager is not named in Mr Bhullar's affidavit. But a photograph of the golf tournamentshows Mr Mayes with three others including Shafraz Khan of Fortune Manning andMike O'Brien.had no real knowledge of him, "save for the details which were presented to us by theGeneral Manager".[86] Those details, according to Mr White, are: Director of Hutt and City Taxis;Chairman of Hutt and City Taxis; General Manager of Wellington Combined TaxisLtd; Director of Taxi Charge; executive of NZ Taxi Federation; and President of NZTaxi Federation.[87] In terms of his connections with Mr Braid, Mr White says that he only everdealt with him in a professional capacity. They are not personal friends.[88] As to any connection between Mr Patel and Mr Mayes, Mr Patel says he wasaware Mr Mayes was a former shareholder and director of the Society. He knew hewas a director from 2000 to 2003 because he had seen Mr Mayes' name on the plaquewhich is inscribed with the names for each group of directors on the large honourboard of directors set up in the Board room. Mr Patel says he had not been particularlyaware of Mr Mayes within the Society. He never served on a board of managementwhen Mr Patel was there. Mr Patel himself first became a director in 2004.[89] Mr Patel says he was generally aware that Mr Mayes would have been a judgeon various panel decisions that all directors are involved in. He would have judgedshareholder lease and driver issues during that time. Mr Patel was also told thatMr Mayes had been a judge on a number of Rule 11(d) hearings during his time on theBoard.[90] Mr White does not comment on any alleged connection with Mr Mayes, saveto refer to his qualifications, which Mr White states were: a former shareholder of theSociety; a former director of the Society from 2002 to 2003; known by Mr White tohave sat on the Appeals Committee of the Society; and known by him to haveundertaken Rule 11(d) hearings for the Society.[91] The issue of apparent bias was not raised with Mr Braid and Mr Mayes at theMay hearing but, as noted, was raised in correspondence prior to the hearing in lettersbetween counsel.[92] In his oral submissions, Mr Beck put Mr Bhullar's case on the basis that thereare associations of a social nature between Mr Braid and Mr Mayes and those whomhe has named. No actual bias is alleged. He puts his case on the basis of apparentbias.[93] When pressed in the course of oral submissions, Mr Beck acknowledged thatthis was not his strongest ground of review.The law[94] In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, Blanchard Jreferred to the Australian case of Ebner v Official Trustee in Bankruptcy,13 saying:14[3] a Judge is disqualified "if a fair-minded lay observer mightreasonably apprehend that the Judge might not bring an impartial mind to theresolution of the question the judge is required to decide". As that judgmentproceeds to observe, that principle gives effect to the requirement that justiceshould both be done and be seen to be done [95] Blanchard J went on:[4] It was pointed out in Ebner that the question is one of possibility ("realand not remote"), not probability. The High Court of Australia also warnedagainst any attempt to predict or inquire into the actual thought processes ofthe judge. Two steps are required:(a) First, the identification of what it is said might lead a judge todecide a case other than on its legal and factual merits; and(b) Secondly, there must be "an articulation of the logicalconnection between the matter and the feared deviation fromthe course of deciding the case on its merits".(Citations omitted)[96] Blanchard J also referred to the fair-minded lay observer, saying:[5] The fair-minded lay observer is presumed to be intelligent and to viewmatters objectively. He or she is neither unduly sensitive or suspicious norcomplacent about what may influence the judge's decision. He or she must betaken to be a non-lawyer but reasonably informed about the workings of ourjudicial system, as well as about the nature of the issues in the case and aboutthe facts pertaining to the situation which is said to give rise to an appearance13 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (HCA).14 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.or apprehension of bias. Lord Hope of Craighead commented in Helow vSecretary of State for the Home Department that:before she takes a balanced approach to any information she is given,she will take the trouble to inform herself on all matters that arerelevant. She is the sort of person who takes the trouble to read thetext of an article as well as the headlines. She is able to put whatevershe has read or seen into its overall social, political or geographicalcontext. She is fair-minded, so she will appreciate that the contextforms an important part of the material which she must considerbefore passing judgment.[6] The courts must be careful not to subvert the hypothesis byascribing too much legal knowledge to the lay observer. To do so might meanthat justice is not both done and seen to be done by a notional representativeof the public. On the other hand, if the court does not impute to the observersome knowledge about how barristers and judges commonly interact it mayarrive at a hypothetical opinion of a hypothetical observer which does notreflect reality.[7] There therefore need to be added to the facts about the case known tothe observer, which I will shortly describe, some basic knowledge of howcounsel and judges are expected to act and interact (Citations omitted)Discussion[97] Putting the fair-minded lay observer into the hearing in this case (as opposedto a Court hearing), that observer would be presumed to have some knowledge of therole taxi organisations play in the industry and that there would be disciplinaryprocesses operating within the industry and taxi organisations. They would know thatthere will be connections between taxi organisations and that officials within thoseorganisations would fraternise with each other from time to time. They wouldtherefore know that board members would have personal and professional connectionsand dealings with Society members on whom the Board or other panel members mustsit in judgment.[98] In my view, no fair-minded lay observer would consider such connections anddealings to be sufficient to vitiate a decision for apparent bias. There would have tobe something more.[99] Is there something more in this case? The connections are said to be throughthe taxi industry and some social interaction between Mr Braid and Mr Mayes andpersons associated with the Society (although, as noted in his oral submissions,Mr Beck referred simply to social connections).[100] The allegations regarding Mr Braid are vague and generalised. Based on theevidence of Mr Patel and Mr White, there are hardly close associations between them.[101] In terms of Mr Graham, the Court was told that he died in October 2016. It isdifficult to see how Mr Braid knowing Mr Graham when he was alive could berelevant to apparent bias.[102] In terms of Mr Mayes, at its highest there is a loose past connection withpersons associated with the Society and some recent social interaction. As withMr Braid, nothing has been identified which might lead Mr Mayes to decide a caseother than on its legal and factual merits.[103] There are similarly no bases for the Court to determine that there is a logicalconnection between the association of Mr Braid and Mr Mayes with members of theSociety, and the feared deviation from the course of deciding the case on its merits.[104] The associations in this case, without more, would not cause a fair-minded layobserver to reasonably apprehend that there was a real and not remote possibility thateither of the two panel members might not bring an impartial mind to the resolutionof the questions required to be resolved. Nor has it been demonstrated that there couldbe any logical connection between the matters or connections alleged and the feareddeviation.[105] For completeness, I address two further matters on this issue. Mr Beck submitsthat apparent bias can also be inferred because the potential panel members wereselected by Mr White without any consultation with Mr Bhullar. It does not followthat Mr Braid and Mr Mayes were not independent because Mr White identified them.There is no requirement in the Rules for consultation with Mr Bhullar. A member hasno right to participate in the choice of those delegated to conduct a hearing in the placeof the Board, any more than a litigant in an ordinary court has the right to participatein the selection of the Judge who is to try his or her case.[106] Before the hearing, Mr Bhullar was advised who the panel members were tobe. The evidence of Mr White is that Mr Bhullar specifically said to him that theBoard could use "my panel", meaning Mr Braid and Mr Mayes. It is surprising, inthose circumstances, that Mr Bhullar then raises the issue of apparent bias.[107] The second matter relates to interactions between Mr Braid and Mr Mayes andcounsel then representing the Society. Affidavit evidence in support of the applicationfor review refers to small talk between counsel for the Society and Mr Braid andMr Mayes before the hearing started. It is stated that there was no such small talk withcounsel for Mr Bhullar apart from the first day. The evidence continues that Mr Mayessaid to counsel for the Society that their daughters had worked at the same law firm atthe same time. The affidavit also refers to counsel for the Society being seated veryclose to the two Judges and making eye contact with them.[108] Mr Beck did not seek to make anything of these allegations in his submissions.He was correct not to do so.Errors of law[109] The alleged unlawfulness in the decision of the panel, namely that Mr Bhullarbreached the electoral by-laws, is based on the following grounds:(a) The investigators (staff of Fortune Manning) assisted with the creationof the witness statements;(b) The interview with Gurpreet Singh was not transcribed and placed inthe bundle for use at the hearing. Mr Braid and Mr Mayes accordinglyfailed to take into account the evidence of Gurpreet Singh;(c) The decision was based on an incorrect interpretation of the law andwas not a reasonable conclusion based on the evidence; and(d) The decision of the panel does not appear to have been considered oradopted by the Board. There was accordingly no decision of the Board.[110] I deal with each of these in turn.Ground a – Fortune Manning's assistance in preparing witness statements[111] This assertion is factually correct but it does not engage any ground of judicialreview.[112] The witness statements were presented to the Board together with the legaladvice from Fortune Manning. The witness statements were supplied to Mr Bhullar.In due course, each witness confirmed his or her statement at the May hearing andthey were then cross-examined by counsel for Mr Bhullar.Ground b – Interview with Gurpreet Singh[113] Mr Beck is correct that Gurpreet Singh's interview was not transcribed, but itdoes not follow that Mr Braid and Mr Mayes failed to take into accountGurpreet Singh's evidence.[114] When Gurpreet Singh was interviewed at Fortune Manning, he wasaccompanied by Iqbal Singh. Iqbal Singh answered most of the questions (not as aninterpreter). The interview was recorded by both Iqbal Singh and a staff member atFortune Manning. The Fortune Manning recording was played during the hearing.What was said in the interview appears in the transcript of the hearing. Gurpreet Singhwas then cross-examined and re-examined.[115] There is no substance in this ground.Ground c – Incorrect interpretation of the law and not a reasonable conclusion basedon the evidence[116] Mr Beck refers to Gurpreet Singh's evidence that he was not prevented fromvoting by Mr Bhullar and that he had always intended to vote the following day,8 August 2017. Mr Beck refers to the finding of the panel that Mr Bhullar had theintention of influencing Gurpreet Singh because Mr Bhullar seemed to have beenworried about how Gurpreet Singh would vote. They found he interfered withGurpreet Singh. They also found that he used force and violence that caused GurpreetSingh not to vote.[117] Mr Beck submits it is not clear how this conclusion could have been reachedin light of the evidence of Gurpreet Singh.[118] There is a useful summary in the Laws of New Zealand of when a decision canbe said to be not a reasonable conclusion based on the evidence:15The Court has adopted various descriptions of the kinds of decision that willbe unreasonable. An unreasonable decision has been described as one:• outside the limits of reason;• that no sensible decision-maker acting with due appreciation of his or herresponsibilities could have arrived at;• that no reasonable body could have reached, that is, a decision which isirrational;• so absurd that no one could ever dream that it lay within the powers ofthe authority; or• requiring "something overwhelming": Wednesbury itself."Reasonableness" has been held to be:• determined by the application of logic and reason;• the power to be wrong only in moderation.(Citations omitted)[119] The decision in the May hearing states that the panel " found the witnessesfrom the Society to be very frank and honest. All of them are employees of the Societywho were going about their duties when the events occurred". It can be inferred fromthat statement that to the extent there was disagreement between the witnesses for theSociety and Gurpreet Singh and Mr Bhullar, Mr Braid and Mr Mayes preferred theevidence of the Society's employees. It was open to them to do so. Most of thosewitnesses had made complaints immediately after the incident and gave evidenceconsistent with the complaints they had made.15 Laws of New Zealand Administrative Law (online ed) at [103].[120] In particular, Mr Myers' witness statement contained the following:Kuram brought [Gurpreet Singh] up to see whether he could vote I asked [Gurpreet Singh] "Would you like to have a special vote?" and[Gurpreet Singh] said, "Yes". I then explained what the requirements werefor a special vote and that he would need to provide reasons for why he neededto vote prior to the election. I explained that he could vote on the day of theelection. I then gave him the special vote request form on which he started tofill out his name and other details.At this point, [Mr Bhullar] came into my office and shouted at [GurpreetSingh] "Who downstairs told you to vote?" and instructed him to "votetomorrow!" [Gurpreet Singh] was dumbstruck and did not respond. [GurpreetSingh] appeared to be intimidated by [Mr Bhullar].I considered [Mr Bhullar] had no right to be present when voting was about totake place. [Mr Bhullar] was at the doorway of the office so I told him that hehad no right to be here while a vote was going to be cast and started to closethe door. [Mr Bhullar] pushed the door back into me. At that stage I stated[sic] to be more firm and said, "Get out". It is imperative that any personvoting is to be left alone in the room when voting and that the decision to voteis made fully by them My concern is that Harpreet stopped due process in election. [Gurpreet Singh]had started to fill out the special vote form but he never completed the formand cast his vote because of [Mr Bhullar's] interference.[121] Turning then to the ingredients of the two rules. Rule 11(a) requires, first, aninterference with an elector and second, an intention of influencing the elector oradvising the elector as to the elector's vote. The panel was entitled to find on theevidence I have referred to that Mr Bhullar's actions showed that he did interfere withthe elector, Gurpreet Singh.[122] The second element is the intention of influencing Gurpreet Singh as to hisvote or advising him as to his vote.[123] The expression "as to the elector's vote" might be read in one of two ways.One way would be as to the substance of the vote. The second, and widerinterpretation, would include the process employed to vote.[124] I consider the second interpretation is the proper interpretation. I take intoaccount the importance of voting referred to in Rule 3(a), which states that the integrityof the voting system is a matter of great importance. Any interference, whether byway of substance or process, would be an offence captured by Rule 11(a).[125] The evidence of Mr Myers provided a basis for finding that Mr Bhullar had theintention of interfering with the process which Gurpreet Singh should employ to vote.In other words, not to cast a special vote that day but to come to the polling place thefollowing day.[126] Rule 11(g)(i) precludes using or threatening force or violence in order to inducean elector to vote in a particular way or refrain from voting. Rule 11(g)(ii) precludesthe use of duress to impede or prevent the free exercise of the voting of a member orby duress compelling, inducing or prevailing upon a member to refrain from voting.[127] The evidence of Mr Myers is that he attempted to close his office door so thatGurpreet Singh could vote in private, but Mr Bhullar forced it back open. Mr Bhullarcontinued to shout at both Mr Myers and Gurpreet Singh. Gurpreet Singh's evidencewas that he "squeezed the paper and put [it] into his pocket after Mr Bhullar came intothe office". The paper referred to is a special voting form. Gurpreet Singh did not endup completing the form or casting a special vote. On that evidence it was open to theBoard to find a breach of Rule 11(g)(i) and (ii).[128] It cannot be said on the basis of the evidence that the decision in the Mayhearing was unreasonable.Ground d – Decision not considered or adopted by the Board[129] Mr Beck submits that there are no Board minutes referring to the decision inthe May hearing. There was accordingly no decision of the Board to adopt the findings.[130] In the minutes of 6 November 2017, when the Board resolved to appoint anindependent panel, the resolution included that the Board would, " endorse withoutreservation any recommendations the independent panel makes". It is understandablethat the Board would make such a resolution as it was taking care that no part of itsprocess could be impugned for bias on its part.[131] It therefore did not need to formally endorse the decision once it was made. Inany event, by the process followed with Mr Braid and Mr Mayes proceeding to ahearing under Rule 11(d), the Board effectively endorsed the decision in the Mayhearing.Third challenged decision – the Rule 11(d) decision[132] Mr Bhullar contends that the decision in the June hearing that it was not in thebest interests of the Society that Mr Bhullar remain a member of the Society was animproper and irregular decision. He contends that the irregularities concern theindependence of the decision-makers, the errors of law made by them, and theimpermissible rubber-stamping by the Board of the decision of Mr Braid andMr Mayes.Ground a – Apparent bias[133] Mr Bhullar again raises apparent bias on the part of Mr Braid and Mr Mayesin relation to the Rule 11(d) hearing. There are no additional or different factors whichwould cause the Court to take a different view on the issue of apparent bias in relationto the June hearing. My conclusion is the same as my conclusion in relation to theMay hearing.[134] Mr Bhullar makes an additional submission. He says that Mr Braid andMr Mayes had already formed an unfavourable view of Mr Bhullar at the May hearing.They were, therefore, not in a position to make an objective and impartial assessmentof Mr Bhullar for the purposes of Rule 11(d).[135] There is nothing in the Rules that contemplates that finding a breach of any ofthe Rules disqualifies the decision-maker from then forming the opinion that it is notin the best interests of the Society that the person remain a member of the Society(under Rule 11(d)). Adopting a common-sense approach, the reverse in fact shouldapply. As with a criminal court or any other disciplinary tribunal deciding on penaltyafter finding a breach, it is desirable that the court or tribunal imposing penalty is thesame court or tribunal which considered the breach. That court or tribunal will beaware of relevant aggravating and mitigating features in relation to the breach whichshould then be considered at the penalty hearing.[136] In this case, Mr Braid and Mr Mayes were in no different position from theposition the Board itself would have been in had it not delegated its functions andpowers. Mr Beck did not explain how the Board should have proceeded had it beenin the shoes of Mr Braid and Mr Mayes.[137] In any event, it is not necessarily the case that a decision-maker will bedisqualified because of views previously expressed, unless those views indicate aclosed mind in relation to the issue to be decided. On this issue, Mr Bhullar makes abare assertion, without evidential support.[138] There is a helpful discussion in Russell v Taxation Review Authority, on whena Judge's attitude or state of mind might lead a detached observer to entertain questionsabout the Judge's impartiality.16 In that case, Mr Russell argued that, having beenbefore Judge Barber in a large number of cases since 1989 in respect of which it wassaid that Judge Barber had consistently held against him, there was a real danger orreal possibility that the Judge would have pre-determined many of the issues he wouldbe called upon to determine in Mr Russell's case. It was submitted that the Judge wasdisqualified on the basis of presumptive bias.[139] Cooper J referred to the following passages from a leading text:17[91] The Court of Appeal also referred to Flamm, JudicialDisqualification: Recusal and Disqualification of Judges (now in a secondedition), 2007, Banks & Jordan Law Publishing company which contains afull discussion of the relevant United States law. In Chapter 16 of that workthere is a discussion of the decision in Liteky v Unites States, and subsequentrulings by most of the Circuit Courts of Appeal, and many of the State Courts.On the basis of the summary of the various cases referred to in that chapter,the author concludes at p 443:It is now generally agreed that, absent facts from which a reasonableperson could infer that a challenged judge's rulings or decision wasthe product of actual bias, the rulings a judge renders in the same or arelated case will almost never support an inference or a presumption16 Russell v Taxation Review Authority (2009) NZTC 23,284 (HC).17 Referred to by the Court of Appeal in Muir v Commissioner of Inland Revenue [2007] 3 NZLR495.of judicial bias – much less establish the bias required to warrantdisqualification or reversal.[92] Further, at p 444 the author observes:The maxim that adverse rulings, standing alone, do not warrantdisqualification applies regardless of whether the motion to disqualifyis predicated on the judge's rulings in the same proceeding, a prior ordifferent proceeding involving one or more of the same parties, or aproceeding that is only factually similar to a pending matter. The rulealso applies without regard to the subject matter of the rulings, thetype of case in which they were rendered, or whether the rulings wereof a legal, factual, or evidentiary nature.[95] On the basis of these and other cases referred to, the author concludesat p 449-450:Thus, the mere fact that a Judge has issued rulings that a partyperceives to be unfavourable to its cause is usually insufficient toestablish disqualifying bias, even when the number of suchunfavourable rulings is on a statistical basis extremely high orpossibly suggestive of a pattern. The same is true when theunfavourable rulings are directed toward a party's counsel rather thanthe party itself. An Appeals Court is particularly unlikely to find thatrulings are indicative of disqualifying bias when they were upheld onappeal.[140] Cooper J concluded that there cannot be reasonable questions about a Judge'simpartiality arising simply from his or her determination of cases, even if there is aconsistent pattern of holding against one party.18[141] Applying that principle to the instant case, there cannot be reasonable questionsabout the impartiality of Mr Braid and Mr Mayes arising simply from theirdetermination that Mr Bhullar had breached certain electoral rules.Ground b – Errors of lawElevated standards[142] Mr Beck first submits that Mr Braid and Mr Mayes erred by interpreting Rule11(d) as requiring "an elevation of the standards that need to be considered". Mr Becksubmits that the more natural interpretation of the rule is that "best interests" is a18 At [99].composite expression. He relies on the Collins English Dictionary which says that to"act in someone's best interests" is to "act so as to benefit somebody". There is noconnotation of elevated standards.[143] I do not consider there is any substance in this argument. The phrasecomplained of by Mr Beck appears in context as follows:11. We have to consider the "best interests of the Society". It is interestingthat the rule uses the word "Best". In our view this is an elevation ofthe standards that need to be considered under this rule.[144] The Oxford English Dictionary contains the definition of "best" as: "mostbeneficial or advantageous for the object in view; most appropriate, advisable ordesirable".19 This term, in context, requires a decision not as to what is good for theSociety's interests or what might be better for the Society's interests, but what is bestfor the Society's interests.[145] Even if the term "best interests" is a composite expression, the word "best" inthat expression cannot be ignored. The Cambridge English Dictionary refers to "bestinterests" as follows:20Acting in your best interests = doing what is best for you.[146] What the rule requires therefore is that there be a decision as to what is mostbeneficial or advantageous or most appropriate, advisable or desirable in the interestsof the Society. In my view, it cannot be said that the decision was wrong when itreferred to elevated standards.[147] It is also important not to look at the test in isolation, but also to consider howMr Braid and Mr Mayes then went about their job in applying the test.[148] They first considered the Society's position, noting that the goal of the Societyis to maximise benefits for its members. In order to operate efficiently, they said thata Society should be able to grow to be able to benefit its members. Every member of19 Oxford English Dictionary (online ed, Oxford University Press, 2018).20 Cambridge English Dictionary "Meaning of 'interest' in the English Dictionary"<dictionary.cambridge.org>.the Society should get together and work within the Rules to achieve this purpose.However, they went on to immediately note that a breach of any rule does not andshould not automatically mean that a member should not be part of the Society.Everything has to be looked at in context. They said that the underlying priority hasto be, "the best interest [sic] of the Society".[149] When one considers the decision as a whole, Mr Braid and Mr Mayes, inreferring to elevated standards, were not demanding perfection from Mr Bhullar. Theyreferred to the evidence and submissions on behalf of the Society, and then turned towhat Mr Bhullar had provided in response. They noted a number of characterreferences had been provided. They accepted that Mr Bhullar seemed to be a veryrespected member of his community. They also acknowledged the compliments thathe had received as a driver and they recorded that they accepted that he is good at hisjob. They accepted that Mr Bhullar may be fit to drive a taxi, but what they wereconsidering was something different from that.[150] I do not consider Mr Braid and Mr Mayes erred in their interpretation ofRule 11(d).Irrelevant matters[151] Next, Mr Beck submits that Mr Braid and Mr Mayes took irrelevant mattersinto account. He says the Rule 11(d) hearing should have been confined to thebreaches of the two rules identified in the May hearing, but Mr Braid and Mr Mayesbased their decision on previous complaints and other actions of Mr Bhullar whollyunrelated to the breach of the Rules. He submits the decision is irreparably tainted bythese matters.[152] First, it is clear that Mr Bhullar had notice of all the matters that the Societywould be relying on in the Rule 11(d) hearing. Mr Bhullar was advised of thosematters in advance of the hearing. There can be no breach of natural justice in thatregard.[153] I return to the test to be applied – is it in the best interests of the Society that alicensee shall remain a member of the Society?[154] I agree with Mr Judd QC, for the Society, that that rule makes it clear that theBoard is able to exercise its power of removal whenever it becomes satisfied that it isnot in the best interests of the Society that a licensee shall remain a member. In thiscase, it is clear that the breach of the Rules was the final matter in a series of matters.[155] As Mr Judd submits, the separate questions need to be kept in mind. First ofall, were the Rules breached? If they were, should Mr Bhullar remain a member ofthe Society? The issue in respect of the second question was not whether the Ruleswere breached, but whether it was in the best interests of the Society that Mr Bhullarbe struck off.[156] I therefore do not consider that the other matters that Mr Braid and Mr Mayestook into account, in addition to the established breach of the Rules, were irrelevantconsiderations in the context of the test that they were required to apply.Decision was unreasonable[157] Mr Beck next submits that the decision was not a reasonable conclusion on thebasis of all the relevant evidence presented at the hearing. He says there was noobjective basis for the conclusion reached. He says the stated reason for the decisionwas as follows:The decision is, whether it is in the best interest [sic] of the Society that MrBhullar remains a member. We have come to the conclusion that it is not. Ithas become very clear from the evidence, including that provided byMr Bhullar, that he has for some time, and continues to, harbour theories offraud, conspiracies, mismanagement and wrong-doing against members of theBoard and members of staff. He was unable to bring evidence of fraud andmismanagement.[158] Mr Beck submits that what a person thinks or believes cannot, from anobjective point of view, be said to establish that continued membership is not in theSociety's best interests.[159] In identifying the particular paragraph, Mr Beck is effectively asking that it beread in isolation from all the preceding paragraphs. In those paragraphs, the panelrefers to Mr Bhullar's actions (which stem from his theories of fraud). Thosepreceding paragraphs leading up to the paragraph Mr Beck refers to, in summary,contain the following.[160] There is a reference to previous complaints against Mr Bhullar; various actionsthat Mr Bhullar has been part of against the Society; his repeated allegations of scamsand corruption in the Society; an incident (seen on video) where Mr Bhullar confrontedMr Patel in an aggressive manner; and an allegation by Mr Bhullar contained in textmessages that there were corrupt practices in the Society. The decision states thatthese could have potentially been very damaging to the Society in circumstanceswhere large contracts are at stake. The decision states that none of those actions wasdenied by Mr Bhullar. Rather, he tried to justify them.[161] The decision notes that Mr Bhullar maintained his conspiracy of fraud andwrongdoing and saw himself as the person working to expose those, but he hadproduced no concrete evidence of any fraud or conspiracy.[162] The decision continues that, in considering what is in the best interests of theSociety, Mr Braid and Mr Mayes kept in mind that the main object of a co-operativesociety is not to make money, but to grow in order to benefit its members through theirparticipation in the business and that management and governance of taxi companiesis vital for their survival.[163] The decision then states that they not only considered the rights of Mr Bhullarto be a member of the Society, but also the rights of all other members to benefit fromtheir membership as they hoped to, when becoming members of the Society.[164] All these references preceded the single paragraph which Mr Beck says wasthe stated reason for the decision. The preceding paragraphs all provide the necessarycontext.[165] The decision was not unreasonable.Ground c – Rubber-stamping of decision[166] Finally, Mr Beck submits that the Board's prior resolution to accept therecommendation of the independent panel "without reservation" was not anappropriate decision.[167] Mr Beck submits that under the Rules, the Board is given the ability to delegateany powers conferred on it by the Rules. This power of delegation appears under theheading "Management". However, Mr Beck says Rule 11(d) is not a managementrule. It addresses the rights of a person to remain a member of the Society. Beforeexercising its power, the Board has a duty to satisfy itself that it would be in the bestinterests of the Society. While the Board is able to delegate powers, it does not havethe ability to delegate duties. It was therefore required to make a proper reasoneddecision as to whether the expulsion power should be invoked. The decision ofMr Braid and Mr Mayes was rubber-stamped by the Board without any independentconsideration of the merits.[168] I refer to the wording of the relevant rule, which states:MANAGEMENT:(43) The Governance of the business of the Society shall be vested in theBoard who in addition to the powers and authorities presents or otherwiseexpressly conferred upon it may exercise all such powers and do all such actsand things as may be exercised or done by the Society and are not required bythe rules or by any Statute to be exercised or done by the Society in generalmeeting, but subject nevertheless to the provisions of any Statute and to theRules of the Society in operation for the time being provided that the makingof any Rule shall not invalidate any prior act of the Board which would havebeen valid if such new rule or alteration or rescission had not been made.The Board may from time to time either generally or particularly delegate toany person any of the powers conferred on it by these Rules, including thepower of delegation conferred by this Rules.[169] I first observe that although the word "management" is the heading above therule, the rule itself refers to the "governance of the business of the Society" (ratherthan management).[170] Second, the power of delegation is expressed widely. It refers to the Boardhaving the ability to delegate "to any person any of the powers conferred on it by theseRules." One of the powers in the Rules is to make a decision that it is not in the bestinterests of the Society that a licensee shall remain a member of the Society.[171] It should not be overlooked that although it is open to Mr Bhullar to challengethe decision by way of an application for judicial review, what is being interpreted inthis case is a contract.[172] The submission on behalf of Mr Bhullar is contrary to the natural and ordinarymeaning of the words in the Rules.21 The Board has a power to strike off which cannotbe exercised unless the Board is satisfied in accordance with Rule 11(d). It is acondition of the exercise of a power that the Board be satisfied. When the power isdelegated, it is a condition of the exercise of the power by the delegate that the delegatebe satisfied. There is no separate duty on the Board to do what the rule specifies to bethe ground for the exercise of the power.[173] I am assisted in this conclusion by the judgment of Paterson J in Williams vAuckland Co-operative Taxi Society Ltd.22 That case involved allegations of bias onthe part of the committee which was to conduct a hearing under Rule 11. The Societysubmitted that under the doctrine of necessity, the committee of the Society wasentitled to proceed with the hearing because it was the body charged with themanagement of the Society's affairs.[174] Paterson J, in considering the doctrine of necessity, stated that it "operateswhere there is no other decision maker empowered to act and therefore no substitutionof a potentially biased decision maker is possible".23 The Judge then went on to saythat, "[i]n this case I have formed the view that the doctrine has no application becausethere is no restriction on the Committee's powers of delegation".24[175] It is clear from a reading of the judgment and of the relevant rule applying atthe time, that the Committee was the equivalent to the current Board. The judgment21 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].22 Williams v Auckland Co-operative Taxi Society Ltd HC Auckland M2176/98, 15 February 1999.23 At 11.24 At 12.sets out r 43 as it was worded at the time. I refer below to the relevant part of thejudgment, including the rule and the Judge's conclusion, as follows:25DelegationThe management of the business of the Society is vested in the Committee byr 43 of the Society's rules which states:MANAGEMENT:(43) THE management of the business of the Society shall be vestedin the Committee who in addition to the powers and authorities bythese presents or otherwise expressly conferred upon it may exerciseall such powers and do all such acts and things as may be exercised ordone by the Society and are not required by the Rules or by any Statuteto be exercised or done by the Society in general meeting, but subjectnevertheless to the provisions of any Statute and to the Rules of theSociety in operation for the time being provided that the making ofany Rule shall not invalidate any prior act of the Committee whichwould have been valid if such new Rule or alteration or rescission hadnot been made[.]The Committee may from time to time either generally orparticularly delegate to any person any of the powers conferredon it by these Rules, including the power of delegation conferred bythis Rule[.] (Emphasis added)If the words in the last paragraph of r 43 are given their natural and ordinarymeaning, the Committee may delegate a particular matter under any of thepowers conferred on it by the rules to any person. The review provision underr 11 is a power conferred on the Committee under the rules. Mrs Williams'[the applicant for judicial review alleging bias] position is a particularsituation under that rule. In my view, there is no restriction on the Committeedelegating its powers under r 11.[176] There is no suggestion by Paterson J that the Committee would then need toindependently consider the merits.[177] In any event, if the Board were to do so, the issue of apparent bias would againraise its head.[178] I therefore do not accept the submission on behalf of Mr Bhullar that the Board,having made its delegation to Mr Braid and Mr Mayes, was then required to make itsown independent consideration of the merits.25 At 12.Conclusion[179] The application for judicial review is dismissed.Application to vary order of Jagose J dated 4 May 2018[180] There is a final matter I need to address.[181] The Society filed an application dated 24 August 2018 seeking a variation ofthe order of Jagose J made on 4 May 2018 referred to in [26] above.[182] The variation seeks the imposition of a condition that pending further order ofthe Court, Mr Bhullar stay off the place known as Taxi House and that the Board bepermitted to conduct its affairs without the presence of Mr Bhullar.[183] By consent, the application to vary was adjourned to the same date as thehearing of the substantive application for judicial review.[184] At the conclusion of the hearing, by consent, I further adjourned the applicationto vary, to the date of my decision on the substantive application for review.[185] Having dismissed the application for review, the interim order (prohibiting theBoard from striking Mr Bhullar off its register of members) effectively falls away. Tothe extent that it is necessary, I formally discharge that order. The Board may nowproceed to strike Mr Bhullar off its register of members in accordance with thedecision made under Rule 11(d) of the Rules.[186] The underlying order having been discharged, there is nothing to vary. Theapplication for variation is therefore dismissed.Costs[187] I reserve the question of costs. My preliminary view is that the Society, as thesuccessful party, is entitled to costs which would be on a 2B basis. I encourage theparties to reach agreement on costs and to file a joint memorandum. Any such jointmemorandum should be filed within 30 days of the date of this judgment.[188] In the absence of agreement, the Society may file and serve its memorandumwithin five working days of the date for the joint memorandum. Mr Bhullar is to fileand serve his memorandum within a further five working days. Memoranda shouldnot exceed four pages.___________________________________Gordon J