THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INCORPORATED) v MORISA [2023] NZHC 3049

THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INCORPORATED) v MORISA [2023] NZHC3049 [31 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-1349[2023] NZHC 3049UNDER The Declaratory Judgments Act 1908 and theInherent Jurisdiction of the CourtBETWEEN THE SAMOAN ASSEMBLIES OF GOD INNEW ZEALAND (INCORPORATED)PlaintiffAND VENI MORISADefendantHearing: 12 October 2023Counsel: S J Mount KC and A Longdill for PlaintiffJ Barrow for DefendantO Woodroffe for ApplicantsJudgment: 31 October 2023JUDGMENT OF MUIR J[Re: Representation issues]This judgment was delivered by me on 31 October 2023 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Woodroffe Lawyers, AucklandTimaloa Law, ManukauIntroduction[1] The plaintiff (known to the parties as "the Fellowship") is an incorporatedsociety riven by dissent, to the extent that even a mediation before one of NewZealand's most experienced practitioners has been unable to resolve its members'differences.[2] The genesis of the dispute lies in the appointment of the defendant,Pastor Veni Morisa, as the plaintiff's Treasurer (and member of its Executive Council)at the annual meeting of the plaintiff's General Council on 16 April 2022. Somemembers of the Fellowship say that because Mr Morisa was apparently convicted ofa crime of dishonesty earlier in his life,1 he is disqualified from office. Others say thatthat is not the case and have obtained an opinion from leading counsel to that effect.From these seemingly small beginnings, litigation has proliferated, includingdefamation proceedings brought by Ms Woodroffe, who represents those opposingPastor Morisa's appointment.[3] This decision does not purport to resolve any of the underlying differencesbetween the parties. It is of very limited compass. It relates exclusively to the issueof whether this Court should, in its inherent jurisdiction, set aside a notice of changeof solicitor and discontinuance filed in respect of the present proceeding on2 February 2023.Background[4] The statement of claim in this proceeding was filed on 9 August 2022. Itidentified the incorporated society as plaintiff and Pastor Morisa as defendant. Thepleadings seek a declaration that the defendant's appointment as Treasurer of theplaintiff is void and a further declaration that he is not eligible to hold the position ofPastor, Executive Council member or Treasurer.[5] The proceeding was prepared by Ms Woodroffe. She continues to maintainthat she is the plaintiff's instructed counsel — thus, the somewhat unedifying spectacle1 The exact date is not stated but is said to be approximately 35 years ago.of two opposing counsel — Ms Woodroffe and Mr Mount KC2 — both nominallyappearing for the plaintiff in the context of the applications argued before me.[6] Ms Woodroffe says that she received authority to commence the proceedingfrom the General Superintendent of the plaintiff, himself a member of the plaintiff'sExecutive Council.[7] The office of General Superintendent is recognised in the constitution of theplaintiff. Clause 10(1)(i) provides that the General Superintendent is "[t]o representand generally oversee all the work and interests of the Fellowship in New Zealand andoverseas." Clause 10(1)(iv), in turn, identifies one of the General Superintendent'sduties as being "[t]o direct the work of the General Council office and act as chiefexecutive officer of the Fellowship in all legal matters and to sign on its behalf."[8] Mr Mount does not criticise Ms Woodroffe for commencing the proceeding,acknowledging either initial instruction from the General Superintendent or at least agood faith misunderstanding of that instruction. However, he says matters have movedon substantially from that point to the extent that both the Executive and GeneralCouncils of the plaintiff have overridden any authorisation by the GeneralSuperintendent, terminated Ms Woodroffe's instruction and in the case of theExecutive Council, has given a direction to discontinue the proceeding. He notes thateven the General Superintendent now supports discontinuance of the proceeding.[9] Specifically, Mr Mount refers to the following:(a) At no stage did the Executive Council pass a resolution giving approvalfor the proceeding to be filed. On receipt of the proceeding and afterdiscussion between Executive Council members, it became apparentthat a minority (led by the former Treasurer, Pastor Taula Young, andincluding the Deputy Superintendent, Pastor Maoiautele Na'amanu)supported the application for declarations but that the majority did not.Various informal meetings confirmed that position.2 Appearing with Ms Longdill.(b) On 13 October 2022, the Executive Council met, without invitations toPastors Na'amanu and Young, and passed resolutions seeking toterminate the services of Ms Woodroffe.(c) On 17 October 2022, Timaloa Law, acting on the majority of theExecutive Council's instruction, wrote to Ms Woodroffe advising thatnew solicitors and counsel had been instructed and seeking herconfirmation that she would no longer continue to act.(d) Ms Woodroffe declined to accede to that request and, on 31 October2022, filed a memorandum with the Court seeking formal proof againstPastor Morisa in the absence of a statement of defence from him.(e) On 4 November 2022, the High Court directed that the proceeding beset down for formal proof. A hearing date in February 2023 wassubsequently allocated.(f) On 3 December 2022, the Executive Council convened in response toa notice of meeting issued to all members. Eight of the twelve membersattended, satisfying relevant quorum requirements. Resolutions werepassed unanimously by those present, confirming instruction ofMs Timaloa as solicitor in respect of the present proceeding andMr Mount (with Ms Kelly and Ms Longdill) as counsel. The ExecutiveCouncil further resolved that Ms Timaloa be instructed to immediatelyfile a notice of change of representation and address for service inrespect of the proceeding and a notice of discontinuance. All motionsare recorded in the minutes as carrying a stated majority of "8/12". Thiswas in error. Only eight attended, with opposition of the other fourmembers simply assumed.3(g) Subsequent to the meeting, the resolutions were confirmed in adocument signed by the eight persons supporting them, each of whom3 Such assumption being apparently based on previous discussions indicating opposition from thefour persons concerned.was identified by reference to position or relevant presbytery. Anoriginal iteration of this document is said in evidence to haveincorrectly identified the date of the resolutions. A subsequentcorrected version was annexed in evidence.(h) On 27 January 2023, the Executive Council reconvened (on notice toall members) and passed the same resolutions again, with the relevantminutes correctly recording attendance by only eight members and theirunanimity. The purpose of this meeting was to address any proceduralirregularity arising out of the former minutes. The reconvened meetingis said to have been scheduled out of an "abundance of caution".(i) On 2 February 2023, Timaloa Law filed a notice of change ofrepresentation and a notice of discontinuance of the proceeding.[10] I record, for completeness, that on 22 November 2022, a proceeding was filedunder CIV-2022-404-2225 (the 2225 proceeding) by Pastors Na'amanu and Youngagainst Pastor Morisa and others seeking, inter alia, a declaration that Pastor Morisa'sappointment as Treasurer is null and void, that he be removed from his position as apastor and that he be declared ineligible to continue to pursue the role of Treasurer.[11] On 8 December 2022, Harvey J adjourned the application for interim relief inrespect of the 2225 proceeding and directed that the Fellowship be added as adefendant.4 The Judge further directed that the parties engage in mediation,5 whichsubsequently occurred before the Hon Rodney Hansen KC over two days. This was,as already indicated, unsuccessful.[12] It is apparent that the same issue sought to be ventilated in the presentproceeding — the validity of Pastor Morisa's appointment as Treasurer — is alsoengaged in the 2225 proceeding.4 Na'amanu v Morisa [2022] NZHC 3291 at [41]–[42].5 At [43].[13] For further completeness, I record that, on 12 August 2023, following theunsuccessful mediation, the plaintiff's General Council convened and confirmed byresolution (204 votes in favour, four votes against) that Ms Timaloa, together withcounsel Mr Mount and Ms Longdill, "act on behalf of the Fellowship". At the sameGeneral Council meeting, Pastors Young, Na'amanu, Taloaina and Auvele, wereremoved from the Executive Council for various identified reasons. The vote in thisrespect was 197 in favour and nine against, with two votes "discarded".The applications before the Court[14] In response to the notice of change of solicitor and discontinuance, on22 February 2023, Ms Woodroffe filed a document entitled "Notice of Opposition tothe Notice of Discontinuance and an Application to Decline a Notice of Change ofRepresentation and Address for Service of the Plaintiff". Although the documentincluded the word "Application" and a filing fee was charged, it was not a compliantinterlocutory application in that it did not specify the relief sought or the grounds onwhich it was being made. It would thus not have been possible for a party to file aRules compliant notice of opposition to this purported document.[15] Nevertheless, in its terms the "Application" sought to rely "on the inherentjurisdiction of the Court to give directions" and Mr Mount accepts that this Courtretains such a jurisdiction to set aside a notice of change of solicitor and/ordiscontinuance in an appropriate case. With his agreement, I intend to deal with thematter before me as if an application had been made in these terms. That will allowme to engage with the substance of what is being argued.A point seldom considered[16] There is a paucity of authority addressing the circumstances in which the Courtmight invoke the inherent jurisdiction referred to. Mr Mount says that his researcheshave uncovered one case only in which the matter appears to have been considered:Butterworth v Clapham.6 This case is more than two hundred years old. No report6 Butterworth v Clapham (1820) 1 Jac & W 673 (Ch).can be found. However, it is referred to by way of note in the decision ofMole v Smith.7 The note records:8 two counsel appeared upon a petition, for the same parties, one instructedto consent, and the other instructed by a different solicitor to oppose it, excepton certain terms. The Master of the Roles directed the petition to stand over,and the authorities under which the solicitors acted to be verified by affidavit;and an affidavit was afterwards made by the parties, stating their consent tothe petition and that they had authorised the first solicitor to act for them, uponwhich the order was made.[17] The focus of the enquiry in Butterworth was on who was in fact currentlyinstructed for the relevant party. The focus of the Court's enquiry in this case isdifferent given that the matter in issue is the validity of the notices filed on 2 February2023 by Timaloa Law. If Timaloa Law was validly instructed to file those notices atthat time, then I accept Mr Mount's submission that they are effective. Mr Mountfurther submits that even if the Fellowship subsequently changed its mind (which hasnot occurred), it would not be a basis to set aside the notices. I tend to agree, albeitthat is not an issue requiring my decision.Ms Woodroffe's argument[18] Ms Woodroffe's written submissions traverse in considerable detail the eventswhich took place prior to the meeting of the Executive Council on 3 December 2022.There is an element of defensiveness about this aspect of the submissions —attempting as they do to justify her decision to not withdraw as counsel for the plaintiffwhen requested to do so in September and October 2022.[19] I am not asked to express my view about what happened in this period. I simplynote that Ms Woodroffe's impassioned plea that the notice of change of solicitor anddiscontinuance should be set aside despite separate proceedings in which the sameissues are engaged and in respect of which her role cannot be impeached, appears toreflect this defensiveness. These issues are, however, largely irrelevant to the centralissue I must decide.7 Mole v Smith (1820) 1 Jac & W 665 (Ch).8 At 673.[20] I see that issue as being to whether there is any proper basis to impeach theapparent resolutions of the Executive Council in both December 2022 andJanuary 2023 confirming appointment of Timaloa Law, Mr Mount and junior counselin respect of the present proceeding and directing that a discontinuance be filed. Inthe course of oral argument, I requested that Ms Woodroffe focus particularly on thatissue, mindful also of the General Council's subsequent resolution.[21] Ms Woodroffe's arguments in this respect can be summarised as follows:(a) The Executive Council acted under a form of duress in that it waspresented with resolutions likely crafted by lawyers and in English andits collective will was overborne by those promoting them.(b) The proceeding was commenced with the authority of the GeneralSuperintendent whose agency is recognised in the constitution and itwas not open for the General Council to pass the resolutions it did.(c) The resolutions passed at both meetings of the Executive Council wereinvalid because, in the notices convening the meetings, the proposedresolutions were not expressly identified.(d) The resolutions themselves are unclear. It is improper that otherresolutions were passed at both meetings but not identified in annexuresto the discontinuance, and that the relevant minutes do not record thatthe motions that representation be changed and that the proceeding bediscontinued were "moved and passed by the same people".[22] Finally, Ms Woodroffe emphasises that it would be inappropriate to lose sightof the underlying issue, being the propriety of Pastor Morisa's appointment. Shesubmits that the manner of that appointment significantly offends a portion of thecongregation who are rightly concerned about the elevation to a position of financialresponsibility of someone with a purported history of dishonesty. She forcefullysubmits that this Court should intervene on behalf of those who take objection to thisprocess.Discussion[23] There is no evidential basis before me to conclude that any one or more ofthose members of the Executive Council who voted in favour of relevant resolutionsat either meeting were acting under any form of duress or without proper appreciationof what they were doing. Pastor Fa'amanu Peniata, the General Secretary of theExecutive Council, gives evidence on the plaintiff's behalf. He confirms:(a) Notification of both Executive Council meetings to all members of theCouncil.(b) Unanimous support for the resolutions by those attending.(c) Confirmation that at a special session of the General Council on12 August 2023 at which relevant quorum requirements were satisfied,the General Council passed resolutions confirming new legalrepresentation.[24] I note that the resolution of 3 December 2022 was, in turn, confirmed underthe signature of the eight Executive Council members who supported the resolutions.As indicated, these included the General Superintendent on whose instructionMs Woodroffe says the proceeding was initiated. None of these eight people deposeto having had their will in any way overborne or to any inadequacy of comprehensionabout what they were voting for. I am unable, therefore, to accept Ms Woodroffe'sargument in this respect.[25] I reject also her argument based on the agency of the General Superintendent.His role in relation to "legal matters" is recognised in the plaintiff's constitution.However, on usual agency principles, any instruction must be subject to the overridingdirection of the plaintiff or its Executive Council which, by cl 5(1) of the constitution,is empowered "to exercise all the powers of the General Council". It has given suchdirection. The General Superintended himself was a party to the subsequentresolutions. He must be presumed to have changed his mind or to have accepted thatfuture conduct of the proceeding occur in accordance with the unanimous wish ofthose attending the Executive Council. I note that even without his vote, such amajority would have existed.[26] Ms Woodroffe's third point — that there were inadequacies in notification ofthe two meetings — has greater potential, but I ultimately reject it also as a basis forsuggesting that the notice of change of solicitor and/or discontinuance be set aside.[27] In the case of both Executive Council meetings, no specific agenda waspublished. Notification of the 3 December 2022 meeting (translated from the originalSamoan by Pastor Peniata in his affidavit) was in the following terms:Warm greetings to our Executive Council, I understand that this message maybe well into the evening however I pray this message finds you well. Ourlegal team Simon Mount has suggested that we find a time to meet and discusskey resolutions in detail for the future of our Fellowship and to reach the saidquorum as stated in our constitution for resolutions to be passed. I am humblyrequesting your attendance for this important meeting scheduled for Saturday3 December 2022 at 10 am; for members of our Council who reside inAuckland, we will meet in person at Jerome's Conference Room, for ourCouncil members outside of Auckland, a link will be sent out soon so that youmay join via zoom and meet us virtually for these urgent matters to beresolved. I believe that we all share the same best interests of the Fellowshipand that we will be able to meet this Saturday in person or virtually.[28] In respect of the January 2023 meeting, the notice was in terms:Warm greetings on this day, the 24th day of the New Year 2023. We continueto praise God for His faithfulness during last year and till this day. Althoughwe traversed some difficult seasons in our Fellowship, the rough seas andstrong winds tried to distract us during our voyage, however Jesus continuesto find rest even in the midst of the storm. This encourages us greatly to keepnavigating through these unchartered waters of the Church. God is worthy tobe praised.The purpose of this email is to advise our Executive Council of an urgentmeeting requested by our Superintendent on Friday 27 January 2023 on zoom.The reason for this urgent meeting is to resolve certain issues within theExecutive Council and discuss plans of moving forward so that our scheduledExecutive meeting on Wednesday 8 February 2023 will focus solely on whatwe need to do to move forward as a national church and plan/prepare forGeneral Council 2023 in April.It is imperative that we all attend this meeting with our Superintendent,however if you choose to refrain or boycott these meetings, it will not affectthe discussions and resolutions being passed if the quorum is met.If you reside in Auckland, please join us in person on 13 Ronwood Avenue,Manukau. For the rest of our Council members outside of Auckland, a zoomlink will be sent out following this email.I hope to see you all there.[29] I have considered these notifications in the context of the material whichpredated them, in particular, the notification on 17 October 2022 by Timaloa Law toMs Woodroffe advising that new solicitors had been instructed and that she"immediately stop purporting to act on [the Fellowship's] behalf on this matter";Ms Woodroffe's refusal to act on that advice; and Ms Woodroffe's application on31 October 2022 to seek formal proof.[30] There can have been no real doubt that the meeting convened in earlyDecember was for the purposes of addressing these evolving concerns. Thenotification refers to the necessity for "resolutions". It identifies by name Mr Mount,who would have been understood by all Executive Council members as thereplacement legal counsel, and his stated suggestion to consider issues relevant to the"future of our Fellowship". It is tolerably clear that those not supporting thesubstitution of Timaloa Law for Ms Woodroffe knew that the meeting was beingconvened to address the dispute relating to Pastor Morisa's eligibility and the resultantproceedings, and that it is for this reason they did not attend. There is no evidencefrom any one of the four Executive Council members who chose not to attend thatthey were not aware of why the Executive Council meeting was being convened, whatmatters it was likely to discuss and what resolutions might emerge from it. There areno formal notification requirements in respect of Executive Council meetings.9[31] Notification of the January 2023 meeting was likewise opaque in terms of thematters to be discussed. However, the meeting was described as "urgent" and I acceptit was always open to any member to interrogate the General Secretary as to thepurpose of the meeting and its importance. Again, it is tolerably clear that all of theExecutive Council members would have been aware that the meeting related to issuesconcerning representation in the current proceeding and whether the proceeding9 Unlike the position of the General Council, where cl 4(4)(iv) of the constitution provides that anotice is to be given no later than four months before the date for the session with an agendapresented and distributed at least one month prior. In respect of Executive Council meetings,cl 5(8) of the constitution simply provides for them to be "convened by the General Secretary".should continue. By this stage, hearing of the application for formal proof wasimminent. It was also clear that the meeting was being convened for purposes otherthan the general business of the Executive Council, which was identified as a matterto be discussed at a subsequent meeting on 8 February 2023. Again, no member ofthe Executive Council deposes that they were ignorant of the purpose of the meetingor were in any way prejudiced by the nature of the notification.[32] In any event, I must, in the context of an application which seeks to set aside anotice of change of representation and discontinuance, look at the matter realisticallyhaving regard to the wider context. There is nothing in the evidence to suggest that,were either notice to be set aside and the Executive Council required to vote again onthe issue, any different result would be produced. That conclusion is fortified by theresolution of the General Council on 12 August 2023 that the four dissenting voicesbe removed from the Executive Council and confirming the plaintiff's currentrepresentation by solicitors and counsel other than Ms Woodroffe.[33] For these reasons, although I consider it would have been preferable ifnotification of both the December 2022 and January 2023 Executive Council meetingshad included the text of proposed resolutions, I do not consider the resolutionsthemselves vitiated by this omission. When asked to exercise its power to set aside anotice of change of solicitor or notice of discontinuance, I consider the appropriatecourse is to look substantively at whether Ms Woodroffe retained the authority of theplaintiff to continue and whether substantively the plaintiff wished the proceeding toadvance. In both respects, that enquiry must be answered in the negative.[34] As I have indicated, this is not to say that the underlying issue about theappropriateness of Pastor Morisa's appointment as Treasurer cannot be otherwiseaddressed. The issue is squarely raised in the 2225 proceeding.10[35] As to Ms Woodroffe's subsidiary arguments, I similarly find theseunpersuasive. I regard the resolutions as clear on their face and there was no10 I do not, in saying this, address the merits of the 2225 proceeding or the standing of the plaintiffsin that case. The argument before me progressed on the basis that the appropriateness ofPastor Morisa's appointment could and should be addressed in that context.requirement that the resolution relating to legal representation and that relating todiscontinuance be moved by the same person. In each case the resolutions werecarried unanimously by those present (in turn, satisfying quorum requirements).[36] Nor was there any requirement to provide the text of all the resolutions thatwere carried at either or both meetings as annexures to the notice of discontinuance.Indeed, there was no requirement that any of the resolutions be so annexed. I note thatthe other resolutions related to a request that Ms Woodroffe return any funds held onbehalf of the plaintiff, representation in respect of the 2225 proceeding and acommitment to attempt to resolve the underlying dispute "in accordance withChristian values". None of these resolutions are germane for present purposes.Result[37] For the foregoing reasons, I decline the application to set aside the notice ofchange of solicitor and notice of discontinuance filed on 2 February 2023.Costs[38] Pastor Morisa was represented at the hearing, although his counsel, Ms Barrow,did not participate, other than to endorse the submissions of Mr Mount.[39] Ms Barrow did, however, ask that in the event the applications were declined,I reserve an opportunity for her client to seek costs. Provisionally, I am not persuadedthat a costs award would be appropriate given that Pastor Morisa's role was peripheralto the central issue — representation of the plaintiff and its intentions in respect of theproceeding. Nevertheless, if he chooses to advance his claim for costs, that can beaddressed in due course.[40] The plaintiff has likewise not yet addressed me on costs, either as to quantumor incidence. It may consider that a costs application is not conducive to the widerinterests of reconciliation. Again, however, memoranda may be filed if costs aresought.[41] The following timetable is to apply:(a) Any memoranda in support of applications for costs to be filed by14 November 2023.(b) Any memorandum in opposition to be filed by 28 November 2023.(c) Any memoranda in reply to be filed by 12 December 2023.[42] All memoranda are to be a maximum of five pages plus any relevant schedulessetting out calculations._________________________Muir J