Protecting the Destiny of a Society

I have previously written of the need for members of a society to exercise vigilance if they are to protect or control the destiny of their society (see for instance, “Trouble at the Courts – anyone for tennis?”).  The ease by which the balance of democratic power can be tipped is illustrated by the facts of a recent High Court decision, in this case involving the formation of new branches of a “federated” society (the Māori Women’s Welfare League).  Many societies struggle to attract new members, so increasing the membership by a third would normally be a cause for rejoicing.  As illustrated by the following text from the judgment in Tamaki v The Māori Women’s Welfare League Incorporated, CIV-2011-485-001319, High Court, Wellington, 21 July 2011, Kos J, that is not necessarily so:

The sudden addition of over 900 new members in one fell swoop was a singular event for the League. Its membership has lain within the range 2500 to 3000 throughout the last 10 years.

… the evidence regarding the formation of the new branches gives me considerable disquiet regarding their legitimacy. I summarise my concerns as follows:

(a)   All branches were formed on the same day, 4 June 2011.

(b)   The inaugural meetings were held at the same location, … the Auckland headquarters of the Destiny Church.

(c)   That date and location coincided with the annual conference of The Destiny Church. In other words, the meetings were held within the aegis of The Destiny Church’s annual meeting, rather than of the League.

(d)   The meetings, all 10 of them, were held at precisely the same time. And according to the minutes produced, they all ended at exactly 4.13pm. The inevitable inference is that there was not … a series of meetings, but a single meeting.

(e)   Who attended the meeting (or meetings) is entirely unclear on the evidence. The minutes (which are essentially identical across all 10 new branches) state that a list of attendees is attached. But none are.

(f)   In each case the minimum number of new members, five, were enrolled. It is unclear whether they were members new to the League entirely, or extant members of another branch.

(g)   Mrs Tamaki has exhibited … forms completed for each of the five new financial members. They make interesting reading. So far, that is, as there is anything to read at all. Details on the form for personal information (date and place of birth, age, address, phone number and contact details) are in almost all cases left completely blank. In most cases all that is completed is the person’s name. And that in the same handwriting. For reasons not immediately apparent, the form includes an entry for “church”. Where that has been completed by a new member, it is without exception a Destiny Church that has been entered. And the form itself is printed on Te Oranga Ake stationery.

(h)   In the case of every new member, the same nominors, Mrs Tamaki and Ms Benoni are said to have nominated them.

(i)   Turning then to the election of officers of the new branches, the officers were in each case nominated by Mrs Tamaki and a Ms Turuwhenua. Yet neither woman was actually a member of any of the new branches.

(j)   The minutes provide for attendances by the Regional President, Vice-President, Secretary and Treasurer. They did not attend, but are listed as “to be elected”. Two points can be made. First, such office holders already existed under Article 4(5) of the constitution. They did not need to be elected. Secondly, it is not evident that these officers had actually been invited to attend. There is a rather vague statement in Ms Bhana’s evidence that she invited people at a strategic hui in her region to attend. It is not clear that she explained to them what she had in mind doing. It is doubtful that if she had, they would have been absent.

(k)   In the case of each of the 10 branches, identical form letters were then sent to the League enclosing a list of members. Eight of the 10 letters are dated 10 June 2011. Two are 13 June 2011.

(l)   There is no evidence before me that any of the other 80-odd listed members of each new branch – indeed any of the members including the five establishing members – have actually consented to membership of the League. A small minority of establishing members appear to have completed the forms referred to earlier. Most have not. Absent better evidence, I am not prepared to infer consent. All supposed members are the apparent recipients of a receipt for payment of the $10 subscription. Subscriptions in respect of all of the 921 new members have been paid to the League. But the payments were all made by inter-bank transfer by Te Oranga Ake.

(m)   As I have already noted, the number of members subscribed in each case is between 91 and 93. It would be very surprising, if the purpose of branch formation was not simply to secure the maximum 10 votes per branch, that the numbers signing on would come down thus.

(n)   Many of the branches appear to have been drawn substantially from members outside the regional boundary of Tamaki Makaurau – although all new branches were presented for affiliation within that region. Unsurprisingly the branch Nga Wahine O Taranaki seems comprised principally of Taranaki-based members. A very significant number of members of the Aroha Ki Te Tangata branch come from Northland. By an unexplained statistical freak its members’ surnames all fall within the letter range G-Z (except for five). Members of the Owairaka branch mostly come from Auckland, but all except four members are drawn from people whose surnames fall in the letter range L-W. The members of the Rangitoto branch appear to come mostly from Hamilton. Those from the Nga Whetu branch, mostly from Australia. Those from Kia Whakatu Nga Wahine, mostly from Nelson. Finally, those from Nga Wahine Whakapono do come from Auckland, but through another statistical aberration their surnames all fall within the letter range H-W.

No comment from me is required to explain the way in which an attempt was made to subvert the normal democratic processes of a society (the League) as the facts speak for themselves.  The judgment’s conclusions were clear:

[70] I find the manner in which the new branches have been established completely contrary to the practices and tikanga of the League.  The constitution requires that branches be formed in accordance with the constitution “and the rules of the League.”  …

[71] In these circumstances I am not prepared to find that Mrs Tamaki has established on the balance of probabilities that the new branches have been legitimately established as member bodies of the League.  Establishment of branches in this fashion is not in my view consistent with the constitutional privilege of participation in the League.  Nor is it consistent with the tikanga of the League for branches to be constituted in this way (1) in virtual disregard of geographical connection with the relevant region, (2) adding in one fell swoop a new group of members in size equal to a third the existing membership, and (3) so structured as to maximise the number of votes potentially available to the moving nominor, who also happens to be a candidate for the League presidency.

On grounds not related to the issues described above, Mrs Tamaki was successful in having her name restored to the ballot for the role of President of the Māori Women’s Welfare League, but was not ultimately elected to that position.  The elements of the judgment relating to her restoration to the ballot warrant further discussion, which will appear in a later article.

This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.