Frewer v Canterbury Radio Control Car Club Incorporated

• Jurisdiction: New Zealand
• Judge: Dunningham J
• Judgment Date: 07 July 2022
• Neutral Citation: [2022] NZHC 1604
• Court: High Court
• Docket Number: CIV-2021-409-268

Between

Kevin Percival Frewer

Applicant

and

Canterbury Radio Control Car Club Incorporated

Respondent

[2022] NZHC 1604

Dunningham J

CIV-2021-409-268

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA

ŌTAUTAHI ROHE

Judicial Review — application to for judicial review of a decision of the respondent — dispute concerning use of rubber or foam tyres on radio controlled racing cars — amenability of a decision of an incorporated society to judicial review — whether matter had a sufficiently public aspect — illegality — unfairness or procedural impropriety — Incorporated Societies Act 1908 — Judicial Review Procedure Act 2016

Appearances:

M J Borcoski and L G Wells for Applicant

P A Cowey and D L Bell for Respondent

The application for judicial review was dismissed.

JUDGMENT OF Dunningham J

This judgment was delivered by me on 7 July 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Introduction

1 Mr Frewer is a dedicated radio control car racing enthusiast. He was one of the founders of the Canterbury Radio Control Car Club (the Club) in 1975. He was also involved in the campaign to fund and build the first New Zealand track for radio control car racing at Ruapuna Park.

2 There are a number of classes of model cars that race at the Club, but Mr Frewer's particular interest is in the 1/8th scale GT class (1/8 GT) which was developed in late 2018. This class uses a 1/8th scale buggy chassis that is lowered to suit tarmac racing rather than off-road situations, and has “slick tyres and a saloon style body shell”.

3 Mr Frewer explains that normal 1/8th scale cars use foam tyres for racing as they are faster. However, 1/8 GT cars use rubber tyres for ease of use by newcomers. Indeed, two international bodies made rules to allow rubber tyres only for this class. 1

4 However, Mr Frewer noted that the life expectancy of rubber tyres started to deteriorate as a result of competition in the market which led to cheaper, but less durable tyres, being available. Because of this, he began investigating the use of foam tyres instead, saying he still had stocks of foam from when he used to sell foam tyres years ago for other classes of model cars. He considered if he could prove the advantages of foam tyres, then the rules preventing their use could be changed in the interests of racers. In his view, foam tyres would be cheaper and could be used anywhere, unlike rubber tyres where the driver has to experiment to find a suitable tyre for each particular track.

5 From 2019 he became an advocate for foam tyres, publishing information about it on a Facebook page dedicated to this issue. However, at every step, he feels the Club has thwarted him, culminating in a decision to ban the use of foam tyres in the 1/8 GT race class at its 2019 AGM (the tyre decision).

6 Mr Frewer applies for judicial review of the tyre decision seeking a declaration that it is invalid and an order quashing it or setting it aside.

7 The parties are agreed that the issues on appeal are:

• (a) whether the tyre decision is amenable to judicial review;

• (b) if it is, whether the grounds for judicial review of the tyre decision are made out; and

• (c) if a ground is made out, whether the Court should exercise its discretion to grant the relief sought.

Background

8 Before considering these issues it is necessary to set out the events which led to the tyre decision and also some subsequent events which Mr Frewer says are relevant to its validity.

9 In 1989 the Club was incorporated under the Incorporated Societies Act 1908 (the Act) and adopted a set of rules (the Rules) as required by the Act. These govern what might be described as the constitutional arrangements for the Club. The Rules state the objective of the Club is “the promotion of and participation in the sport of radio control model car racing”. 2 The Rules set out the categories of Club membership and the voting rights that attach to such membership. They also cover the circumstances in which membership will cease, the circumstances in which the Rules can be changed, the requirements for holding a general meeting, and how voting will be conducted.

10 The 1/8 GT racing class was introduced in 2018 and, in early 2019, Mr Frewer trialled his foam tyres at three club meetings. He also created a Facebook page dedicated to foam tyres entitled “Foam tyres for 1/8th GT”. At the time, the New Zealand Radio Car Association (NZRCA) had a rule which banned foam tyres

for the 1/8 GT class. In April 2019 Mr Frewer says he was told by the Club's president that he had to use rubber tyres, not foam tyres

The tyre decision

11 The Club held an annual general meeting (AGM) on 7 September 2019. Mr Frewer says that notice of the meeting was not given in accordance with the Rules. Instead, the 2019 AGM was notified via an event invitation posted on the Club's Facebook page. The Facebook notification did not include an agenda nor mention anything about a vote to ban foam tyres. Mr Frewer says, because he was not aware that a ban would be voted on, he did not attend the 2019 AGM. However, Mr Frewer accepts he was aware of the AGM.

12 The Club's statement of defence says the motion to ban foam tyres from the 1/8 GT class was presented from the floor during the 2019 AGM. The Club treasurer, Mr Soper, says it “was voted on … by our Club's drivers in that particular class. It passed and the rule was implemented immediately.” Of 15 votes, 12 voted for the motion, while three were against it. It seems Mr Soper is correct to say that only those members who raced in the 1/8 GT class voted because, on another vote at the same AGM, there were 24 votes recorded.

13 However, soon afterwards, the NZRCA voted to remove the ban on foam tyres in the 1/8 GT class, with about a 70 per cent margin supporting the removal. Mr Frewer thought that would put an end to any issues as to him racing with foam tyres at the Club. However, at a Club meeting on 13 October 2019 when there were six GT class drivers present on the side of the track, Mr Soper asked the drivers to vote on whether they wanted Mr Frewer to race with them using his foam tyres. Virtually all of them voted against that happening. It seems there may, by then, have been some aversion to Mr Frewer's ardent promotion of foam tyres. Mr Frewer acknowledges that one influential driver had said to other drivers “if it goes to foam, I'm giving up”. Mr Frewer also began receiving comments on his Facebook page saying things like he was “ramming it down people's throats”.

14 Mr Frewer says the Club then proceeded as if he was banned from racing with foam tyres. When it came time to renew Club memberships in September 2020, he received an email from the Club's treasurer, saying the committee had had a meeting to approve memberships and Mr Frewer was sent a letter with conditions to sign if he wanted his membership to continue. These included conditions requiring him to keep comments about the Club separate from his advocacy for foam tyres and, while he was free to continue with his development of foam tyres using the Club's track after race meetings or at approved times, when racing at Club meetings he was to comply with the Club rules, including using rubber tyres only on the 1/8 GT class.

15 Mr Frewer says he signed this document agreeing to the conditions as he believed that otherwise he could not be a member of the Club at all. However, he pursued the Club on the issue of why he could not race with foam tyres. In response, the Club committee sent a letter to Mr Frewer on 11 November 2020 saying it was a “drivers' preference” for many reasons. These included that the drivers “like the format of running rubber with the similar approach to Super cars with the warmup and the challenge of setup”. The letter also said the stance on rubber tyres only was “in the rules when the class was started and was the attraction to running the class”. The letter emphasised that Mr Frewer could continue to test his foam tyres outside the Club 1/8 GT class race events. Mr Frewer says it was from this letter that he realised a change had been made to the rules.

16 He engaged lawyers who wrote to the Club in late December seeking a reversal of the tyre decision. They claimed that the Club's decision was amenable to judicial review on a number of grounds and said Mr Frewer “reserves his right to take further legal action” if the Club continued to ban him from racing with foam tyres.

17 The Club responded on 11 January 2021 saying it had “the right to ban drivers when they fail to align with our Club[‘s] rules and any agreements in place”. It said Mr Frewer “has been invited and given the opportunity to come and put forward his case to run foams at the last two AGM's of which he has declined for reasons known only to him”. The letter then recorded concerns about Mr Frewer's behaviour saying he had “intimidated several Club members” and the Committee had received five letters of complaint about Mr Frewer's behaviour at the last Club meeting in December 2020. The letter went on to say that, in any event, the NZRCA rule only permitted the use of “production” tyres which are commercially available, and Mr Frewer's foam tyres did not meet that definition. The letter concluded by saying that Mr Frewer's membership was revoked immediately because of:

• - his behaviour which does not conform with our Clubs [sic] rules

• - and the concern of the affected members.

18 Further correspondence ensued, but no progress was made. Eventually, in mid-2021, Mr Frewer issued these proceedings challenging:

• (a) the tyre decision (which he referred to as the “Banning Decision”);

• (b) the decision to revoke his membership application if he did not agree to the conditions in the letter from the Club committee on 23 September 2020; and

• (c) the decision to...