A
trustee of the Kohanga Reo Trust dismissed after going public with allegations
made by an outsider of wrongdoing by fellow trustees failed to get an interim
injunction blocking his dismissal. He is
left to pursue a full court hearing to prove these allegations.
Kohanga Reo Trust hit the
headlines in late 2013 with complaints that Lynda Tawhiwhirangi, chief
executive of the Trust’s commercial operations, had misappropriated more than
$10,000 through misuse of her corporate credit card. Steps for her dismissal followed.
Mr Waho, a trustee of Kohanga
Reo, became concerned about what he considered inappropriate behaviour by
fellow trustees in negotiations over Mrs Tawhiwhirangi’s departure. Her mother-in-law, Dame Iritina
Tawhiwhirangi, was also a trustee of Kohanga Reo. The court was told Lynda Tawhiwhirangi
demanded a severance payment of $400,000 as the price for her departure. When this was refused, her husband (Dame
Iritina’s son) produced an eight page document alleging financial improprieties
by trustees of the Kohanga Reo Trust and by a number of its employees. Some of these allegations amounted to potential
evidence of criminal conduct. Mr Waho
alleged Mr Tawhiwhirangi then upped the stakes: blackmailing the board of
trustees by demanding a payment of $800,000 to stay quiet; threatening to go to
the media otherwise.
Mr Waho became concerned that
the Kohanga Reo board of trustees was considering doing a deal with the
Tawhiwhirangi family. In March 2014 he
wrote a lengthy letter to his fellow trustees setting out four steps he
considered necessary: a board inquiry into Mr Tawhiwhirangi’s allegations; a
stop to negotiations over any payments; a report on steps taken to recover
funds misappropriated by Lynda Tawhiwhirangi; and immediate steps to inform the
police, the Serious Fraud Office and government of what was happening. Mr Waho concluded his letter by stating that
he would personally report his misgivings to “the proper authorities” unless
the board of trustees agreed to implement his requests. He forwarded a copy of this letter to
government ministers after what he perceived as a failure by fellow trustees to
immediately address the issues raised.
Eight months later, fellow trustees voted to remove him as trustee on grounds
he had brought the Trust into disrepute.
They said Mr Waho had pre-empted both any Board decision and any
effective response to the allegations raised when he contacted government
ministers directly, knowing that a Board meeting had been scheduled to review
the allegations.
Prior to the vote, Mr Waho
filed in the High Court for an interim injunction to block steps to remove him,
claiming he was being unlawfully excluded from trust business. An injunction was refused.
An interim injunction is
available where the applicant has a strong case and it is vital that the status
quo be maintained. On appeal to the
Court of Appeal, a majority of the judges took the view that Mr Waho had a
seriously arguable case that he should remain on the Board. Mr Waho presented himself as a principled
whistle-blower concerned to protect the Trust.
By contrast, other board members considered Mr Waho had impugned and discredited
them without justification.
The appeal court ruled there
was no need to preserve the status quo.
Removal from the Board did not endanger Mr Waho’s personal interests or
place him at any personal disadvantage, it said. He was able to pursue separately the
allegations of wrongdoing by fellow trustees free of the collective
responsibility for Board decisions which otherwise governs all board members.
Waho
v. Olsen-Ratana – Court of Appeal (15.12.14)
15.003