Al Hidayah Mosque Inc v Islamic Association of Wanneroo (Inc)
[2008] WASCA 206
•9 OCTOBER 2008
AL HIDAYAH MOSQUE INC -v- ISLAMIC ASSOCIATION OF WANNEROO (INC) [2008] WASCA 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 206 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:30/2008 | 21 AUGUST 2008 | |
| Coram: | PULLIN JA NEWNES AJA | 9/10/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AL HIDAYAH MOSQUE INC ISLAMIC ASSOCIATION OF WANNEROO (INC) |
Catchwords: | Appeal Application for interlocutory injunction Turns on own facts |
Legislation: | Nil |
Case References: | Australian Broadcasting Commission v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AL HIDAYAH MOSQUE INC -v- ISLAMIC ASSOCIATION OF WANNEROO (INC) [2008] WASCA 206 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
ISLAMIC ASSOCIATION OF WANNEROO (INC)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTIN CJ
Citation : ISLAMIC ASSOCIATION OF WANNEROO (INC) -v- AL-HIDAYAH MOSQUE (INC) [2008] WASC 47
File No : CIV 1788 of 2005
Catchwords:
Appeal - Application for interlocutory injunction - Turns on own facts
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Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R K O'Connor QC
Respondent : Mr P N Bevilacqua
Solicitors:
Appellant : Eapon Carlose
Respondent : James Chong Lawyers
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
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1 PULLIN JA: This is an appeal against an order dismissing the appellant's application for an interlocutory injunction. The case concerns a rift between two groups of Muslim community members who pray at a mosque at 64 Walter Padbury Boulevard, Padbury.
2 The respondent commenced an action in the Supreme Court in 2005. In the statement of claim the respondent pleads that it is the registered proprietor of the land on which the mosque stands. It pleads that since 2001, without the consent of the respondent, the appellant has 'wrongfully occupied and used' the land by using and occupying 'the office room in the mosque and the mosque itself'. The statement of claim further pleads that the appellant has erected or caused to be erected, a shed on the land and that by notice dated 7 January 2005, the respondent advised the appellant that its use and occupation of the mosque was unauthorised, had never been the subject of any agreement between the parties and demanded that the appellant cease to occupy the mosque altogether and to vacate it within 21 days. The statement of claim concludes by pleading that the appellant threatened, unless restrained by the court, to repeat the acts complained of and that the respondent had suffered loss and damage. The respondent claims an injunction to restrain the appellant from entering or occupying the land, and damages.
3 The defence admits that the respondent was the registered proprietor of the land. It pleads that the registration was 'as trustee of a Crown grant in trust' and was subject to certain conditions including that the land was to be used exclusively for the purposes of building a mosque. The respondent admits this in its reply. The defence pleads that 'members of the Muslim community held a meeting in 1998 and, at the meeting, elected members of the Hepburn Heights Mosque Building Committee' and that participants at the meeting included some senior members of the respondent and some of the appellant's members. The appellant pleads that this 'committee' was formed to raise funds to pay fees and meet the costs of construction of the mosque. The defence contains an admission by the appellant that its members have at times occupied the office room in the mosque and the mosque itself, but added in its defence that 'in April 2002, at a meeting attended by members of the community and other Muslims, including the [respondent's] members, the [appellant's] members were elected, and the [appellant] formed, for the sole purpose of managing and running the mosque'. The appellant also admitted in the defence that it caused to be erected a shed on the land; that the respondent was aware of this and 'did not raise any objection whatsoever to the erection or said use of the shed'. Finally, in the defence there is a plea that it would be unjust and unconscionable to prevent the appellant's members from
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- entering and occupying the land and the mosque, this being based upon the appellant's members (not the appellant itself) acting in reliance and in the 'belief, assumption and expectation that they, as Muslims, would be allowed and/or entitled, indefinitely, to enter the land and the mosque without any hindrance, impediment or obstruction'.
4 On 8 January 2008, the appellant filed an application for an interlocutory injunction in terms which, if granted, would have prevented the respondent from managing the mosque or entering the office in the mosque and would in effect, have given possession of the mosque to the appellant. The order would, in effect, have given possession of the mosque to the appellant, because to 'replace' the locks as the order seeks, would be to remove locks installed by the respondent and reinstall locks, the keys to which it may be inferred were to be held by the appellant.
5 An affidavit sworn by Noor Hidayat Ariffin was filed in support of the application, in effect verifying the matters pleaded in the defence, and stating that on 4 January 2008, the appellant received a letter dated 3 January 2008 from the respondent entitled 'Al Hidayah Mosque takeover' and that at about the same time the respondent published and circulated within the Muslim community in Perth, a document entitled 'Community announcement'. The affidavit also stated that the respondent 'effected the 'takeover' covertly by … causing all the locks to be changed … engaging a security firm to monitor and restrict and/or prevent entry to, and activities carried out in, the mosque' and that the respondent has exclusive custody, possession and control of all keys. The affidavit stated that as a result of the takeover, the appellant's members had been prevented from entering the office and carrying out their duties as managers of the mosque. The affidavit states that 'the rift between the [respondent] and the [appellant] escalated over the years to discontent and resentment on the part of the [respondent's] members towards the [appellant's] members causing the former not to attend the mosque. The affidavit also deposed to the fact that there 'have been occasions after the takeover when members of the Muslim community, who prior to that had unrestricted access to the mosque, have found the gates locked and have been unable to gain access to the mosque to pray'. The affidavit also stated that there are collection boxes within the mosque into which members of the congregation regularly make cash donations. The affidavit says that the collection boxes were last emptied in early November 2007 and at the time of the 'takeover' by the respondent, there were moneys in the collection boxes donated during the intervening period prior to the takeover.
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6 The respondent filed two affidavits in opposition sworn by Pangestu Ginandjar and Shamsudin Pendek. In his affidavit, Mr Ginandjar deposed that the appellant was advised that 'all are welcome to use the mosque for day-to-day rituals and praying and all the [appellant's] members were invited to become members of the [respondent's] incorporated association'. The affidavit said that it notified the appellant that it would take over management of the mosque 'only after it was discovered … on 31 December 2007 that the [appellant] had changed all of the locks to the office at the mosque which action was taken despite the [respondent's] ownership of the land and of the mosque'. As to the contention that members of the appellant were not able to pray, Mr Ginandjar said:
Although the mosque is open to any Muslim to enter and pray during prayer times, for security reasons, the mosque is often locked from the last prayer at night to early morning.
7 In the affidavit sworn by Shamsudin Pendek, relied upon by the respondent, Mr Pendek deposed that 'the mosque is opened up well in time to enable any Muslims who wish to come and pray to do so'. He also deposed that 'during the times when the mosque is not officially open for prayer services [he ensures] that there are prayer mats available in the foyer so that anybody who wishes to drop by at the mosque has a place to pray'. As to the collection boxes, Mr Pendek said that funds collected had been properly accounted for and used in the management of the mosque and that the funds were not used to fund the litigation and that a separate account had been opened.
8 Two other affidavits were filed by the appellant and sworn by Mr Marsuki, deposing to various points of disagreement between the parties.
9 The appellant's application for the injunction was heard by the Chief Justice on 4 March 2008 and disposed of with ex tempore reasons on that day. The Chief Justice recited the differences between the parties by reference to the pleadings and the affidavits, correctly directed himself as to the law relating to interlocutory injunctions and then dealt first with the assessment of the prima facie case upon which the appellant relied. His Honour said:
I would … observe that there is no allegation of any agreement between the [respondent] and the [appellant] vesting any particular right or rights in the [appellant]. It is said that there was a resolution passed at a meeting held in April 2002 to the effect the [appellant] would manage the mosque. There is no evidence, nor any allegation before me to the effect that that gives rise to an irrevocable conferral of the power of management save for
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- the reference to the alleged tenet of Islam in the affidavit filed earlier today. Nor is there any evidence to the effect that the resolution was passed by the [respondent] [23].
10 His Honour also noted that there was an argument advanced in the defence based on estoppel, but noted that this was based upon representations impliedly made over a period of time before either the respondent or appellant were formed and the representations relied upon were as to the capacity of Muslims to attend the premises for prayer, not as to the management of the mosque nor as to the entitlement of the appellant as a corporate entity to take possession of the land [24].
11 An argument was advanced before the Chief Justice that the respondent held the land in trust, and that:
Contrary to the terms of … the defence, that that trust extends to the community or the congregation that attends the mosque [25].
12 The Chief Justice said:
If that is the argument, that is quite a different thing from saying that the [appellant] is the beneficiary of that trust in such a way that it can enforce a right to occupation of the land to the exclusion of the [respondent]. That is not the case that has been advanced on the evidence or on the pleaded defence [25].
13 The Chief Justice concluded that it was sufficient for him to say that he was not disposed to rule that the appellant's case was unarguable, but was of the view that as enunciated it was 'very weak' [26].
14 His Honour then turned to the balance of convenience, noted that the respondent was currently opening the mosque for prayer and making the mosque available for all members of the Muslim community who wished to attend for prayer. His Honour concluded that on the evidence before him, the respondent was taking appropriate steps in relation to the collection of funds donated by the community and that to grant the injunction would be to 'significantly alter' what is the 'current state of affairs and in a way which interferes significantly with the rights created by registration of the [respondent] as the [registered] proprietor of the land' [29]. There is no challenge to those conclusions. As a result, the application was dismissed.
15 The appellant appealed on 16 grounds that cover five and a half pages.
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16 The respondent interpreted two of the grounds as alleging bias on the part of the Chief Justice, but the counsel for the appellant stated that the appellant wished to make clear that it did not allege bias on the part of the Chief Justice and that none of the grounds should be read as suggesting that that was so.
17 It is not necessary to refer to the grounds which are excessively long and repetitive. It is not necessary to refer to them because in oral submissions it became clear, as a result of statements made by counsel for the appellant, that the appellant's case for an injunction depended upon an argument that the land on which the mosque was built was held in trust for charitable purposes, namely for the purposes of the Muslim religion, that a tenet of the Muslim religion was that members of the Muslim community pray at the mosque and control the mosque and that on 1 April 2002, there was a meeting of that local community which passed a resolution conferring management of the mosque on the appellant and that this was the right the appellant was entitled to enforce and was the foundation for the claimed injunction which would, in effect, give it control of the mosque pending trial. This was the thrust of many of the repetitive grounds of appeal.
18 There are two difficulties with this argument. The first flows from the fact, as the Chief Justice observed, that there was no counterclaim. The issue on the pleadings involves a claim by the respondent to restrain the appellant from entering upon, or occupying the land and for damages. The appellant's defence offers reasons why that relief should not be granted. There is no counterclaim by the appellant asserting a right to manage the mosque and to have possession of the mosque. As a result, on the face of the pleadings, there was no foundation for an interlocutory injunction. As Gleeson CJ said in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [15], if the party claiming an interlocutory injunction 'cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears'.
19 Secondly, the appellant's argument proceeds on the basis that the local Muslim community who pray at the mosque can make decisions about the management and control of the mosque. However, there is nothing in the evidence that the appellant placed before the court or in the defence which suggests that any decision was made by any meeting of persons consisting exclusively of members of the local community. In par 7(a) of the defence, the appellant pleads that at the April 2002 meeting, the appellant was formed 'for the sole purpose of managing and
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- running the mosque' but this was a decision not by the members of the community, but by 'members of the community and other Muslims'.
20 Paragraph 13 of Mr Ariffin's affidavit stated that at the 1 April 2002 meeting, convened and attended 'mainly by CI Muslims', a resolution was passed electing the appellant to manage the affairs of the mosque. If it be assumed as correct, that 'CI Muslims' constitute the local community, the appellant on its own evidence, states that the meeting was attended 'mainly' by 'CI Muslims', meaning, of course, that it was attended by other people as well.
21 These two points would have supported a conclusion that there was no prima facie case to be tried (as that expression was explained in Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [71]) but the Chief Justice did not decide the application on that basis. His Honour, very favourably to the appellant, said that he would not conclude that the appellant's case was unarguable but instead categorised it as being 'very weak'.
22 Instead, the Chief Justice disposed of the application on the basis that the balance of convenience in any event, did not favour the grant of an injunction. The Chief Justice correctly observed that on the evidence, the respondent was shown to be the registered proprietor of the land and was entitled to exclusive possession of the land unless, or until (in effect) the appellant could point to a right which derived from the respondent's title or to which the respondent's title was always subject. The Chief Justice correctly stated that on the evidence the respondent was opening the mosque for prayer and making the mosque available to all members of the Muslim community who wished to attend for prayer. The appellant pointed to the fact that there was some evidence that there were times when the mosque was not open, but the evidence before the Chief Justice was that the mosque was only closed after last prayers and then reopened early in the morning. The uncontradicted evidence was that if persons wished to pray outside of those times, then facilities were made available to them for that purpose.
23 The Chief Justice was correct when he concluded that to grant the appellant an injunction would significantly alter the state of affairs which had prevailed until the appellant changed the locks (prompting the respondent to do likewise) and which would interfere significantly with the rights created by registration of the respondent as the proprietor of the land.
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24 Insofar as the grounds of appeal contend that the appellant had the prima facie right to occupy the land, that contention is not borne out even by the appellant's evidence, and the repeated reference to the 'tenets, beliefs, doctrines and practice of Islam' in the grounds of appeal is irrelevant unless the appellant succeeded in showing that a resolution of the local community was passed on 1 April. This is not to say that even if passed, the resolution would defeat the respondent's rights as registered proprietor. That proposition would have to be tested at trial.
25 The grounds of appeal alleging that the estoppel claim justified the grant of the injunction, must be dismissed for the reasons given by the Chief Justice.
26 Finally, it is necessary to deal with a submission repeated by counsel for the appellant on several occasions during oral submissions. The submission was that the respondent's case for relief claimed in the statement of claim, must fail. The submission was that the injunction claimed in the statement of claim, would prevent members of the local Muslim community from praying at the mosque and that this was contrary to the terms of the grant. There are two points to be made about the submission. The first is that it appeared that the appellant was confused about what had to be shown in order to obtain an interlocutory injunction. It is the applicant for the interlocutory injunction which must show a prima facie case and in this case, the applicant for the injunction is the defendant in the proceedings and it must therefore show that it has a prima facie case. Reference has already been made above to the Lenah Game Meats case.
27 The second point is that, while it may be acknowledged that the strength of the claim of the respondent would be relevant when it came to the balance of convenience, the relief sought by the respondent does not seek to restrain members of the Muslim community from praying at the mosque. The final relief sought is to restrain the appellant from entering or occupying the land. If the respondent succeeds, the relief will have to be moulded in a way which does not interfere with the rights of people who are shown to be entitled to pray at the mosque.
28 The appeal must be dismissed.
29 NEWNES AJA: I agree with Pullin JA.
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