Islamic Association of Wanneroo (Inc) v Al-Hidayah Mosque (Inc)
[2008] WASC 47
•4 MARCH 2008
ISLAMIC ASSOCIATION OF WANNEROO (INC) -v- AL-HIDAYAH MOSQUE (INC) [2008] WASC 47
| Link to Appeal : | [2008] WASCA 206 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 47 | |
| 31/03/2008 | |||
| Case No: | CIV:1788/2005 | 27 FEBRUARY & 4 MARCH 2008 | |
| Coram: | MARTIN CJ | 3/03/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Defendant's application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ISLAMIC ASSOCIATION OF WANNEROO (INC) AL-HIDAYAH MOSQUE (INC) |
Catchwords: | Practice and procedure Application for interlocutory injunction Nature of the defendant as an entity Turns on own facts |
Legislation: | Nil |
Case References: | Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AL-HIDAYAH MOSQUE (INC)
Defendant
Catchwords:
Practice and procedure - Application for interlocutory injunction - Nature of the defendant as an entity - Turns on own facts
Legislation:
Nil
Result:
Defendant's application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr P N Bevilacqua
Defendant : Mr E Carlose
Solicitors:
Plaintiff : James Chong & Co Pty Ltd
Defendant : Eapon Carlose
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
(Page 3)
- MARTIN CJ:
(This judgment was delivered extemporaneously on 4 March 2008 and has been edited from the transcript)
1 The defendant, Al-Hidayah Mosque (Inc) applies for an interlocutory injunction against the plaintiff, the Islamic Association of Wanneroo (Inc). The terms of the injunction sought are that:
Until judgment or further order the plaintiff be restrained from doing, whether by its members, servants or agents, any of the following acts:
(a) acting as managers of the Al-Hidayah mosque;
(b) holding out, by circulars or otherwise, that it or its members are managers of, or entitled to manage, the mosque;
(c) undertaking, carrying out or performing any function related or incidental to the management of the mosque;
(d) entering the office of the mosque; and
(e) doing any act to hinder, prevent or obstruct members of the defendant's executive committee or any of them from having unrestricted access to the mosque and/or any part of the premises and from carrying out any function, task, duties or activities related or incidental to the management of the mosque.
2 The defendant also seeks orders that the plaintiff do forthwith allow a locksmith engaged by the defendant to attend at the mosque situated in Walter Padbury Boulevard in Padbury to remove and replace all locks to the gate recently installed by the plaintiff and that the plaintiff publish to the community serviced by the mosque a copy of the order.
3 The application is made in proceedings which were commenced by the plaintiff on 4 July 2005. In the statement of claim endorsed on the writ the plaintiff pleads that it is and was at all material times the registered proprietor of the land on which a mosque has been constructed for the purposes of Islamic worship. It is common ground that the plaintiff has been the registered proprietor of that land since some time in 2001.
4 The pleading goes on to assert that the defendant has, without the consent of the plaintiff, wrongfully occupied and used the land and in particular that the defendant through its officers and members has periodically used and occupied the office room in the mosque and the mosque itself and has erected or caused to be erected a shed on the land
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- which is being used for the purposes of the defendant without the consent of the plaintiff.
5 The plaintiff further pleads that by notice in writing dated 7 January 2005, the plaintiff advised the defendant that its use and occupation of the mosque was unauthorised and required the defendant to cease to occupy the mosque and to vacate within 21 days of the date of that notice. The relief sought by the plaintiff is declaratory and injunctive, essentially restraining the defendant from occupying or entering upon the land.
6 In its defence the defendant admits that the plaintiff is the registered proprietor of the land but says that its registration as proprietor was as trustee of the land subject to a number of conditions, namely:
(a) the lodgement of building development plans and substantial progress being made in the construction of the mosque;
(b) the land was not to be sold without approval from Parliament;
(c) in the event of a sale, the proceeds of any such sale were to belong to the Crown; and
(d) the land was to be used exclusively for the purpose of building a mosque where Muslims could go and pray.
7 The defence also pleads the history of the development of the mosque and in particular the involvement of other entities, known as the Christmas Island Muslim Association of Wanneroo and the Hepburn Heights Mosque Building Committee. Both these entities were allegedly involved in the various steps that were taken to secure the land and the funds for the purpose of constructing the mosque.
8 In par 7(a) of its defence the defendant pleads that in April 2002 a meeting took place and was attended by members of the Muslim community who had migrated from Christmas Island and other Muslims, including the plaintiff's members. The defendant alleges that during that meeting the defendant's members were elected and the defendant was formed for the sole purpose of managing and running the mosque and that it has occupied portions of the mosque from time to time pursuant to the resolutions passed at that meeting.
9 Paragraphs 10 to 12 of the defence plead an estoppel said to arise from the donation of funds by members of the defendant. It is said that they made those donations in the 'belief, expectation and assumption' that the plaintiff would not prevent members of the Muslim community or any of them from entering the land or the mosque to pray. Paragraph 14 of the
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- defence pleads that if the plaintiff had informed the defendant's members at any time before 1993, or alternatively before 1998, that their 'belief, expectation and assumption were erroneous' and that 'the person or entity to whom title to the land was issued could, at his or her discretion, at any time in the future, prevent members of the Muslim community or any of them, from entering the land or the Mosque' they would not have acted to their detriment. It is also pleaded, in par 15 of the defence, that if the defendant's members had been made aware of the matters alleged in par 14 at any time prior to the land being registered in the plaintiff's name they would have taken steps to object to or prevent the land being registered in the plaintiff's name.
10 There are a number of obvious difficulties with these pleas, particularly the estoppel pleas. The first is that the defendant was not created at the time the plaintiff became registered proprietor of the land. Obviously it cannot have acted to its detriment before it was created. The other is that neither the plaintiff nor the defendant were created at the time the representations are said to have been made in periods before 1993 and 1998.
11 On the facts alleged in the defence, the project for the development of the mosque was at various times under the control of either the Christmas Island Muslim Association of Wanneroo or the Hepburn Heights Mosque Building Committee, neither of which are parties to these proceedings.
12 There is no counterclaim in the defence. On the face of the defence, there is a lack of connection between the representations relied upon and the defendant, and also a disconnection between the representations that relate to the capacity of members of the defendant to enter upon the land for the purposes of religious worship on the one hand and the right of the defendant to occupy the land to the exclusion of others and manage the mosque on the other. The defence contains no plea of a management agreement between the plaintiff and the defendant nor any plea of any title to enter upon or remain on the land.
13 A reply was filed to the defence and in three paragraphs in the reply, being pars 5, 7 and 10, the plaintiff quite specifically pleads that all members of the Muslim community, including the defendant's members, are at liberty to attend the mosque for prayers and worship in accordance with the tenets of Islam and at designated hours of worship.
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14 The affidavits relied upon by the defendant in support of the application are from Noor Hidayat Ariffin and Maswadi Marsuki. The affidavit of Noor Hidayat Ariffin deposes to the history of the development of the mosque and refers in par 3 to the tenets and practice of Islam including the making available of mosques for prayer sessions. It is said in par 3(g):
The activities of mosques are managed collectively by a group of persons usually selected or elected by and from the congregation of the respective mosques.
15 In par 13 reference is made to the meeting held on 1 April 2002 at which a vote was passed creating the defendant to manage the affairs of the mosque. Nothing more is said about the terms of that resolution. It is not said that there was any resolution to the effect that the vesting of management in the defendant was irrevocable or indeed that it was a decision taken by the plaintiff.
16 Reference is made in the affidavit to a letter sent by the plaintiff to the defendant dated 3 January 2008 advising that the defendant was to be excluded from further occupancy at the mosque and at the same time advice to that effect was given to members of the Muslim community. It is said that as a result of the events of early January of this year the defendant's members 'have been prevented from entering the office and carrying out their duties as managers of the mosque'. It is said that there have been 'occasions after the takeover when members of the Muslim community, who had previously had unrestricted access to the mosque, [had] found the gates locked and [had] been unable to gain access to the mosque to pray'. In addition, there is reference to the placement of collection boxes within the mosque in which members of the congregation regularly make cash donations. It is said that those collection boxes have been collected by the plaintiff. The affidavit goes on to depose to the consequences of the plaintiff's action in changing the locks to the mosque.
17 The first affidavit of Maswadi Marsuki refers to arrangements made in conjunction with a mediation in this Court, which arrangements have apparently broken down. A second affidavit of Maswadi Marsuki responds to assertions made in affidavits filed on behalf of the plaintiff and makes further assertions as to what occurred at the meeting in April 2002, although it does not condescend to any further detail as to the precise terms of the resolutions passed in April 2002, nor as to whether they were resolutions of the plaintiff.
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18 A third affidavit of Maswadi Marsuki has been sworn and filed. It also refers to the history of the matter and refers to the tenets, beliefs and doctrines of Islam which are now said to include the proposition that once elected, a committee of management 'could only be removed by the congregation at a duly convened meeting'. That affidavit was only filed and served on 4 March 2008. The plaintiff has had no opportunity to respond to it. It is a surprising proposition that a religious faith as old as Islam would include tenets in relation to management of mosques by committees, and the procedures to be followed for the removal of a committee of management. Nevertheless, that is the proposition that is advanced. In any event, the defendant has not pleaded such a religious tenet, nor explained in either a pleading or submission how such a tenet, if it existed, could confer any legal right upon it, enforceable against the plaintiff as registered proprietor of the land.
19 In opposition to the application, the plaintiff relies upon an affidavit of Pangestu Ginandjar who also deposes to the history of the development of the mosque. He deposes at par 8 of the affidavit:
It was always contemplated and still is the case that any Muslim is entitled to attend at the mosque.
20 The plaintiff also relies upon the affidavit of Shamsudin Pendek. He asserts that the plaintiff ensures the 'mosque is opened up well in time to enable any Muslims who wish to come and pray to do so'. He deposes that during the time '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'. He also deposes that the collection boxes have been collected by the plaintiff. He says the funds collected have been properly accounted for and are used in the management of the mosque. He deposes that the funds are not in any way used to fund this litigation and that a separate account has been opened under the name of 'Islamic Association of Wanneroo Hepburn Heights Mosque' in order to deal with those funds.
21 In the light of that evidence I address the questions which have to be addressed when application is made for interlocutory injunction. I take the principles that govern applications of this kind to be those set out by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 (particularly at [65] - [72]).
22 Put very shortly, the passages to which I have referred establish that the principles to be applied are those explained by the High Court in the earlier decision in Beecham Group Limited v Bristol Laboratories Pty
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- Ltd (1968) 118 CLR 618. Those principles do not require the plaintiff to make out a prima facie case in the sense that if the evidence remains as it is, it is more probable than not that the plaintiff will be held entitled to relief. Rather, the strength of the case that has to be made out by the party seeking interlocutory relief, depends upon, and is related to, the significance of the interlocutory relief sought and its practical consequences. As their Honours observed in O'Neill at [71], the 'requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought'.
23 Dealing firstly with my assessment of the arguable case upon which the defendant relies, I would again observe that there is no allegation of any agreement between the plaintiff and the defendant vesting any particular right or rights in the defendant. It is said that there was a resolution passed at a meeting held in April 2002 to the effect the defendant 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 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 plaintiff.
24 There is also an argument advanced in the defence based on estoppel. That is said to be based upon implied representations made over a period of time before either the plaintiff or the defendant were formed. The representations relied upon are as to the capacity of Muslims to attend the premises for prayer. They were not as to the management of the mosque or as to the entitlement of the defendant, as a corporate entity, to take possession of the land.
25 In the course of oral argument, reference was also made to the allegation that the plaintiff holds the land in trust. It is now said, contrary to the terms of par 2 of the defence, that that trust extends to the community or the congregation that attends the mosque. If that is the argument, that is quite a different thing from saying that the defendant 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 plaintiff. That is not the case that has been advanced on the evidence or on the pleaded defence. There is no evidence before me to the effect that the defendant is a corporate entity in which all members of the congregation who attend the relevant mosque are members and that therefore it is the corporate alter ego of the congregation.
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26 In all events, it is sufficient for present purposes for me to say that, having reviewed the pleadings and the evidentiary material that has been filed, I am not disposed to rule that the defendant's case is unarguable but I am of the view that as presently enunciated, it is very weak. It is conceivable that there may be a case which could be argued, subject to reformulation on the basis of different evidence. However, such a case has not emerged in the course of the affidavit evidence or the argument which has been advanced.
27 Turning to the balance of convenience, the plaintiff is the registered proprietor of the land and as such is entitled to exclusive occupation of the land unless and until some other person or entity can point to a right which derives from the plaintiff's title or to which the plaintiff's title was always subject. On the evidence, the plaintiff is currently opening the mosque for prayer and making the mosque available to all members of the Muslim community who wish to attend for prayer.
28 On the evidence before me, the plaintiff is managing the mosque and collecting funds that are donated by members of the community. On the evidence before me, the plaintiff is taking appropriate steps in relation to the collection of those funds. It therefore seems to me that if I were to grant the injunctive relief sought, I would be significantly altering what is the current state of affairs and in a way which interferes significantly with the rights created by registration of the plaintiff as the proprietor of the land.
29 Accordingly, when I take into account the weaknesses in the defendant's case, and the extent of the disruption and alteration of the current position that would be effected by the grant of the interlocutory relief sought, I conclude that it is appropriate for the application to be dismissed.
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