Kabbas v Victorian Weightlifting Association Inc

[2002] VSC 572

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8399 of 2002

ROBERT KABBAS AND OTHERS	Plaintiffs
v
VICTORIAN WEIGHTLIFTING ASSOCIATION INCORPORATED	Defendant

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 DECEMBER 2002
DATE OF JUDGMENT:	10 DECEMBER 2002
CASE MAY BE CITED AS:	KABBAS & ORS v VICTORIAN WEIGHTLIFTING ASSOCIATION INC
MEDIUM NEUTRAL CITATION:	[2002] VSC 572

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interlocutory injunction – No serious issue to be tried.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. Waller	Baldwins
For the Defendant	Mr W. Gillies	Meerkin & Apel

HIS HONOUR:

1. This is the return of a summons filed in the court by the four plaintiffs who are members of the defendant, the Victorian Weightlifting Association Incorporated, whereby they seek certain injunctive relief, in particular, an injunction restraining the defendant from holding the special general meeting which is scheduled to be held on Thursday, 12 December 2002; alternatively, an injunction restraining the defendant from counting at the meeting any vote purported to be cast by any of the 48 persons who were admitted to membership of the defendant association at a Council meeting held on 29 October 2002.

1. I have considered the arguments which have been advanced by counsel on behalf of the plaintiffs in support of the application and, having done so, I am not satisfied that there are any serious issues to be tried in the proceeding.  The affidavit material, in particular, the affidavit of Sam Coffa, sworn on 5 December last, establishes that following the completion of the defendant's new stadium and office complex at Hawthorn, it was agreed that there be a membership drive for new members.

1. The fourth-named plaintiff agrees that that decision was taken.  However, he (the fourth-named plaintiff) maintains that the drive was to be directed to persons who would be active participants in weightlifting.  That assertion, I might add, is challenged by Mr Coffa.  I must say that I am a little puzzled at the suggestion in question that is - that a sporting association conducting a membership drive, would place any restriction at all on the type of persons admitted to membership.  In my experience, most sporting bodies are anxious to have as many members as they possibly can, regardless of whether the age or state of health of a particular member or members precludes the member from being an active participant in the sport.  Indeed, if the sporting bodies began to make stipulations of the type suggested here, it would not be surprising to find that many of them would be unable to function adequaqtely.

1. At all events, there is no doubt that there was a decision made by the Council to hold a membership drive, and Coffa has sworn in his affidavit of 5 December that, as a consequence of that membership drive, some 48 applications for membership were received by himself, he being the Executive Director of the Association.  If I did not say so a moment ago, those applications were received, he has sworn, in the first two weeks of October, and I consider that factor to be of significance having regard to events that occurred thereafter, in particular, the fact that on 21 October more than one third of the members of the Association lodged a petition calling for a special general meeting of the Association to be held.

1. What occurred thereafter is that, on 29 October, the Council held a Council meeting.  At that meeting the Council resolved to accept the 48 new applications for membership and determined that, having regard to the fact that there were only a few months of the calendar year left, the new applicants should only be required to pay a pro rata subscription, that pro rata subscription being fixed at the sum of $20.

1. Now, provision is made for that sort of thing in the Rules of the Association, in particular, Rule 3.2(c), which reads:

"A registered member is a natural person who has paid the membership fee fixed by the Council."  

1. The preponderance of evidence is to the effect that at the meeting of 29 October the Council did fix the fee in question which was in line, I think Coffa has sworn, with the practice of the Association over some 30 years.  And again if one can speak from one's own experience, is quite a common practice of other sporting associations.

1. I have given consideration also to the argument advanced by counsel on behalf of the plaintiffs that a proper reading of Rules 7 and 8 of the Rules of the Association would restrict the Council of the Association from admitting to membership new members whose applications may have been received prior to the date of a petition and whose applications it may wish to then deal with at the same Council meeting at which it fixes the date for the special general meeting.

1. In my opinion, a proper reading of those rules places no restriction on the Council of the Association considering applications for membership that it received prior to receipt of a petition calling for the convening of a special general meeting.

1. It follows then, as I said at the outset, I am not satisfied that there are serious issues to be determined in the proceeding and, in that situation, the application for injunctive relief must fail.

1. The application will be dismissed.  I order that the plaintiffs pay the defendant's costs of the application.

MR GILLIES:  Your Honour, does that order include the reserved costs of last Friday before the Master?

HIS HONOUR:  That will include reserved costs, yes.

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