Khmer Buddhist Temple Association Inc v Chhet (No 2)
[2021] VSC 418
•14 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2021 00158
| KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) (and others according to the Schedule attached) | Plaintiffs |
| v | |
| THE VENERABLE HOUT CHHET (and others according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 February 2021, 30 April 2021, and 16 June 2021 |
DATE OF JUDGMENT: | 14 July 2021 |
CASE MAY BE CITED AS: | Khmer Buddhist Temple Association Inc & Ors v Chhet & Ors (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 418 |
INCORPORATED ASSOCIATIONS – Incorporated association for religious purposes – Interlocutory injunctions – Serious issue to be tried – Balance of convenience – Least risk of injustice – Position of Abbot – Associations Incorporation Reform Act2012 (Vic) ss 1(b), 33(1), 34, 46, 67, 83(2), 84, 85 – Model Rules for Incorporated Associations rr 42, 45(2)–45(5).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A Naidu | Logans Barristers & Solicitors |
| For the Defendants | Mr J Sutton | SDR Law |
HIS HONOUR:
Introduction
The first plaintiff, Khmer Buddhist Temple Association Inc (ABN 63 990 104 294) (‘Association’), is an incorporated association formed by Buddhist members of the Cambodian community in Melbourne.
The Association owns the premises at 99 Alexander Avenue Thomastown (‘premises’), where it conducts prayer meetings and community functions. The temple at the premises is known as the Eysanmeanchey Temple (‘temple’).
In 2020, the committee (‘Committee’) and office bearers of the Association were:
(a) Sothy Samreth, President and second defendant;
(b) Visal Mom, Vice President and second plaintiff;
(c) Serei Put, Secretary and third plaintiff; and
(d) Maxwell Zor, Treasurer and fourth plaintiff.
By originating motion and summons filed 27 January 2021 (‘summons’), the plaintiffs seek an injunction to restrain the first defendant, Mr Hout Chhet (‘Abbot’), from acting as the Abbot of the temple. They also seek to restrain the defendants from:
(a) representing that they are office bearers of the Association;
(b) entering or remaining on the premises;
(c) acting on or implementing any resolution associated with or connected to the Association; and
(d) lodging documents with the Australian Charities and Not-for-Profits Commissioner (‘ACNC’) or Consumer Affairs Victoria (‘Consumer Affairs’).
Hearing on 3 February 2021
The summons came on for hearing on 3 February 2021. I held that there were serious issues to be tried, and restrained the third to fifth defendants until further order from acting as the committee of the Association or from permitting or causing any instrument or document to be lodged with the ACNC or Consumer Affairs seeking changes in the registration or recording of office bearers of the Association.[1] I referred the proceeding to judicial mediation, and adjourned the summons until after the mediation was conducted.
[1]Khmer Buddhist Temple Association Inc v Chhet [2021] VSC 45 (‘previous reasons’).
The mediation was unsuccessful. The summons has now been fully heard, and stands for determination.
Affidavits
The plaintiffs principally rely on the affidavits and exhibits of:
(a) Serei Put filed 27 January 2021, 2 February 2021, 29 April 2021 and 8 June 2021;
(b) Visal Mom filed 31 January 2021 and 2 February 2021;
(c) Vann Em filed 29 April 2021 and 8 June 2021;
(d) Simond Long filed 29 April 2021;
(e) Mokol Chea filed 29 April 2021;
(f) Sue Chhor filed 29 April 2021 and 7 May 2021;
(g) Roserey Ry filed 30 May 2021;
(h) Veourn Dom filed 8 June 2021; and
(i) Maxwell Zor filed 8 June 2021.
The defendants principally rely on the affidavits and exhibits of:
(a) Hout Chhet filed 19 May 2021 and 11 June 2021;
(b) a female person filed 11 June 2021;
(c) Kim Top filed 11 June 2021;
(d) Sothieng Ouk filed 11 June 2021; and
(e) Kakada Choun filed 11 June 2021.
The second defendant did not file an affidavit.
Background of dispute within the Association
The Association is a charity, and was established to promote the Buddhist faith and to support the Buddhist community in Victoria. As an incorporated association, it is governed by the Associations Incorporation Reform Act 2012 (Vic) (‘Act’) and the Model Rules for an Incorporated Association (‘Model Rules’).
The Abbot is a Buddhist monk who resides at the premises. He was appointed Abbot by the Association in 2012. In accordance with the Buddhist religion, he is not paid wages, and is supported by the temple community.
From about March 2020, the Committee began to receive complaints about the conduct of the Abbot. The allegations were serious, going to the Abbot’s adherence to his monastic vows and duties, and to his honesty and integrity. I will detail the complaints later in these reasons.
On about 28 October 2020, Mr Put wrote to the Abbot and Mr Samreth calling a meeting of the Committee for 14 November 2020 to resolve the complaints against the Abbot. Two days prior to the meeting, the Abbot obtained an interim intervention order against Mr Put. This prevented Mr Put from going to the temple.
Attempted election of new committee
On about 13 November 2020, Mr Samreth circulated notices advising of the calling of an Annual General Meeting to be conducted on 22 November 2020 at the premises. The agenda for the meeting stated that reports would be heard from the President, Treasurer and Secretary, and an election conducted for the period 2021 to 2023. This occurred without the approval of the Committee.
Mr Put did not attend the meeting because of the intervention order. Mr Mom said that when he arrived at the premises on 22 November 2020, there were already 40 or 50 people in attendance. The number quickly grew to at least 100 persons, including many who were strangers. A former city councillor who was not a member of the Association made announcements in Khmer that the Association was going to elect a committee, and that there were four nominees. Mr Mom recognised only one name – that of Mr Samreth.
Arguments broke out as to why the meeting was occurring without the Committee, and how was it possible for the meeting to be called. There was a lot of commotion and people began to yell at each other. Some people were very angry and began grabbing the forms and pieces of paper that were being handed out, and yelling about ‘cheating’ and ‘frauds’.
About six to eight police officers arrived at the premises an hour and a half later. They asked those present to leave or face arrest.
The meeting purported to re-elect Mr Samreth as President, and to elect the third to fifth defendants as the new Vice-President, Secretary and Treasurer of the Association.
Subsequent to the meeting on 22 November 2020, the fourth defendant prepared, signed and sealed a minute of the meeting.
On 26 November 2020, the second to fifth defendants purported to have a special committee meeting. A notice was posted on the outer fence of the premises giving the names of the second to fifth defendants as the current committee members of the Association.
By 14 December 2020, the premises were locked and the gate lock was changed by the new committee.
Association’s bank authority and signatories
On 26 November 2020, Mr Samreth attended at the Thomastown branch of the Commonwealth Bank of Australia (‘CBA’) and attempted to change the Association’s governance details. A CBA bank officer recorded that the proffered minutes did not contain proper information and noted a dispute with the existing Committee members and the attendance of police. He placed a stop on the Association’s profile.
On about 30 November 2020, the second to fifth defendants succeeded in changing the Association’s bank account authority and signatories, giving them control of the Association’s CBA bank account.
ACNC
The ACNC has received three signed forms seeking to change the Committee’s details, each dated 27 November 2020. Copies of the minutes of the special meeting of the new committee on 26 November 2020 have been submitted to the ACNC.
On 9 December 2020, the fourth defendant emailed the ACNC stating that the new membership of the Committee had been finalised on 26 November 2020.
On about 22 December 2020, an ACNC officer contacted Mr Put and advised that a form to change the responsible person had been submitted. The form was signed by the third defendant.
On 22 January 2021, Mr Put received an email from the ACNC stating that the responsible person had been changed to the name of the fourth defendant. A search of the online registry of the ACNC revealed that the fourth defendant had been listed as the Secretary of the Association.
Consumer Affairs
On 30 November 2020 and 11 December 2020, Mr Put received emails from Consumer Affairs advising that someone had requested a password reset. Mr Put rang Consumer Affairs and advised that no password reset had been requested. It does not appear that the Association’s registration details with Consumer Affairs have subsequently been altered.
Disciplinary subcommittee
On 12 December 2020, the Committee met in the absence of Mr Samreth. They resolved to temporarily suspend the Abbot and establish a disciplinary subcommittee to hear the allegations against him. The following day, they informed the Abbot that he was to remove himself from the premises.
On 3 January 2021, the disciplinary subcommittee met and resolved to strike the Abbot’s name from the list of members of the Association. The Abbot did not attend.
Khmer New Year celebrations
The Khmer New Year generally falls in April of each year. It is a very important celebration for the temple community, and one of the most important events of the Khmer calendar. Celebrations continue for three days. This year the dates were from Wednesday 14 April 2021 until Friday 16 April 2021. When the three day period falls on weekdays, celebrations are routinely conducted on a weekend.
In 2020, the Khmer New Year was not celebrated due to the COVID-19 pandemic.
In 2021, the Committee decided to have the Khmer New Year celebrations on Saturday 3 April 2021. The Abbot was not consulted as the organisers did not consider him to be the spiritual guide of the temple any more.
Members of the community were notified of the celebrations by the Committee and invited to come and make offerings.
On 3 April 2021, members of the community arrived at the premises dressed for the celebrations from 8.00am. They had prepared and brought food offerings and food to share among the congregation. Prayers were to be said by monks invited from the temple in Springvale, with the program concluding by 12.00pm.
When the celebrants arrived at the temple, they found that the temple gate was locked, and a notice had been erected to the effect that the temple would be closed for the Easter holidays. Persons wishing to celebrate the Khmer New Year on any days other than the actual days of the New Year were advised to visit the Springvale temple instead.
Given the number of people in attendance, including three monks, a ceremony was conducted in a park near the temple.
The temple had not previously been closed to the community. Easter holidays are not observed by Cambodian Buddhists.
In his first affidavit, the Abbot said that the proposal to conduct Khmer New Year celebrations on 3 April 2021 was made without reference to him and without the approval of the second defendant. He said that he feared for his safety and caused the notice to be put on the temple gates stating the dates of the Khmer New Year celebrations and asking for registration by those who wished to attend.
The Patimokkha
Buddhists pay immense respect to their monks and give them substantial privileges because of the sacrifice they have made to renounce worldly things. They are expected to show supreme spiritual strength and rectitude. They are celibate, do not own property or possess money, and survive from alms. They do not receive remuneration or wages.
The code of monastic discipline comprises 227 rules known as Patimokkha. These rules apply to monks of the Theravada Buddhist tradition. The Abbot is a monk in that tradition. The rules of the Patimokkha vary in significance, purpose and consequences if breached.
The first four rules of the Patimokkha are known as the four parajikas. A breach of any of these rules is considered very grave.
The four parajikas are prohibitions against:
(a) sexual intercourse;
(b) stealing or robbing money, gold or valuable things;
(c) killing any person; and
(d) making false claims of attainment of stages of mental concentration or enlightenment.
If proven to a committee of monks known as a Sangha, a breach would normally result in the offender being removed as a monk and not being readmitted. A Sangha can vary in size. If the alleged breach of the rules is serious, the Sangha normally comprises at least 20 monks. Because of the small number of Theravada Buddhist monks in Australia, it is very difficult to call a Sangha of this size. Allegations of serious breaches of the Patimokkha may need to be referred to the monastic authorities in Cambodia.
In addition to the four parajikas, the Patimokkha includes 13 samghadisesas, two aniyatas and 30 nissaggiyas. There are 92 pacittiyas. Even rules of lesser importance must be obeyed. There are other classes of rules, but it is unnecessary to detail them.
Complaints against the Abbot
The main complaints against the Abbot are:
(a)having sexual relations with a woman (‘female person’);
(b)registering another association called the Cambodian–Australian Buddhist Temple Association Inc (ABN 25 940 163 249) (‘Cambodian-Australian Buddhist Temple Association’), which had similar objects to the Association;
(c)sponsoring Buddhist monks to come to Australia without the knowledge or authority of the Committee;[2]
(d)taking donations and money intended for the Association;
(e)being in possession of substantial amounts of cash without the authority of the Committee;[3] and
(f)purchasing a property in Cranbourne North after obtaining a mortgage from the Westpac Banking Corporation (‘Westpac’).
[2]See Model Rules rr 42(1)–(2).
[3]Ibid.
Sexual relations with a female person
The rules of the Patimokkha include prohibitions against:
(a)sexual intercourse (parajikas rule 1);
(b)touching a woman (samghadisesas rule 2);
(c)being found alone with a woman in a remote place that can cause suspicions about sexual intercourse (aniyata rule 1);
(d)spending the night under the same roof as the laity (pacittiyas rule 5);
(e)lying down in a building in which there is a woman (pacittiyas rule 6);
(f)remaining alone with a woman in an isolated place (pacittiyas rule 44); and
(g)sitting next to a woman in a place remote from others’ ears (pacittiyas rule 45).
It is alleged that the Abbot was a regular visitor to the home of the female person, ate dinners with her family and spent nights with her in her bedroom. It is alleged that the female person would routinely pick up the Abbot after prayers at the temple, take him to her home, and then return him to the premises the next morning before the start of prayers. It is alleged that the sexual relationship between the Abbot and the female person continued for some time. The allegation is based in part on statements made by a family member of the female person.
The Abbot denies engaging in sexual intercourse with any person while a monk. The female person deposed that the allegation that she had had a sexual relationship with the Abbot was false. She deposed that her relationship with her relevant family member became increasingly strained in 2020.
Cambodian-Australian Buddhist Temple Association
In 2017, the Abbot used the address of the female person to register and establish the Cambodian-Australian Buddhist Temple Association with the ACNC. This new association has similar objects to those of the Association.
Sponsorship of overseas monks
Between 2017 and 2020, the Abbot and Mr Samreth sponsored and obtained visas for up to four Buddhist monks to come to Australia. Temporary activity visas were obtained for religious work with the Association. The sponsorship of these monks was undertaken without the knowledge or approval of the Committee.
Taking money donated to the Association, being in possession of a substantial amount of cash without the authority of the Committee, and purchasing a property
The rules of the Patimokkha include prohibitions against:
(a)stealing (parajikas rule 2);
(b)accepting money (nissaggiyas rule 18);
(c)using money (nissaggiyas rule 19);
(d)exchanging things (nissaggiyas rule 20); and
(e)lying (pacittiyas rule 1).
The Association raises money through weekly donations, special donations and occasional donations from events and ceremonies.
People who come to the temple often leave donations of food or money. Sometimes monetary donations are made by cheque, but larger donations are mainly in cash. The practice is for donations to be blessed by the Abbot before the cash or cheque is banked. After being blessed, donations are given to the Treasurer to be banked, or held securely in a locker at the temple until banked.
Ms Chhor deposed that she was a member and former Treasurer of the Association. She and her family were very active in supporting the Association, helping to raise funds for the establishment of the temple and donating many things to support the Association’s activities.
Following Ms Chhor’s election as Treasurer of the Association in 2015, she immediately encountered problems with the Abbot. By the end of her second month as Treasurer, she found that cash donations were missing from the temple. She said that she would routinely discover empty envelopes in the temple locker. She was distressed by this regular occurrence. The problem continued throughout her term as Treasurer.
Ms Chhor said that when she could ascertain how much money was missing, she would personally make up the shortfall. During her time as Treasurer, she personally made up an estimated shortfall of $3,500. She did not know how much else was missing.
She deposed that she confronted the Abbot and Mr Samreth on many occasions about the loss of funds. Mr Samreth blamed the two monks who were seminal residents of the temple. They denied taking money. As far as Ms Chhor was aware, they never handled money. The Abbot was dismissive and told her to be quiet in strong terms. She said she felt physically intimidated.
Donations from family events held at private homes also went missing. Ms Chhor estimated that about $15,000 was taken and had passed into the hands of the Abbot.
Ms Chhor made inquiries as to a donation made by family friends in 2014 of USD$10,000, which had been handed to the Abbot. Her review of the Association’s CBA bank account showed that the money had not been deposited. The Abbot denied that the money had been received.
Ms Chhor said that the Abbot had asked whether he could use her family hobby farm for a conference of monks and a Robe Ceremony. Following this activity, the Association received donations of about $60,000. When the final tally was done, cash donations of about $5,000 were missing.
Ms Chhor decided not to continue in the role of Treasurer. At the 2017 Annual General Meeting, Mr Zor was appointed as the Treasurer of the Association.
Mr Zor deposed that as Treasurer, he was usually the only person who deposited money into the Association’s bank account. Monies received included donations raised through functions. Sometimes members would transfer donated funds into the account directly. It was rare for any other Committee member to deposit funds into the account.
Mr Zor said that on 7 December 2020, there was an unexplained withdrawal of $7,500 from the account through the CBA Thomastown branch.
The Abbot’s bank accounts and income
First NAB account
On 28 March 2017, the Abbot opened a bank account in his own name with the National Australia Bank (‘NAB’) at its Epping branch (‘first NAB account’). On 30 March 2017, a cheque for $1,430 was deposited into the first NAB account, and on 31 March 2017 a cash deposit of $4,460 was made.
On 25 July 2018, the Abbot withdrew $1,000 by a transfer described as ‘Monthly Fee – Cambodian Australi K9544158087’. A second transfer of $2,000 described as ‘Membership – Cambodian Australi D5845229006’ was made on 13 August 2018. These transfers appear to have been made to the Cambodian-Australian Buddhist Temple Association.
The first NAB account was closed by the Abbot on 24 February 2021, three weeks after the first day of hearing of this proceeding. The closing withdrawal was $2,946.65.
Second NAB account
On 28 March 2017, the Abbot opened a second account in his own name with NAB at its Epping branch (‘second NAB account’). Between 28 March 2017 and 25 February 2021, the following deposits were made into the second NAB account, totalling about $187,362.65:
12 May 2017 $3,592 (Cash)
25 July 2018 $2,945 (Cash)
23 January 2019 $7,275 (Cash)
4 February 2019 $8,650 (Cash)
25 February 2019 $72,040 (Cash and/or cheques)
26 February 2019 $10,100 (Cash)
27 March 2019 $10,000 (Cash)
5 April 2019 $2,250 (ATM Deposit Cash)
$3,000 (ATM Deposit Cash)
9 April 2019 $1,500 (Cash)
31 May 2019 $5,000 (Cash)
18 July 2019 $3,345 (Cash)
1 August 2019 $2,700 (Cash)
23 September 2019 $4,030 (Cash)
1 October 2019 $2,240 (Cash)
22 October 2019 $2,640 (Cash)
12 November 2019 $280 (ATM Deposit Cash)
$2,100 (ATM Deposit Cash)
9 January 2020 $3,380 (Cash)
13 January 2020 $832.45 (Cash)
3 February 2020 $1,150 (Deposited)
7 February 2020 $930 (ATM Deposit Cash)
27 February 2020 $985 (ATM Deposit Cash)
$3,550 (ATM Deposit Cash)
3 March 2020 $2,640 (ATM Deposit Cash)
10 March 2020 $233 (Cash)
$5,000 (Cash)
11 March 2020 $2,600 (ATM Deposit Cash)
16 March 2020 $1,090 (ATM Deposit Cash)
$1,495 (ATM Deposit Cash)
$1,885 (ATM Deposit Cash)$2,000 (ATM Deposit Cash)
27 March 2020 $1,250 (Cash)
4 May 2020 $12,910.20 (Electronic transfer from Thai Airways)
2 July 2020 $745 (Cash)
15 July 2020 $1,000 (Cash)
The second NAB account was also closed on 24 February 2021, three weeks after the first day of hearing of this proceeding, with a closing withdrawal of $13,595.94.
The first and second NAB accounts cover a period of over three years during which the only suggested or identifiable source of substantial cash monies for the Abbot was donations to the temple.
CBA Access account
The Abbot also opened and operated a CBA Smart Access account (‘CBA Access account’). Between 1 January 2016 and 5 January 2021, the CBA Access account received about $41,854.85 by way of cash deposits or direct credits:
18 January 2016 $2,400 (Direct Credit)
1 February 2016 $12,000 (Direct Credit from the Department of Immigration)
29 December 2017 $1,000 (Cash)
2 January 2018 $1,000 (Cash)
9 January 2018 $200 (Transfer)
$2,000 (Cash)
10 January 2018 $750 (Cash)
27 April 2018 $4,710.50 (Cash)
1 October 2018 $2,900 (Cash)
23 January 2019 $951.75 (Cash)
31 May 2019 $485.75 (Cash)
1 August 2019 $480 (Cash)
$20 (Cash)
$456.85 (Cash)
16 December 2019 $1,700 (Cash)
3 March 2020 $200 (Western Union transfer)
11 September 2020 $300 (Netbank transfer)
23 October 2020 $400 (Transfer)
6 November 2020 $2,000 (Cash)
1 December 2020 $2,250 (Cash)
2 December 2020 $2,250 (Transfer)
22 March 2021 $1,430 (Cash)
12 April 2021 $990 (Cash)
22 April 2021 $980 (Cash)
These transactions cover a period of over five years, during which the Abbot had no apparent access to cash funds other than donations made to the temple.
The refund received from the Department of Immigration in the sum of $12,000 on 1 February 2016 appears to relate to the Abbot’s sponsorship of monks who wished to come to Australia. This money appears to belong to the Association.
Taken in total, the Abbot’s bank accounts show that he received approximately $235,107.50 over the period from 2016 to 2021.
NewStart allowance, wages and JobKeeper payments
The Abbot’s bank statements show that the Abbot was in receipt of the NewStart allowance from about 27 August 2017 until about 2 July 2019, and was then in receipt of JobKeeper payments from about 19 July 2020.
He also received a salary from Omni Care Pty Ltd, a private aged care service provider, from 26 June 2019 to 16 April 2020.
As a monk, the Abbot is forbidden from paid employment, and must live on the charity of the community.
The Abbot’s expenditure
Bank statements show that the Abbot expended funds from his three accounts for the following purposes:
(a)personal expenses;
(b)purchasing a property;
(c)gifts to the Cambodian-Australian Buddhist Temple Association;
(d)purchase of lottery tickets;
(e)purchase of adult material;
(f)hotel accommodation;
(g)airline tickets; and
(h)payments to the Department of Immigration.
Property purchase
In about March 2019, the Abbot purchased a residential property in Endeavour Drive, Cranbourne North (‘property’) in his own name. The property is mortgaged to Westpac, and was obtained through the RAMS Financial Group Ltd (‘RAMS’).
In his RAMS Home Loan Application Form (‘loan application’), the Abbot declared that:
(a)he was the borrower and was a first home buyer;
(b)he was renting at 99 Alexander Avenue, Thomastown (being the premises);
(c)his post-settlement address would be at the property;
(d)he was self-employed, selling retail goods online from the premises, which he commenced to do in May 2016;
(e)his employment address was at the premises;
(f)his total annual income was $95,000;
(g)he had savings of $100,000 in a NAB account;
(h)he had $12,000 in superannuation benefits;
(i)he had personal effects valued at $40,000;
(j)he owned a 2016 LEXUS NX200 valued at $45,000;
(k)he had stock valued at $30,000;
(l)he spent $1,000 per month on food and toiletries;
(m)he spent $200 per month on clothing and personal care; and
(n)he spent $200 per month on recreation and entertainment.
The Abbot sought to borrow $388,000 over a term of 30 years. The property was purchased for $485,000 with a deposit of $90,000. The property was to be solely owned by him and owner occupied. He stated on the application form that it was not an investment property.
The Abbot signed the application form on 25 February 2019. The loan was subsequently approved and settlement took place on or about 23 March 2019.
It is hard to see how a number of statements made by the Abbot in the loan application could be correct. For example:
(a)he was not renting at the premises;
(b)his post-settlement address was not at the property – rather, he was required under his monastic vows to reside at the temple;
(c)he did not conduct an online sales business, or should not have been doing so;
(d)he did not have an annual income of $95,000 as he was not permitted to be employed or earn money;
(e)his savings in his NAB accounts appear to be mainly derived from money obtained from the temple;
(f)as a monk, he did not have $12,000 in superannuation;
(g)he did not have personal effects valued at $40,000; and
(h)the property was not to be owner occupied – rather, the property was an investment property.
The sale of real estate nomination form in relation to the property lists ‘Bee Laungrath’ as the purchaser and the Abbot as the nominee. The address of Bee Laungrath is given as the premises. Mr Zor desposes that he does not know who Bee Laungrath is. He or she is not a member of the Association, and does not reside at the premises. The name Bee Laungrath appears to be fictitious.
In an accompanying form, the Abbot declared that he had been self-employed for two years and nine months. Again, it is difficult to see how this could be correct, given that the Abbot was not permitted by his monastic vows to earn or hold money.
The Cambodian-Australian Buddhist Temple Association
The financial reports of the Cambodian-Australian Buddhist Temple Association show that in the 2018 financial year, it raised $22,102.55 in revenue, while in the 2019 financial year it raised $8,226.66 in revenue. As a charity, these funds could only have been raised by donations.
It appears very likely that donations made to the temple were diverted by the Abbot to the new association.
Lottery tickets
The Abbot purchased lottery tickets using his CBA Access account as follows:
1 September 2020 $100
1 September 2020 $98.10
10 September 2020 $90.90
15 September 2020 $39.10
20 October 2020 $75.20
20 October 2020 $4.20
10 November 2020 $43.70
19 March 2021 $99.70
13 April 2021 $40.20
15 April 2021 $29.60
17 April 2021 $1.10
20 April 2021 $43.35
The Abbot purchased lottery tickets using the second NAB account as follows:
19 June 2020 $60.60
22 June 2020 $35.90
24 June 2020 $35.15
25 June 2020 $60.60
30 June 2020 $66.20
7 July 2020 $138.20
14 July 2020 $35.90
15 July 2020 $23.80
17 July 2020 $30.30
Buddhist monks are prohibited from gambling. It appears that the Abbot may have used money donated to the temple and paid into his account to buy the lottery tickets.
Purchasing adult material
The Abbot’s CBA Access account contains the following transactions:
5 January 2018 $276.85 (SEXYLAND)
20 February 2020 $USD39.99 (nthvzn.com)
27 February 2020 $USD46.88 (HASHNSW.com)
29 February 2020 $USD39.99 (VSNBND.com)
Sexyland is an adult superstore. ‘nthvzn.com’, ‘VSNBND.com’ and ‘HASHNW.com’ are discreet billing services which hide details of the true subscription sites.
Accommodation
The Abbot made the following payments for hotel or motel accommodation:
(a)$478.09 to Agoda on 16 March 2019;
(b)$17.50 and $138.99 to Mantra Epping on 25 and 28 December 2019 respectively; and
(c)$23.50, $146 and $9.60 to Mantra Epping on 31 December 2019, 3 January 2020 and 7 January 2021 respectively.
The Abbot did not need to pay for accommodation as he lived within the temple and was prohibited by his monastic vows from living with laity.
Airline tickets and the Department of Immigration
The Abbot’s bank statements show numerous payments to airlines including Virgin, Tiger Airways and AirAsia. It appears that none of these payments, or the resultant flights, were approved by the Committee.
There are also a number of payments made by the Abbot to the Department of Immigration. It appears that they were made without the approval of the Committee.
Summary of financial impacts on the Association
Donations made to the temple were almost always made in cash. They were left by the altar, or ‘presented’ through the Abbot as an offering to the temple. The Abbot received the money ceremonially and handed the funds over to the Treasurer. For safe-keeping, donations were locked in the safe at the premises. Only the Abbot and the Treasurer ordinarily handled money received.
The revenue of the Association permitted it to pay off the mortgage for the premises in about eight years. The amount repaid was around $385,000.
In the 2016 and 2017 financial years, the Association’s income through donations was $106,222 and $122,686.08 respectively. In the 2018 and 2019 financial years, the Association’s income declined to $47,523.20 and $56,828 respectively.
The sharp decline in the Association’s income is consistent with the cash deposits paid into the Abbot’s bank accounts.
The Abbot’s response
The Abbot provided two affidavits. In his first affidavit affirmed on 18 May 2021, he said that monks of the Theravada Buddhist tradition were bound by the Patimokkha. He described this as an ancient and ongoing code of monastic discipline comprising 227 rules for fully ordained monks.
The Abbot denied that he had engaged in sexual intercourse with any person, or stolen any money or thing from any person.
In his second affidavit affirmed on 11 June 2021, the Abbot said that he did not believe that he had breached any of the rules of the Patimokkha to the extent that an appropriately constituted Sangha would require him to cease to act as abbot of the temple or cease to be a monk. The Abbot denied that he had breached the four rules comprising the parajikas.
He said that he had referred the allegations against him to a Sangha to be called as soon as possible. If the Sangha required him to step down as abbot, he would do so. He stated that no other temple in the greater Melbourne metropolitan area had offered him accommodation during any period in which he may stand down as abbot.
The Abbot’s two affidavits do not address the allegations made against him in any detail. He has not sought to explain or justify the large number of cash deposits made into his private bank accounts. He has not sought to explain or justify his expenditure, or his purchase of the property.
Counsel for the defendants submitted that as allegations of theft and criminal conduct have been made against the Abbot, he would do well to assert his right to silence. If criminal charges were pressed against the Abbot, counsel said that he would ask for this proceeding to be stayed until they were properly dealt with. Counsel said that it was not appropriate to deal with the allegations in detail at this stage.
Undertakings offered by the Abbot
Counsel for the defendants informed the Court that the Abbot was prepared to give undertakings to the Court that:
(a)he would not sell the property without first giving seven days’ notice to the plaintiffs’ solicitors prior to the holding of an auction or the signing of a binding agreement to sell the property;
(b)he would not receive or hold any gifts, whether in money or kind, made to the temple or the Association unless they are payments or gifts made by way of Pachay Boun, which I was informed are gifts in money or kind to a monk for his own support; and
(c)if a Sangha decided that the Abbot was not a fit and proper person to be a monk, he would leave the temple within seven days.
Services at the temple
The Venerable Roserey Ry deposed that he was willing to conduct prayers and services at the temple. Mr Ry has been an ordained Cambodian Buddhist monk for about 25 years. He currently resides at the Wat Khmer Buddhist Temple at Springvale South.
Objection to the plaintiffs’ affidavits
Mr Top is an accredited Khmer interpreter and translator. He deposed that he had spoken to Mr Put, Mr Mom and Ms Chhor, and that he did not consider that any of them had sufficient command of the English language to be able to depose in English.
Mr Top referred to the affidavits of Mokol Chea, Vann Em and Simond Long filed by the plaintiffs which were interpreted by Vanny Ouk. He did not know Mr Ouk, whose name was not in the list of the National Accreditation Authority for Translators and Interpreters (‘NAATI’) certified Khmer interpreters and translators.
Mr Top noted that the affidavit of Mr Ry had been interpreted by Mr Long, who himself required Mr Ouk to interpret for his own affidavit.
The plaintiffs’ affidavits were deposed before an Australian legal practitioner, Mr Ashwin Sivarajah, a solicitor with the legal firm of Logans Barristers and Solicitors (‘Logans’) located in Dandenong. Logans have been instructed in this proceeding since its commencement.
Under s 19(2) of the Oaths and Affirmations Act 2018 (Vic), a court must take judicial and official notice of the signature of an Australian legal practitioner given under s 19(1). Under s 19(3), there is a presumption, unless the contrary is proved, that the deponent signed the affidavit and that the person who witnessed the affidavit was an authorised affidavit taker at the time of taking the affidavit. I am not satisfied that the contrary has been proved.
Most of the plaintiffs’ affidavits were deposed under the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic). Under reg 10, and under s 7(1) of the Electronic Transactions (Victoria) Act 2000 (Vic), an affidavit is not invalid because it takes place by remote witnessing through the use of an audio visual link to observe the signature of the deponent.
Given the administration by the plaintiffs’ solicitor of the oaths and affirmations of the plaintiffs’ witnesses, I will receive their affidavits into evidence, at least for the purposes of the current interlocutory application. Despite Mr Top’s concerns about the ability of Mr Ouk to interpret, I will also receive the affidavits interpreted by Mr Ouk. Although he may not be an accredited interpreter with NAATI, I have no reason to doubt that the affidavits were properly translated by him and deposed before Mr Sivarajah. The statements and translations have not been challenged as incorrect. If the need arises, the translations can be verified by a NAATI qualified translator.
Statutory requirements relating to incorporated associations
One of the main purposes of the Act is to make provision for corporate governance, financial accountability and other matters relating to the rules and membership of incorporated associations.[4] An incorporated association must not secure a pecuniary profit for any of its members.[5] An incorporated association must act in accordance with its rules,[6] which take effect as if they were the terms of a contract between the association and its members.[7] Rules are enforceable, including by application to the Magistrates’ Court.[8]
[4]Act s 1(b).
[5]Ibid s 33(1).
[6]Ibid s 34.
[7]Ibid s 46.
[8]Ibid s 67.
Office holders must not make improper use of their office to gain an advantage for themselves or to cause detriment to the association.[9] They are required to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise acting in the same capacity.[10] Office holders must exercise their powers and discharge their duties in good faith in the best interests of the association and for a proper purpose.[11]
[9]Ibid s 83(2).
[10]Ibid s 84.
[11]Ibid s 85.
The general duties of committee members are set out in the Model Rules, and are similar to those in the Act. In brief, they include:
(a)to comply with the Act and Model Rules;
(b)to act with reasonable care and diligence;
(c)to act in the best interests of the association and for a proper purpose; and
(d)not to make improper use of their position or information acquired by virtue of holding their position to gain an advantage for themselves or any other person or to cause detriment to the association.[12]
[12]Model Rules rr 45(2)–(5).
Interlocutory injunctions
General principles
In Bradto Pty Ltd v State of Victoria, the Court of Appeal confirmed that the critical issues in an application for an interlocutory injunction are:
(a)whether there is a serious issue to be tried; and
(b)whether the balance of convenience favours the grant of the injunction.[13]
[13](2006) 15 VR 65, 67 [4] (Maxwell P and Charles JA) (‘Bradto’). See also Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J); Samsung Electronics Co Ltd & Anor v Apple Inc & Anor (2011) FCAFC 156, 273–4 [53]–[55] (Dowsett, Foster and Yates JJ); Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd [2019] VSCA 318, 37 [106]–[107] (Beach, McLeish and Hargrave JJA).
In addition, the Court should take the course which appears to carry the lower risk of injustice in the event that it should turn out to be ‘wrong’ in the sense of granting an injunction to a party who fails to establish a claimed right at the trial, or in failing to grant an injunction to a party who succeeds at the trial.[14]
[14]Bradto (n 13) 73 [35].
Serious issue to be tried
There is no doubt that there are serious issues to be tried in this proceeding. No party contended otherwise. I have set out some of the serious issues to be tried in the previous reasons. Since then, further serious issues have arisen.
Balance of convenience
The plaintiffs submitted that the balance of convenience favoured the grant of injunctions.
Turning to matters raised by the plaintiffs as to why the balance of convenience favours the grant of an injunction requiring the Abbot to leave the temple, I find that:
(a)the Association is suffering continuing harm to its reputation and to its relationship with the community which it serves;
(b)there are serious allegations that the Abbot has been taking substantial amounts of cash from the Association over a number of years;
(c)it is very likely that the Abbot has engaged in numerous activities without the Committee’s approval, including using temple funds for personal expenses, purchasing a house, making payments to the Cambodian-Australian Buddhist Temple Association, purchasing lottery tickets, airline tickets and hotel accommodation, and making payments to the Department of Immigration;
(d)it is admitted that the Abbot has purchased a home for his own use;
(e)it is very likely that the Abbot made misrepresentations in his application for finance in order to obtain a mortgage;
(f)the Abbot has engaged in civilian employment and obtained NewStart and JobKeeper allowances;
(g)a substantial number of worshippers were denied access to the premises by the Abbot when they attended on 3 April 2021;
(h)if the Abbot remains at the temple, the Court will need to exercise continuing supervision over the parties and the premises during the pendency of the proceeding;
(i)the Association is entitled to security of tenure over its own premises; and
(j)while denying wrongdoing, the Abbot has not responded in any detail to the allegations in the plaintiffs’ affidavits and supporting exhibits concerning his conduct, including the numerous cash deposits paid into his bank accounts over a significant period of time.
The defendants opposed the continuance of any injunctions, and among other things submitted that:
(a)the traditional view is that the Court does not have jurisdiction to interfere with decisions made under the internal rules of voluntary organisations;[15] and
(b)it is exceptional for the Court to restrain an actual or threatened breach of the criminal law.[16]
[15]DEF v Trappett [2015] NSWSC 1840, [69] (Harrison AsJ); Cameron v Hogan (1934) 51 CLR 358, 370–371 (Rich, Dixon, Evatt and McTiernan JJ, Starke J agreeing).
[16]Commonwealth v John Fairfax & Sons (1980) 147 CLR 39 (Mason J); Gouriet v Union of Post Office Workers [1978] AC 435; Corvisy v Corvisy [1982] 2 NSWLR 557 (McLelland J); Attorney-General of Queensland (ex rel Kerr) v T (1983) 8 Fam LR 871 (Campbell CJ, Andrews SPJ and Connolly J); John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 (Gleeson CJ, Kirby P and Priestly JA).
In relation to these submissions, I accept that:
(a)the allegations made as to the Abbot’s fitness to act as a monk can only be dealt with by a Sangha, which is the appropriate means according to the Theravada Buddhist faith;
(b)if the complaints about the Abbot are referred to the police and are the subject of criminal prosecution, they can only be determined by the appropriate criminal court, which is likely to be the Magistrates’ Court; and
(c)courts do not ordinarily grant injunctions to restrain actual or threatened breaches of the criminal law.
Decision as to the balance of convenience
The Court is concerned to uphold the governance and functioning of the Association, and to protect its property from theft, misuse or dissipation. It is not concerned with determining whether the Abbot is a fit and proper person to be a monk – that is a decision for the Sangha or proper religious authority.
The fundamental problem is the loss of confidence, respect and trust for the Abbot by a sizeable part, if not the majority, of the temple community. They no longer accept that he has any religious or moral authority. They do not hold him in good standing.
Supported by the evidence which I have outlined above, they accuse him of stealing a great deal of money from the temple over a number of years, and of using it for his own personal advantage. They accuse him of serious breaches of the Patimokkha.
In the near term, the Abbot will or may face:
(a)complaints to the police and prosecution in the Magistrates’ Court;
(b)the investigations and decision of the Sangha having regard to the complaints referred to it; and
(c)the defence and trial of this proceeding.
In my view, the balance of convenience favours a return to the usual and orderly conduct of worship and prayers in the temple in accordance with the Theravada Buddhist tradition as soon as possible.
During the pendency of this proceeding, and at least until the future situation of the Abbot is known, the usual and orderly conduct of religious services in the temple must be conducted by monks other than the Abbot. This cannot satisfactorily occur whilst the Abbot remains in residence at the premises. This fact alone would deter a substantial proportion of the temple community from coming to the premises for prayers and worship. It would be a major impediment to the future conduct of prayers and services. On the other hand, if prayers and services were conducted by other monks of the Theravada Buddhist tradition, religious services would be accepted by all. Prayers and worship at the premises would return to normal. It is to be expected, if not obligatory, that the monks conducting services are able to reside at the premises. This would be difficult, if not impossible, if the Abbot were to remain in occupation of the residential area of the premises. Monks conducting services at the temple should not be embarrassed or required to intermingle with the Abbot or conduct services with the Abbot in residence.
A second important consideration is the need to avoid disturbances and violence. Police had to be called to attend at the meeting conducted on 22 November 2020. A disturbance occurred on 3 April 2021 during the Khmer New Year celebrations. The Abbot has expressed fear for his own person and obtained an intervention order. Unless the Abbot vacates the temple, it is likely that disturbances and violence may occur again. It is important for all that they be avoided.
A third consideration is the need to protect the security of donations and gifts to the temple, and the temple property generally. The Abbot is accused of taking donations and money from the temple. There is a strong and widespread perception that he has been doing so, improperly, for his own use and advantage. If he is no longer resident at the temple, the perception of a risk to donations and money will be removed. There will be public confidence that donations and gifts will be secured and used for proper purposes. Donations and gifts may increase back to former levels as a result.
I have given consideration to the undertakings offered by the Abbot. They are not likely to restore the temple to its former position as a place of worship for all members of the temple community. They will not overcome the loss of trust and confidence suffered by a significant proportion of the temple community. They will not restore the Association to the position it was in, or restore the conduct of prayers and worship to normality.
A fifth consideration is the absence of loss or prejudice to the defendants. While the Abbot will need to move to alternative accommodation elsewhere, I expect he will be assisted by senior monks to do so. Finding temple accommodation for monks must be a common and routine matter in the Buddhist faith. While he deposes that there is no other temple in greater metropolitan Melbourne willing to accommodate him (at least at present), I am not persuaded that finding alternative accommodation will be all that difficult. I expect that other monks will assist him, pending the result of the Sangha. In any event, the Abbot’s accommodation is of lesser concern, noting that he represented in his loan application that he was buying his home for personal occupation.
It is not suggested that the Abbot will suffer any financial loss by vacating the premises. He does not receive a salary from the Association. None of the other defendants will suffer any prejudice or financial loss. There is no evidence that shows any material injury to any of them.
Under the Act and Model Rules, the Committee would ordinarily decide the matters which I have to decide. The Committee appointed Mr Chhet as the Abbot of the temple, and has the power to remove him.[17] However, it is deadlocked and dysfunctional. It cannot function lawfully or effectively.
[17]Model Rules r 42.
It is essential for the Association to return to constitutional governance in accordance with the Act and Model Rules as soon as this is practicable. A committee election will need to be conducted after the Abbot has vacated the temple. The Association is likely to need external assistance to do so without a melee or confrontation. Court directions are likely to be needed to guide the process.
At the next election, a new committee will be elected to take charge of the affairs of the Association. It will be up to the new committee to determine who will be the Abbot of the temple.
Injunctions against the third to fifth defendants
On 11 February 2021, the Court restrained the third to fifth defendants until further order from acting as the committee of the Association and from permitting or causing any instrument or document to be lodged with the ACNC and Consumer Affairs seeking changes in the registration or recording of office bearers of the Association.
It is plain from the evidence that if the Court had not so ordered, control of the Association and its property would have passed to the second to fifth defendants. They would also have obtained control over the Association’s CBA bank account. Before the injunction was granted, some funds were withdrawn on the instruction of the second to fifth defendants.
It is common ground that the third to fifth defendants have complied with the injunction granted against them.
In my view, it is appropriate to extend the existing injunctions against the third to fifth defendants until the trial of the proceeding or further order. This will preserve the status quo. This reflects the balance of convenience and will avoid the prejudice and disruption which would occur if a charge of control of the Association were permitted without a properly conducted general meeting and election.
Least risk of injustice
The grant of the proposed interlocutory injunctions offers the least risk of injustice pending the determination of this proceeding. Worship and services at the temple will resume on a basis acceptable to all members of the Association. The risk of disturbances and violence between rival groups will be significantly diminished or removed altogether. There will be no material loss to any of the defendants. When a new committee is elected, it will take charge of the affairs of the Association. It will have the task of appointing an abbot for the Association as it sees fit.
Conclusion
The Court will grant interlocutory injunctions operative until the trial of this proceeding or further order restraining the first defendant from acting as the Abbot of the temple or from residing or remaining at the premises after 12 August 2021. This will give the first defendant time to relocate. The injunctions previously granted against the third to fifth defendants will be extended until the trial of the proceeding or further order.
SCHEDULE OF PARTIES
| KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) | First Plaintiff |
| VISAL MOM | Second Plaintiff |
| SEREI PUT | Third Plaintiff |
| MAXWELL ZOR | Fourth Plaintiff |
| - and - | |
| HOUT CHHET | First Defendant |
| SOTHY SAMRETH | Second Defendant |
| KEAT A TE | Third Defendant |
| SONN TOP KIM | Fourth Defendant |
| DARARATH UCH | Fifth Defendant |
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