Loziou v Allen

[2003] NSWSC 565

CITATION:	Loziou v Allen [2003] NSWSC 565
HEARING DATE(S):	19 June 2003
JUDGMENT DATE:	19 June 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Injunction in representative form extended
CATCHWORDS:	ASSOCIATIONS AND CLUBS - procedure in actions by and against - availability of interlocutory injunction against named defendants as representing all members and officers of the club
CASES CITED:	McLelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759; [2002] NSWSC 470 Watts v Hawke and David Syme Co Ltd [1976] VR 707
PARTIES :	Christopher Loziou - First Plaintiff Garry Cavanagh - Second Plaintiff Anthony Allen - First Defendant Edmund Chedra - Second Defendant John Ireland - Third Defendant
FILE NUMBER(S):	SC 3227/03
COUNSEL:	M Condon - Plaintiffs J Boyle, solicitor - Defendants
SOLICITORS:	David H Cohen & Co - Plaintiffs Boyle Associates - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 19 JUNE 2003

3227/03 CHRISTOPHER LOZIOU & ANOR v ANTHONY ALLEN & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: On 10 June 2003 I gave an ex parte injunction to prevent the submission to a meeting, which was due to take place that night, of a resolution which, in broad terms, sought to expel the plaintiffs from Horace Thompson Lodge Ryde, a Masonic Lodge.

2 The basis of that ex parte order was that there was a serious case to be tried concerning whether the procedures of the rules, incorporating as they do requirements of natural justice, had been complied with.

3 The matter was returnable today. It came before me this morning in the Duty Judge list. Before Court this morning, the defendants served several affidavits on the plaintiff. While the affidavits were to a large extent repetitive, one of them still was forty-odd pages long. As well, there were some detailed written submissions which were prepared by Mr Boyle, solicitor for the defendants.

4 I stood the matter down to 2.00pm to enable the plaintiffs’ counsel to absorb this material.

5 The injunction which I granted on the 10th, is an injunction that will expire at 5.00pm this evening. The plaintiffs move today to extend the injunction until Friday of next week, so that they can have the opportunity to put on material in response to the evidence which was served today.

6 Pursuant to directions which I gave on the 10th, the plaintiffs have prepared an outline of submissions, which has been served on the defendants which itemises the aspects in which they allege that the charges which they are asked to answer are not ones which comply with the requirements of the constitution and the rules of natural justice.

7 The document outlines several respects in which the plaintiffs allege that the charges fail to so comply.

8 In the circumstances, where the application before me is one which is not a full fledged interlocutory injunction, it is not appropriate for me to go into the detail of exactly how and why, and to what extent, those charges are made out. It suffices to say for present purposes that it seems to me there is a serious question to be tried about whether the procedures of the constitution and the rules of natural justice have been complied with.

9 That then leaves the question of the balance of convenience. The continuance of the injunction, even until next Friday, was opposed by the defendants. It is not as though anything particular is, according to the evidence which they have presented, going to happen in the next week or that there is any desire on their part to do anything in the next week.

10 The matter, if stood over until Friday of next week, will then be able to proceed as a proper interlocutory hearing, if that is what the parties still wish to have at that time.

11 There is one procedural matter which has been raised by the defendants. It is a matter which I should consider at this stage. The proceedings as presently constituted are ones which name as the defendants three people who hold various offices within the Lodge. The order that was sought, and which was made on 10 June, was an order pursuant to Supreme Court Rules Part 8 rule 13 that the defendants represent all of the members and officers of the Lodge, and that the order bind all members and officers.

12 Today, the solicitor for the defendants has questioned whether it is possible to have such an order.

13 Texts, both old and new, accept the view that it is possible to have an injunction against voluntary unincorporated associations. Kerr, Law and Practice of Injunctions, 6th edition (1927) says at 584:

“The court has jurisdiction to restrain the committee or a general meeting of a club (not being a proprietary club) from expelling a member of the club...”

14 Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition (2002), paragraph 21-280 to paragraph 21-325, deal with injunctions against unincorporated associations. At those paragraphs, the learned authors trace the history of this area of the law, from its early dependence upon a requirement that a plaintiff have a proprietary interest in assets of the club if he or she were to succeed in obtaining an injunction, to the situation which the learned authors now say is the appropriate basis for injunctions against voluntary unincorporated associations, namely, enforcement of a contractual negative stipulation contained in the rules of the club.

15 When the basis of the modern jurisdiction to grant an injunction against a voluntary unincorporated association is the enforcement of a negative stipulation in the rules, it is, it seems to me, possible to have a representative order which binds all the people who have made a contract in like terms. There are many examples of injunctions being granted against treating an expulsion from a club as valid - some of them are collected in McLelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759; [2002] NSWSC 470 at [82].

16 There may be some circumstances in which the difficulties of enforcement of an injunction in such terms might mean that it is desirable to either join, or serve, all the people who are so injuncted or who were bound by such an injunction. Ordinarily, if the office-bearers of an association are injuncted from treating a particular proceeding of the organisation as valid, that will in practical terms suffice to ensure that it is not treated as valid by anyone else.

17 While it would be desirable to give further consideration to the appropriateness of this form of creating an injunction, it seems to me that there is a sufficient case available for it, for present purposes, of an injunction which is designed to last a week.

18 This submission questioning the possibility of an order of the kind now on foot was coupled with the observation that it is not necessary, under the rules, for the three people named as defendants to call or take part in any meeting which resolved to expel the plaintiffs. The need for the Court to be able to make an effective interlocutory order which protects the plaintiffs from expulsion while the case is being prepared, heard and considered, supports the validity of the form of order actually made. I also bear in mind, in this connection, that once the validity of a decision by an unincorporated association is in issue in pending civil proceedings, any attempt to investigate and adjudicate upon that decision by a domestic disciplinary tribunal at the association can be a contempt of court: Watts v HawkeandDavid Syme Co Ltd [1976] VR 707.

19 In like fashion, it seems to me that if any person, even if not validly bound by an injunction against office-bearers, took steps, with knowledge of the injunction, to circumvent it, that person could be guilty of contempt of court.

20 So far as the balance of convenience goes, the balance favours the continuance of the injunction.

21 Upon the plaintiffs giving to the court the usual undertaking as to damages, I extend orders 2 and 3 of the orders made 10 June 2003 to and including 5.00pm Friday 27 June 2003.

22 I direct the plaintiffs to file and serve any supplementary evidence on which they seek to rely by 4.00pm Tuesday 24 June 2003. I appoint 27 June 2003 before the duty judge for the further hearing of the matter. These orders may be entered forthwith.

23 For abundance of caution, the order made on 10 June 2003 is one which, it seems to me, is an order made in relation to the proceedings as a whole, and not in relation to the particular injunctions which were made on that day. It, therefore, continues to have effect.

24 I grant liberty to either party to apply on two days’ notice to the duty judge.

25 There are some facts which I should record as they might, in future, be relevant to costs. The first is that when these proceedings were started, the plaintiffs had not written any letter before action direct to the defendants, though a letter had been written, which is contained in Exhibit A, on 10 June 2003 addressed to the Grand Secretary of Freemasons. Secondly, on 11 June, Mr Boyle was requested to accept service of the documents, but he did not have instructions to accept service. The three defendants were, therefore, served personally. They were not served before Sunday last, which was some days late.

26 Today, Mr Boyle appeared for all three defendants. As mentioned in my earlier judgment, he made available this morning to counsel for the plaintiffs three affidavits and an outline of submissions. In my view, it would not have been practical for counsel to have dealt with those documents on the run. It was necessary to have an adjournment until two o’clock to enable the matter to proceed in the light of them.

27 I also note, as would be apparent from my reasons for judgment that, faced with this prospect of consenting to an extension of the injunctions for the short period until next Friday, the defendants chose to oppose that course.

(Mr Condon informed his Honour that the plaintiffs did not know when the defendants were served. Mr Boyle advised that he did not refuse to accept service but had written a letter saying he had been instructed not to accept service.)

HIS HONOUR: Having dictated the previous paragraphs of these reasons, the legal representatives wish me to make two qualifications to them, which I now do. The first is that the plaintiffs do not know of their own knowledge when it was that the defendants were served - the plaintiffs say that they gave the documents to their process server on Friday. The second is that Mr Boyle did not refuse to accept service, but rather wrote a letter saying he had no instructions to accept service. (Mr Boyle asked his Honour to direct that affidavits of service be filed.) I decline to give any such direction.

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Last Modified: 07/07/2003