Mann v Cockburn Power Boats Association (Inc)
[2005] WASC 131
MANN -v- COCKBURN POWER BOATS ASSOCIATION (INC) [2005] WASC 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 131 | |
| Case No: | CIV:1129/2005 | 10 JUNE 2005 | |
| Coram: | MASTER SANDERSON | 17/06/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FREDERICK BRUNO MANN COCKBURN POWER BOATS ASSOCIATION (INC) |
Catchwords: | Practice and procedure Application to strike out part of affidavits Turns on own facts |
Legislation: | Nil |
Case References: | Nil Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988 Juson Pty Ltd, In the matter of (1992) 8 WAR 13 Lens & Ors v Johnson & Anor, unreported; SCt of WA; Library No 990011; 22 January 1999 Lewkowski v Bergalin Pty Ltd, unreported; SCt of WA; Library No 7767; 26 May 1989 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 2 WLR 1212 Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COCKBURN POWER BOATS ASSOCIATION (INC)
Defendant
Catchwords:
Practice and procedure - Application to strike out part of affidavits - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr J G Kitto
Defendant : Ms P E Cahill
Solicitors:
Plaintiff : Kitto & Kitto
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Juson Pty Ltd, In the matter of (1992) 8 WAR 13
Lens & Ors v Johnson & Anor, unreported; SCt of WA; Library No 990011; 22 January 1999
Lewkowski v Bergalin Pty Ltd, unreported; SCt of WA; Library No 7767; 26 May 1989
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 2 WLR 1212
Westpoint Management Pty Ltd v Goakes [2002] WASCA 317
(Page 3)
1 MASTER SANDERSON: By chamber summons filed 11 April 2005, the plaintiff sought production of certain books and records by the defendant, an order restraining the defendant's solicitors from continuing to act on behalf of the defendant and an order striking out certain parts of two affidavits filed by the defendant in these proceedings. After an initial directions hearing, the matter came on before Commissioner McKerracher QC on 21 April 2005. The learned Commissioner made certain orders with respect to the production of documents and ordered that the remaining two questions be listed before a Master. The matter was duly listed for a special appointment on 10 June 2005. For various reasons not presently relevant, the application for the restraint against the defendant's solicitors could not proceed on the scheduled date. However, the parties agreed that the question of the admissibility of certain parts of the two affidavits should be determined with the application relating to the defendant's solicitors stood over.
2 The two affidavits in question are an affidavit of James Thomas Dabelstein, sworn 4 March 2005 and an affidavit of Bryan Richard Cox, sworn the same day. To understand the nature of the objections raised by the plaintiff, it is necessary to say something about the matters at issue between the parties. This can conveniently be done by reference to the statement of claim.
3 The defendant is an incorporated association which, as the name suggests, provides facilities for power boat owners in the Cockburn area. At all material times prior to 28 October 2004, the plaintiff was a member of the defendant and a member of its Management Committee. By par 3 of the statement of claim, it is pleaded that, pursuant to cls 10, 11 and 49 of the defendant's Constitution, the defendant was to be managed exclusively by the Management Committee. By par 4, it is pleaded that, in contravention of the Constitution, a body entitled the "Executive Committee" effectively managed the defendant. By par 5, the plaintiff says that, by written notice to a general meeting on 12 October 2004, the plaintiff tabled for discussion a motion expressing his belief that the Executive Committee was operating the affairs of the defendant in contravention of the Constitution. By par 6, the plaintiff says that, at the same meeting, he alleged that the election to life membership of one Darryl Caddy was invalid because it was not in accordance with the Constitution. The two matters referred to in pars 5 and 6 of the statement of claim are defined as "the Plaintiff's Issues". By par 7, it is pleaded that, pursuant to cl 31 of the Constitution, a body known as the "Complaints Committee" (which presumably was constituted under the provisions of the Constitution), could discipline certain members of the defendant. The
(Page 4)
- limited penalty provisions available to the Complaints Committee included the power to expel a member from the defendant. By pars 8 and 9, it is pleaded that three complaints were lodged against the plaintiff. By par 10, it is pleaded that all three complaints were defective. Extensive particulars of the alleged defects in the complaints are provided. By par 11, it is said that, notwithstanding the defects in the complaints, the defendant purported to convene a Complaints Committee meeting. This, it is alleged, was ultra vires and any consequent decisions were void.
4 Paragraph 12 pleads that, on 27 October 2004, the Complaints Committee held a hearing. Paragraph 13 pleads the persons who comprised the Complaints Committee. Paragraph 14 alleges that, by reason of their relationship to the plaintiff and the nature of the complaints made against him, two members of the Complaints Committee "had a vested interest in the outcome" of the disciplinary hearing and, therefore, there was a reasonable apprehension of bias. By par 15, it is said that the Complaints Committee proceeded with their hearing in the face of this reasonable apprehension of bias on the part of the plaintiff.
5 Paragraphs 16 to 18 plead that the plaintiff sought to be represented at the disciplinary hearing by counsel, but this request was refused. For this reason, and because of the apprehension of bias earlier referred to, the plaintiff alleges that the hearing was conducted unlawfully and that the findings were void. Paragraphs 20 and 21 detail the findings of the Complaints Committee and repeat the claim that the findings were void. Paragraphs 22 and 23 deal with an appeal the plaintiff said was instituted and improperly rejected by the defendant.
6 By way of relief, the plaintiff seeks, inter alia, an interim injunction restoring him to full membership pending determination of the action. He seeks a series of other declarations relating to the administration of the defendant, but for present purposes these are not relevant. The affidavits to which I have made reference were filed in opposition to the plaintiff's application for the interim injunction.
7 The plaintiff's application for the injunction was supported by his affidavit sworn 22 November 2004. That affidavit, in pars 2 to 6, provides what is described as "Background to Dispute". Mr Dabelstein is identified as the commodore of the club. Thereafter, the affidavit really repeats what is in the statement of claim. The plaintiff annexes to his affidavit as annexures FBM3 and FBM4 copies of the three complaints made against him. He does nothing more than annexe these complaints and allow them to speak for themselves. He then details what occurred at
(Page 5)
- the hearing on 27 October 2004 and he notes his expulsion. He does so by annexing as FBM5 a copy of the letter from the defendant expelling him from membership. He then details his appeal and the defendant's response. In pars 22 and 23, under the heading "Prejudice to Plaintiff", he outlines why he wants his membership of the club restored on an interim basis. In summary, he says that he wants to use the defendant's facilities and if he is not permitted to do so, he will have to use alternative facilities at added cost and inconvenience.
8 It is appropriate at this point to pause and identify just what are the issues between the parties. In his written submissions, counsel for the plaintiff identified the issues as follows:
(a) were the documents initiating the complaint process defective: par 10 of the statement of claim;
(b) did the defendant's Complaints Committee act with an apprehension of bias: par 14 of the statement of claim;
(c) did the denial of legal representation breach the plaintiff's contractual entitlements and the rules of natural justice: par 18 of the statement of claim;
(d) was the defendant's denial of the plaintiff's appeal contrary to the Constitution and to the rules of natural justice?
- (Counsel also identified as an issue whether the penalties imposed by the Complaints Committee were ultra vires. As I understand the statement of claim, if, for any of the reasons pleaded, the Complaints Committee acted improperly, then the penalty could not stand. If the plaintiff succeeds with his arguments, or any one of them, then, as is alleged in the statement of claim, the determination is "void" and the penalty must automatically fall away. As I read the pleading, there is no separate claim that if the Complaints Committee was properly constituted and the procedure adopted was proper, then the penalties themselves were beyond the power of the Complaints Committee. The result is that there are four issues which will ultimately have to be determined by the Court.)
9 The principles applying to interlocutory injunctions are well understood. The plaintiff must establish that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction. Given the nature of the issues between the parties, it is difficult to see that there is much by way of evidence that either party could lead which would bear upon the question of whether there is a serious question to be tried. The starting-point in this case is the Constitution of the defendant. It is necessary to look and see how
(Page 6)
- complaints are initiated and how they are handled. Given that it is alleged by the plaintiff that certain members of the Complaints Committee as constituted had vested interests, evidence as to what those vested interests might have been clearly needs to be put before the Court. But it is difficult to see how evidence of the "who said what to whom" type could be relevant to this claim. The parties do need to give evidence in relation to the balance of convenience. The plaintiff has done that succinctly. The defendant says that it, too, in the affidavits of Mr Dabelstein and Mr Cox, has provided evidence which is relevant to the question of the balance of convenience. The plaintiff disagrees. He says that the evidence is inadmissible for various reasons, but, perhaps more importantly, it is irrelevant.
10 The two affidavits in question are relatively short. Both affidavits are six pages. The plaintiff complains about a large number of paragraphs. It is not necessary for me to go through each individual paragraph and deal with the particular complaint. It will be enough if I quote a limited number of paragraphs and explain by reference to these paragraphs why the plaintiff says they should be struck out.
11 Paragraph 25 of Mr Dabelstein's affidavit is in the following terms:
"On or about 15 October 2004 Roberta Loughton approached me and said that a female member (Megan Gray) had told her that she heard that I had said that a group of female members of the Association, including Ms Gray and Judy Frederickson, were … ('the comment')."
12 The plaintiff's first complaint is that this paragraph is hearsay upon hearsay. It is said that, even allowing for the admission of hearsay evidence in interlocutory matters pursuant to O 37 r 6 of the Rules of the Supreme Court1971 (WA), this paragraph is unacceptable. With respect, I am not satisfied that is the case. If the paragraph had said that on or about 15 October, Roberta Loughton approached Mr Dabelstein and told him certain things, then no objection could have been taken to the paragraph. Doubtless, were Mr Dabelstein giving evidence in the witness box, that is what his evidence would be. But the fact that he recounts what is said to him is, in my view, of no significance. He is not attempting to lead that evidence to establish the truth of what was said. He is simply leading the evidence to establish what motivated him to do certain things. Seen in that light, in my view, no objection to the admissibility of the evidence can be sustained.
(Page 7)
13 The further question is whether or not the evidence is relevant. As counsel for the plaintiff submitted, it goes to no issue between the parties. Mr Dabelstein was one of the persons who made a complaint against the plaintiff. But there is no suggestion that, in making the complaint, Mr Dabelstein was motivated by malice so as to vitiate the complaint. It is the procedure for dealing with the complaint about which the plaintiff complains, not the complaint itself. On that basis, it is said that par 25 is irrelevant and ought not stand.
14 The plaintiff's complaint that much of the affidavit material is irrelevant can further be illustrated by reference to par 35 of Mr Cox's affidavit. In that paragraph, Mr Cox is dealing with the alleged conduct of the plaintiff after his expulsion. By way of an example, in par 35(a), Mr Cox alleges that the plaintiff:
"(a) Displayed, or caused to be displayed, a placard exhibiting allegations against the defendant near the defendant's premises … "
15 Counsel for the plaintiff maintained that this allegation and indeed all of the allegations found in par 35 were irrelevant. It was said they had nothing to do with any matter to be determined when the application for the interlocutory injunction was considered.
16 Counsel for the defendant submitted that the two paragraphs to which I have referred, and all other paragraphs complained of, were relevant to the balance of convenience. With respect to par 25 of Mr Dabelstein's affidavit, she said that the paragraph provided a narrative background to what had occurred. That, she said, was important to understand the context on which the expulsion order had been made. So far as par 35 of Mr Cox's affidavit was concerned, counsel submitted that the behaviour of the plaintiff subsequent to his expulsion was relevant to determining whether or not it would be workable to have the plaintiff reinstalled as a member of the defendant pending determination of the plaintiff's claim.
17 The inclusion of irrelevant material in affidavits filed in this Court is a real and consistent problem. Too often, those drawing the affidavit do not give proper consideration to the issue to which the evidence of the deponent is directed. The result is prolix affidavits which do much to disguise rather than highlight to relevant evidence. Such affidavits necessarily increase costs and make determination of the real issues, and the evidence bearing upon those issues, much more difficult to determine.
(Page 8)
- It is a fundamental skill of a competent solicitor to draw an affidavit which contains only relevant, admissible evidence.
18 Once an affidavit containing irrelevant material is filed, the solicitor for the party who is to respond is faced with a dilemma. Either an affidavit must be filed which responds to each and every matter raised in the earlier affidavit, or the response is directed only at the relevant material. It is at this point a judgment must be made. The proper approach is to reply only to the relevant material. That calls for professional skill on the part of the solicitor concerned; but that professional skill ought be exercised. There is no excuse for responding to irrelevant material.
19 Of course, there is the option for a party confronted with a raft of irrelevant material to apply to strike out that material, either prior to the scheduled hearing of the application, or at the application itself. That course presents some difficulties. If a separate application is taken, it results in increased costs and delays. Such a course should only be adopted as a last resort. Generally, complaints about affidavits can be alluded to in the written submissions, addressed at the commencement of the hearing and dealt with as necessary during the course of the hearing. Otherwise, at the hearing reference can be made to the relevant parts of the affidavit material, leaving what is irrelevant to one side. The course chosen is again a judgment to be made; it is a part of the professional skill and care of a solicitor.
20 In this case, I am satisfied that the defendant's affidavits should stand. The plaintiff's complaint about relevance is not without substance - far from it. But, in my view, a fair reading of the affidavits leads to the conclusion that the defendant is raising matters which are relevant to the exercise of the Court's discretion when determining whether or not the balance of convenience favours the grant of an injunction. It has to be said that much of the material is of, at best, peripheral relevance. But it is not so irrelevant as to be mischievous. The plaintiff will not have to respond to the bulk of it. In this case, the defendant should have the opportunity to put before the Court all material which it says bears upon the issue of the balance of convenience. I would therefore not strike out the paragraphs of the affidavits complained of.
21 I will hear the parties as to the precise form of orders and as to costs.
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