Moala v Free Wesleyan Church of Tonga in Australia (Vic) Inc (No 6)

[2022] VSC 538

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 04742

CHRISTINE MOALA	Plaintiffs
(and others according to the Schedule attached)
v
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC (Reg No. A0022699W)	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 September 2022
CASE MAY BE CITED AS:	Moala v Free Wesleyan Church of Tonga in Australia (Vic) Inc (No 6) (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VSC 538

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COSTS – Churches – Incorporated Association – Challenge to rejection of membership applications – Whether challenge could be made in existing proceeding – Challenge determined in existing proceeding, but unsuccessful - Defendant awarded part of costs – Supreme Court Act 1986 s 24, Civil Procedure Act 2010 s 65C, Supreme Court (General Civil Procedure) Rules2015 rr 62.02, 62.04.

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APPEARANCES:	Counsel	Solicitors
For the fifth, fourteenth and twenty-sixth Plaintiffs	Mr T Sowden	Reichman & Co
For the Defendant	Mr N Elias	Prolegis Lawyers

HIS HONOUR:

1. This costs judgment follows my judgment dismissing the application made by the fifth, fourteenth and twenty-sixth plaintiffs (the ‘three plaintiffs’) under ss 67 and 68 of the Associations Incorporation Reform Act 2012.[1] That judgment concerned the extent of the power of the defendant’s Management Committee in respect of membership applications.

   [1]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (No 5) [2022] VSC 335.

1. I did not accept the three plaintiffs’ case that the Management Committee had invalidly rejected applications for membership. However, I doubted that all 116 applicants, whose applications were rejected, should have been requested to attend interviews with the Management Committee.[2]

   [2]Ibid [77].

1. The three plaintiffs submitted that there should be no order as to costs. They relied on my acceptance of their submission that their challenge to the rejection of the membership applications could be made in this proceeding rather than the Court requiring them to commence a new proceeding in the Magistrates’ Court, as the defendant submitted was appropriate. They also argued that their application was not wasted because the Court gave directions regarding the way in which membership applications should be considered.

1. The defendant submitted that costs should follow the event because the three plaintiffs’ applications had been unsuccessful. It was not a case where the parties enjoyed mixed success because the three plaintiffs were unsuccessful in establishing a breach of the rules, nor did they establish that the defendant had engaged in oppressive conduct. It also relied on the fact that during the hearing, I stated that the three plaintiffs needed to understand the possible costs consequences for them if their application was unsuccessful.

1. The defendant submitted that it had not argued that the three plaintiffs’ application had to be made in a new proceeding commenced in the Magistrates’ Court. It had only suggested that that would be required if factual questions had to be determined about the membership status of the 116 rejected applicants or the Management Committee’s conduct. However, in my opinion, the defendant did submit that the three plaintiffs’ application was not properly brought under the 18 April 2019 order, and did submit that it should be brought in a new proceeding in the Magistrates’ Court.[3] I decided that the three plaintiffs’ application could be made and determined in the existing proceeding by way of enforcement of the order of 18 April 2019 and clause 1(f) of the mediation agreement.[4] In addition I stated that to do so would achieve the overarching purpose contained in s 7(1) of the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[5] While costs usually follow the event, I consider in this case that it is appropriate to decide the question of costs taking into account that the three plaintiffs succeeded on the issue of whether their application could be made in the existing proceeding.

   [3]Transcript of Proceedings, Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (No 5) (Supreme Court of Victoria, S CI 2015 04742, Ginnane J, 25 October 2021) 34.29-35.10, 35.15-35.21, 36.13-36.21.

   [4]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2022] VSC 335, [41].

   [5]Ibid [42].

1. In addition, it is appropriate in the exercise of the costs discretion to consider the significance of the issues that I was required to consider in the overall context of this unfortunate litigation. The previous steps in the litigation had led to the stage where a Management Committee had been elected and had the responsibility of deciding whether to accept applications for membership of the Association. A dispute arose as to how the Management Committee should approach decisions about whether to accept applications for membership. The three plaintiffs’ application, at least in part, sought direction from the Court as to how the Management Committee should deal with membership applications and what procedures it should follow. While they did not establish that membership applications had been invalidly rejected, I found it necessary to consider the extent of the Management Committee’s powers on the subject matter of membership applications. That consideration, and my conclusions, may assist the defendant and applicants for membership in the future. While the defendant succeeded in having the three plaintiffs’ application dismissed, a broader view of the issues makes it appropriate in the exercise of the costs discretion to award the defendant only part of its costs.[6]

   [6]Supreme Court Act 1986 s 24; Civil Procedure Act 2010 s 65C; Supreme Court (General Civil Procedure) Rules 2015 rr 63.02. and 63.04.

1. I will order that the three plaintiffs who brought the application, the fifth, fourteenth and twenty-sixth plaintiffs, being Ana’uta Grima, Tevita Kafoika and Sione Militoni Halahala, pay half the defendant’s costs of those plaintiffs’ application for orders under ss 67 and 68 of the Associations Incorporation Act, on a standard basis to be assessed by the Costs Court in default of agreement.

SCHEDULE OF PARTIES

CHRISTINE MOALA	First Plaintiff
HANITELI TAUATEVALU	Second Plaintiff
TUIA VEA	Third Plaintiff
TOAKASE KALU	Fourth Plaintiff
ANA’UTA GRIMA	Fifth Plaintiff
LATUSILATOLU TAUNISILA	Sixth Plaintiff
PITA OFAMO'ONI	Seventh Plaintiff
VIKA TAUTALANOA	Eighth Plaintiff
SITIVENI FA	Ninth Plaintiff
APIKALE FA	Tenth Plaintiff
MELE LOISI LATU	Eleventh Plaintiff
VAI PAUA	Twelfth Plaintiff
SEMISI PAUA	Thirteenth Plaintiff
TEVITA KAFOIKA	Fourteenth Plaintiff
ANA FINAU	Fifteenth Plaintiff
FISI’IAHI TU’ULAKITAU	Sixteenth Plaintiff
SITANI FALEPAINI	Seventeenth Plaintiff
EMELI FALEPAINI	Eighteenth Plaintiff
FALEPUNA KAFOIKA	Nineteenth Plaintiff
MELE LINO	Twentieth Plaintiff
MOHELATA WALLS	Twenty-first Plaintiff
SENETI TAUFA	Twenty-second Plaintiff
POUSIMA TAUFA	Twenty-third Plaintiff
MAKA TU’ULAKITAU	Twenty-fourth Plaintiff
FOHE TAUTALANOA	Twenty-fifth Plaintiff
SIONE MILITONI HALAHALA	Twenty-sixth Plaintiff
MARYANNE FORD	Twenty-seventh Plaintiff
TUIPULOTU OFAHENGAUE	Twenty-eighth Plaintiff
VILI OFAHENGAUE	Twenty-ninth Plaintiff
KOLINI TAUFA	Thirtieth Plaintiff
AND
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC	Defendant