Moala v Free Wesleyan Church of Tonga in Australia (Vic) Inc (No 7)
[2022] VSC 599
•30 September 2022
| 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: | 30 September 2022 |
DATE OF JUDGMENT: | 30 September 2022 |
CASE MAY BE CITED AS: | Moala v Free Wesleyan Church of Tonga in Australia (Vic) Inc (No 7) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 599 |
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CHURCHES – Incorporated association – Annual General Meeting – Special resolution to introduce a new constitution changing the membership rules – Plaintiff concerned that rule changes will alter the balance of power in the association – Membership applications yet to be determined – Allegations of oppressive conduct – Injunction sought to prevent the special resolution being voted on – Interlocutory injunction refused – Associations Incorporation Reform Act 2012 ss 67, 68.
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APPEARANCES: | Counsel | Solicitors |
| For the Fifth Plaintiff | Mr T Sowden | Reichman & Co |
| For the Defendant | Mr T Messer | Prolegis Lawyers |
HIS HONOUR:
Before the Court is a summons raising a further dispute in this unfortunate litigation. The summons, which I will treat as having been issued on behalf of the fifth plaintiff, Ms Ana’uta Grima, seeks interlocutory injunctions preventing the defendant association from conducting its annual general meeting tomorrow and that the association be prevented from doing so until 1 December or further notice.
The order principally sought, as argument developed, was an interlocutory injunction preventing the defendant from proposing or voting on the special resolutions referred to in its notice of annual general meeting dated 4 September 2022 until further order. An order was sought to compel the defendant to process any applications for membership lodged with the association this month under the existing rules (the ‘Rules’). Seventy-five such applications were lodged on 19 September.
An order was also sought, pursuant to s 67 of the Associations Incorporation Reform Act 2012 (the ‘Act’), and Section 4 of Part I of the Rules, compelling the defendant to provide Ms Grima with access to the register of members.
This dispute arises, at least indirectly, from orders that I made on 18 April 2019, that cl 1(f) of the mediation agreement be varied to require that the committee hold a meeting at which each and every application for membership would be considered and determined in accordance with the Rules by no later than 14 December 2019.
Delays, many due to COVID, have meant that it has taken longer than anticipated for membership applications to be considered. The rejection of 116 applications caused a dispute which led to my judgment on 17 June this year.[1] I was told from the bar table that some of the 75 applicants are people making a second, or third, application for membership. Ms Grima’s evidence is that none of those applicants have received any correspondence from the association, or acknowledgement of their application.
[1]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (No 5) [2022] VSC 335.
The notice of annual general meeting states that part of the matters to be considered at the meeting to be conducted tomorrow at Sunshine West is that the meeting resolve by special resolution that the association, in accordance with Section 7 of Part II of the Rules and s 50 of the Act, amend the current rules of the association by replacing it with the constitution in the form circulated with the notice.
The current rule dealing with membership states:[2]
As a religious body, a person who accept[s] the doctrines of the said Church through baptism within the Church, truly acceptance of Christ and willing to become an active member of the Church, will be eligible to be a member of the Church.
There is no entrance fee or annual subscription to be paid to become a member of the Church.
[2]Section 3 of Part I of the Rules.
The proposed new constitution is more elaborate, and in cl 7 contains a new membership rule that:
A person is qualified to be a Member if the person:
(a) has been baptised;
(b) has given a testimony in person before a Class group;
(c) has given a testimony in person before the Local Church Group;
(d)has given a testimony in person before a quarterly gathering of the Full Church Group;
(e)is a natural person;
(f)is 18 years of age and over;
(g)agrees to be bound by this Constitution;
(h)subscribes to the Statement of Faith; and
(i)has applied and been approved for Membership of the Association under clause 8.
Clause 8 provides for the manner in which the committee must consider membership applications and in cl 8.2:
As soon as practicable after receiving an application for Membership, the Secretary must refer the application to the Committee. The Committee will determine whether to approve or to reject the application.
So, in that context, Ms Grima argues that the proposed constitution introduces or reintroduces Lotu Fehu’i as a requirement of membership. Lotu Fehu’i is a term that the Church applies to particular persons with experience and acceptance in the Church. In the principal judgment in this proceeding,[3] I said that the term Lotu Fehu’i translates to ‘prayer requester’, which is a reference to the fact that Lotu Fehu’i are people who have begun their spiritual journey and require the help of prayers.[4] The status of Lotu Fehu’i is open to ‘anyone who wants the truth about Godly life and who participates in the meetings to share and have discussion with his/her fellow peers’.[5] They are required to meet monthly with the minister or a lay preacher for counsel and support. In order to obtain Lotu Fehu’i status, one must make a solemn commitment to obey the rules of the Church and must be a trainee for one month. A person will be appointed Lotu Fehu’i if their character and conduct are assessed as satisfactory by the minister. Once a person becomes Lotu Fehu’i, they are unable to consume alcohol, have premarital relations, go dancing, or gamble. One witness said:[6]
I suppose when you become a Lotu Fehu’i you place yourself under the spiritual authority of the church and of the president or the minister of the church. Like I said before, you feel like you belong. There’s a sense of belonging.
[3]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205.
[4]Ibid [8].
[5]Ibid [9].
[6]Ibid [10].
Ms Grima states that the proposed constitution reintroduces Lotu Fehu’i as a requirement for membership because:[7]
…at part 2 of the proposed constitution applicants are required to give testimony in person before a class group, a local church group and a quarterly gathering of the full church group.
…
Moreover, control of the process (in contrast to the requirements governing membership under the current rules) would vest in the committee and who determine respectively the local church group and class groups. As matters stand neither the committee nor the minister has had any role whatever in approving or otherwise allotting individuals who attend the Werribee Church to either class groups or a local church group.
[7]Affidavit of Ana’uta Grima affirmed 27 September 2022, [8].
Ms Grima states that she has not been allotted to a class group or a local church group.[8]
[8]Ibid.
To amend the existing rules and replace them with the proposed constitution, the defendant requires a 75 per cent majority at the general meeting ‘at which notice of the proposed amendment shall have been given’.[9] Ms Grima expressed concern that in seeking to amend the constitution before the defendant has considered the applications for membership of the Werribee congregation, the defendant will introduce criteria for membership that they have agitated for unsuccessfully at the trial of this proceeding, and that the Werribee congregation will be ‘further ostracised by the incumbent [committee]’,[10] and that the whole point of the orders made by the Court on 18 April 2019 will be undermined.
[9]Section 7 of Part II of the Rules.
[10]Affidavit of Ana’uta Grima affirmed 27 September 2022, [10].
On the basis of that evidence, counsel for Ms Grima submitted that it was necessary to preserve the status quo, and that the effect of the proposed changes to the rule will result in an irreparable injustice, that will vest further powers in the committee of management in determining membership. The effect of this will be to permanently lock out those in Ms Grima’s camp from becoming members of the association. It would be contrary to the interests of the members as a whole.[11] It is important to consider the interests not only of existing members but of people who were entitled to, and have applied to, become members.
[11]Millar v Houghton Table Tennis & Sports Club Inc (2003) 225 LSJS 241; [2003] SASC 1.
Counsel also submitted that the 75 applicants would suffer irreparable harm if their applications were assessed under the proposed new rules. That issue was addressed in depth in submissions, with the result that counsel for the defendant has assured the Court that it will consider those 75 applications under the existing rules. In my opinion, and speaking only provisionally, as this is an interlocutory application, I consider that to be the correct approach. I refer to Professor Dal Pont's consideration of the temporal effect of rule amendments in his text Law of Associations.[12] So I put that issue to one side.
[12]G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018), 154-155.
The next point is to note the timetable of events that are relevant to the determination of Ms Grima’s summons. I delivered my judgment about what I considered was necessary for proper consideration of membership applications on 17 June. On 4 September, notice of the annual general meeting was given. And on 19 September, the 75 applications were lodged. The meeting is to be held 12 days later, tomorrow, 1 October.
Since my decision on 17 June, there has been no further challenge to the rejection of any membership application.
Ms Grima argues that the conduct of the defendant in connection with the present issues is oppressive within the meaning of s 68(1) of the Act, which provides that:
A member...may apply to the Magistrates' Court for an order under this section on the ground that the association has engaged, or proposes to engage, in oppressive conduct.
The association has power to amend its rules as is provided by Section 7 of Part II of the current rules, which requires a majority of 75 per cent of members present at the general meeting.
Different factions, even in a church, may have different views about what are the appropriate provisions of a constitution or governing rules. But I have to treat this application as one made by an incorporated association, which is subject to, but is only subject to, the provisions of an Act of Parliament and the rules that have been adopted. It would be wrong to express any personal views about the appropriateness of any amendment. I can only apply the law as it is.
The association has made the point that it must hold an annual general meeting every calendar year, and that the provisions of the charities legislation require it to do so, with consequences if it does not.[13] The defendant submits that there is no evidence that it has engaged in, or may engage in, oppressive conduct; that rather, it is proposing to conduct an annual general meeting, as it must, and will put the special resolution to the vote at that meeting with the result not known.
[13]Australian Charities and Not-for-profits Commission Act 2012 (Cth).
The defendant submits that it has not failed to consider the applications for membership in any timely or invalid way, and that in any event, because of the provisions of model rule 13(2)(b), that any person who might have been determined to be a member since 19 September, when the 75 applications were lodged, would not be entitled to vote until more than 10 business days had passed since they became a member, which would be a date after the proposed annual general meeting. The other relevant model rule is 10(2): the Committee must notify an applicant for membership in writing of its decision as soon as practicable after the decision on their membership application is made. I proceed on the basis that the association did adopt the model rules.
In essence, the defendant's response to the application for interlocutory relief is that it is conducting an annual general meeting as it should, and that there is no evidence of oppressive conduct, particularly when the chronology of events is considered. It referred to authorities dealing with oppressive conduct in corporations, where courts are very reluctant to stop a meeting or a vote at a meeting occurring, on the basis that invalid decisions can always be challenged later.
I accept that the Court has jurisdiction under s 68(1) to restrain situations where an association proposes to engage in oppressive conduct. However, I do not consider that, on the present material, a serious question to be tried has been established, that the defendant may engage in oppressive conduct at the meeting scheduled for tomorrow. Considering the facts that have been presented, the association is holding its annual general meeting, it is putting forward a form of constitution with, it seems, all concerned considering that a new constitution is needed, but differing as to what it should contain. It wants to persist with that meeting. It is entitled to have the special resolutions put to a vote. The outcome of those resolutions cannot be predicted. I accept that Ms Grima considers that the resolution may be adopted, but from the Court's point of view, that is speculation.
The fact that the 75 membership applicants will not be able to vote tomorrow is a relevant matter, but it does not establish a basis to conclude that s 68 may be breached and that oppressive conduct may be engaged in. Their inability to vote is rather a consequence of the combination of the time when they made their applications and the effect of the model rules providing that new members do not become entitled to vote until more than 10 business days have passed since they became a member.
In any event, the balance of convenience does not favour the grant of an interlocutory injunction to prevent the special resolutions being put. First, any invalid amendment can be later challenged. Secondly, the annual general meeting was organised before the current membership applications were made, and the recipients of the notice of the meeting are entitled to expect that it will proceed tomorrow, including the vote on the resolutions. Thirdly, and relatedly, the Court should not lightly prevent an annual general meeting proceeding according to the notice of matters that has been circulated.
Another matter raised was that Ms Grima had been denied the right to inspect the register of members that must be kept. She relied on the provisions of ss 57 and 67 and Section 4 of Part I of the Rules. I looked at the exchange of emails relating to this issue which commenced on Thursday September 22 with Ms Grima emailing the secretary of the association stating:[14]
..I want to ask if I can come and have a look on the church register book? Can you please let me know when a time would be available?
[14]Exhibit AG-1 to the Affidavit of Ana’uta Grima affirmed 27 September 2022, 112.
The answer three days later on Sunday the 25th was:[15]
Dear Ms Grima
As you are aware the Association is having its Annual General Meeting this Saturday 1 October 2022. The Register of Members will be available for inspection after the AGM.
Please come and see me after the AGM so that you can inspect.
[15]Ibid.
I do not consider that this email exchange reveals any intention to refuse inspection of the register. Ms Grima did not send a subsequent email demanding an earlier inspection. I do not consider that this issue raises a serious question to be tried.
I do understand Ms Grima’s concern at the possible narrowing of the category of persons who are eligible to become members of the association, particularly at this stage of this long, unfortunate dispute. I understand that she considers that the proposed membership rule may put additional power and control in the hands of the ruling faction of the Church, but the law ultimately leaves it to the members to decide what the constitution of an association may involve.
In my opinion, the Court should not postpone an annual general meeting on the basis that people may later be admitted as members and their votes, if they had been able to cast them at the time, may have changed the outcome of the vote on the resolution. In any organisation containing factions, even in a church which is an incorporated association, the faction that carries the majority of votes, in this case, a 75 per cent majority, is entitled to amend the rules.
If evidence is gathered that can support a case that any amendment of the rules involved oppressive conduct, or otherwise breached the requirements of the Rules or the Act, that would present a different matter. But on the material before me today I am not persuaded that a serious question to be tried to grant the interlocutory orders sought has been established. The summons filed today must be dismissed.
SCHEDULE OF PARTIES
| CHRISTINE MOALA | First Plaintiff |
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| 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 |
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