Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc
[2019] VSC 205
•29 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 04742
| CHRISTINE MOALA AND OTHERS (According to the Schedule attached hereto) | Plaintiffs |
| v | |
| FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1-5 May 2017; 12-16, 19-23, 26-28 February, 1-2, 9 March 2018; final written submissions 29 March 2018 |
DATE OF JUDGMENT: | 29 March 2019 |
CASE MAY BE CITED AS: | Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc |
MEDIUM NEUTRAL CITATION: | [2019] VSC 205 |
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CHURCHES — Members — Membership rule — Unincorporated association informally conducted — No membership rule — Later incorporated — Members at the incorporation date — Membership rule not applied — Failure to maintain members’ register as required by membership rule — Whether custom and practice formed part of membership rule — Whether custom and practice established — Whether members ceased to be members — Relevance of practice in Tongan parent church — Amendment of rules — Whether amendments valid — Whether members notified of meeting — Whether proxy votes wrongly excluded — Identification of Model Rules applying to meeting — Whether meeting valid — Associations Incorporation Act 1981 ss 6, 21; Associations Incorporation Reform Act 2012 ss 48, 49, 69; schs 1, 4.
ESTOPPEL — Claim to membership of Association by estoppel — Whether representations made with the authority of the Association — Whether estoppel would undermine statutory scheme of incorporated associations — Whether estoppel elements established — Reasonableness of reliance, knowledge of assumption and unconscionability not established — Estoppel not established.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Isles (1-5 March 2017) Mr T Sowden (12 February 2018 and following) | Reichman & Co |
| For the Defendant | Mr S Marks QC and Mr N Elias | Keith Edward Mortensen |
SCHEDULE OF PARTIES
| No. S CI 2015 04742 | |
| BETWEEN: | |
| CHRISTINE MOALA | First 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 |
Table of contents
Background
Church terminology: Lotu Fehu’i, Akonaki, Malanga and Confirmed Members
‘Church’
Procedural history
History of congregations
The Fellowship’s Constitution and Regulations
Was a Registration or Registry Book kept?
Fellowship quarterly meetings
Incorporation
Church structure
Misinale
Issue one: the membership rule
The parties submissions on the membership rule
The two separate issues
Exhibit Y
Custom and practice
Conclusions on membership rule and consideration of the defendant’s custom and practice case
The finding on membership rule during the Fellowship period
Issue two: cessation of membership
Consideration of the plaintiffs’ claims to membership
Issue 3: were the 2015 rules validly adopted?
Purpose of the 18 July meeting
Governing rules
Irregularities
Invalidity
Conclusion regarding the meeting of the 18 July 2015
Issue 4: estoppel
The defendant’s first preliminary argument – authority
The defendant’s second preliminary argument – the statutory scheme
The elements of estoppel
Conclusion
Appendix - collected rules
First edition of the Constitution of the Fellowship
Second edition of the Constitution of the Fellowship
The Associations Incorporation Act 1981
The Association’s 1991 Rules
The Old Model Rules
The 2012 Act
New Model Rules
The Association’s 2015 Rules
HIS HONOUR:
This dispute is about who the members of the defendant, the Free Wesleyan Church of Tonga in Australia (Victoria) Inc (‘the Association’), are. The Association exists to assist people, mainly people who were born in Tonga or people who are of Tongan descent, to worship God in accordance with Christian principles. It is linked to the teachings of John Wesley in the eighteenth century. It originated with a few people joining in worship in a garage in Deer Park. In the early 1980s, it became known as a Fellowship and in 1991 was incorporated. It owns church properties in Sunshine, Werribee and Dandenong. This proceeding arises from a dispute in 2014 between warring groups in the Church, which at least in part, was about the control of the Werribee Church property.
The term ‘Fellowship’ will be used to refer to the Church prior to its incorporation in 1991, and the term ‘Association’ will be used to refer to it during the period thereafter.
The dispute about the identity of the members of the Association has been refined to the identification of its members immediately prior to its incorporation on 4 March 1991, because those members automatically became members of the Association by operation of statute.[1] The identification of those persons is also significant because the parties agree that, save for the possible membership of six plaintiffs who claim membership by estoppel, no new members joined the Association between 4 March 1991 and 18 July 2015, because the requirements for admission of members to the Association under its 1991 rules were not observed. All parties seem to have ignored them or been unaware of their requirements. The date of 18 July 2015 is important, because on that day the Association purported to adopt new rules, with new procedures for the admission of members. A number of people have been purportedly admitted as members under those rules. But the plaintiffs challenge those rules and the validity of the meeting that adopted them, alleging that notice of the meeting was not given to all members, that proxies held by two of the plaintiffs were wrongly excluded and that a number of people who were not members participated in and voted in the meeting.
[1]Associations Incorporation Act 1981, s 14(1)(a).
Arising from those facts in this unfortunate dispute, the following issues must be answered:
(a) Issue 1, the membership rule: who are the members of the defendant Association? This question turns in part on who the members of the Fellowship were on 3 March 1991 immediately prior to incorporation. That turns on identifying the membership rule of the Fellowship and whether, as the defendant contends, by custom and practice it included a provision that only persons who had attained the status of Lotu Fehu’i could be members.
(b) Issue 2, cessation: which of the plaintiffs who were members of the Association have ceased to be members because they have left congregations or ceased their involvement with it or did not reply to the Secretary’s letter of 27 July 2015 by stating that they wished to remain a member of the Association? The validity of that letter turns in part on whether the 18 July 2015 amendments were validly made.
(c) Issue 3, the 2015 amendments: were the 2015 rules validly adopted, and if not, do the 1991 rules continue to apply?
(d) Issue 4, estoppel: is the Association estopped from denying the membership of six persons, being the first, third, fourth, sixth, seventh and twenty-sixth plaintiffs who contend that the Association is estopped from denying that they became members after its incorporation on 3 March 1991?
As I have mentioned, it is common ground that no person became a member of the Association under its 1991 Rules, meaning that no persons became members between 3 March 1991 and 18 July 2015. The possible exceptions to this are the six estoppel plaintiffs.
Background
Church terminology: Lotu Fehu’i, Akonaki, Malanga and Confirmed Members
At this introductory stage of this judgment, it is necessary to refer to and explain four terms of significance, which concern roles or statuses in the Church.
During the Fellowship years, and indeed after incorporation, the Church had three principal spiritual roles or ranks other than Minister. These roles were voluntary and involved the making of a commitment to adhere to the rules of the Church and to Christian teachings. Their relevance to this proceeding is established by the defendant’s pleading that the attainment of the role of Lotu Fehu’i was the means by which one became a member of the Fellowship before incorporation.
Lotu Fehu’i
The first position is that of ‘Lotu Fehu’i’. This term translates to ‘prayer requester’,[2] which is reference to the fact that Lotu Fehu’i have begun their spiritual journey and require the help of prayers.[3] This spiritual role is provided for by the Free Wesleyan Church of Tonga Constitution, the third edition of 1969, and in the Church’s second edition of its Constitution of 1986 – in Chapter 4 entitled ‘Spiritual Responsibilities’.
[2]Transcript of Proceedings, Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (Supreme Court of Victoria) 404, 1757 (‘T’).
[3]T 404.
Lotu Fehu’i status is open to ‘anyone who wants the truth about Godly life and who participates in the meetings to share and have discussions with his/her fellow peers’.[4] The Church’s Constitution requires that they meet monthly with the Minister or a lay preacher, discussed below, for counsel and support. In order to attain 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.[5] A person will be appointed Lotu Fehu’i if their ‘character and conduct is assessed as satisfactory by the Minister’.[6] Once a person becomes Lotu Fehu’i they are unable to consume alcohol, have pre-marital relations, go dancing or gamble.[7]
[4]Defendant’s Court Book, 147 (‘DCB’).
[5]T 148.
[6]T 148.
[7]T 387-388.
Ms Haitelensia Tu'akoi described the step of becoming Lotu Fehu’i as follows:
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.[8]
[8]T 2219-2220.
Akonaki
The position of Akonaki is also provided for in the Tongan Constitution and Chapter 4 of the Church’s second Constitution. The role of Akonaki is available only to those women who have been Lotu Fehu’i for at least six months. Upon application, a Minister may appoint a person Akonaki after consideration of her character and suitability.[9] The role in English is referred to as the ‘female advisers’.[10] Akonaki are to hold quarterly meetings with the Minister to check on their lives and progress within their assigned roles. If attaining Lotu Fehu’i status is the first step upon a churchgoers’ spiritual journey, Akonaki is a further step in advancement.
[9]DCB 148.
[10]T 230.
Akonaki are afforded greater responsibilities than Lotu Fehu’i, which include the privilege of running a service and preaching from the Church’s pulpit,[11] whereas Lotu Fehu’i may run a service only from a table in the church. Akonaki remain bound by their commitment to adhere to the word of God and the rules of the Church, such as refraining from the consumption of alcohol.
[11]T 1940.
Malanga
The position of Malanga is also provided for in the Tongan Constitution and Chapter 4 of the Church’s second Constitution. The role of Malanga is open to men or women who have attained Lotu Fehu’i status. A Malanga is a ‘lay preacher’ who is appointed by the Church to preach at services. A person wanting to become Malanga must undertake 9-12 months of probation after which they are assessed by the Minister on their knowledge of the Bible.[12] If found to be of good character they will be nominated by the Minister. Their principal role is to ‘preach the Gospel and spread the same good news to the world’.[13] They are to meet monthly with the Minister and be questioned on the status of their spiritual journey and how they are coping with their responsibilities. Their conduct is subject to continued scrutiny and their status as lay preacher may be removed if their character and conduct is deemed to be unbefitting of their role.[14]
[12]DCB 149.
[13]Ibid.
[14]Ibid.
Some evidence was led at trial that the role of Akonaki was the female equivalent of the role of Malanga.[15] While is possible that is how the roles operate in practice, both the Tongan Constitution and the Church’s second Constitution distinguish between the roles. Further, the role of Malanga is expressly available to men and women under chapter 4, clause 3 of the second edition of the Constitution. It is therefore the case that the roles are distinct, and the evidence of Ms Kalu at trial suggested that the role of Malanga was superior to that of Akonaki:
So that is a Lotu Fehu’i, which is like the beginners entry into first steps of your walk with God; and then you become an Akonaki; and then you become a Malanga.[16]
[15]T 1945, 1980.
[16]T 1396.
It appears that the role of Akonaki is a unique ‘adviser’ role for women within the Church which grants certain responsibilities, but that Malanga remains a distinct role of preaching.
Confirmed Member
The term ‘confirmed member’ appears to be used interchangeably with ‘Lotu Fehu’i’. Both the plaintiffs’ and the defendant’s witnesses often used the two terms as equivalents, responding to questions regarding Lotu Fehu’i with answers describing confirmed members and vice versa.[17] One of the plaintiff’s witness, Mr Sione Halahala, explicitly agreed that Lotu Fehu’i were what other witnesses had described as confirmed members,[18] and Mr Robert Wall, a witness for the defendant, stated that ‘A Lotu Fehu’i is a confirmed member’.[19] However, it seems likely that ‘confirmed member’ also refers to Malanga and Akonaki. This broader meaning is consistent with how the cited witnesses used the term, and also reflects this helpful exchange between the defendant’s counsel and Mr Ofamo’oni:
Yes, now let me ask you that. A confirmed member is Lotu Fehu’i; correct?
MRS BEALE (interpreter): Lotu Fehu’i. Sorry, can I rephrase again? (Question interpreted.)
WITNESS: Yes, this is the first step to be confirmed but you still be called confirmed member if you a lay preacher.
MR MARKS: It was a step up in the rank, Mr Ofamo'omi. You got Lotu Fehu’i first and then Malanga later, and by Malanga become a lay preacher if you wanted to; is that correct?---Yes.[20]
[17]T 258 (Mr Tautanoa), 471 (Mr Ofamo’oni), 1070 (Mr Kafoika), 1205 (Mr Vea), 1303 (Mr Halahala), 1416 (Ms Kalu) and 2068 (Mr Wall).
[18]T 1305-1306.
[19]T 2068.
[20]T 479-480.
‘Church’
I will also mention the word ‘Church’, which was used with different meanings throughout the hearing. Most commonly it was used as an alternative to the more formal terms of Fellowship or Association. Many people understandably regarded themselves as belonging to a Church, which in this instance was a religious congregation which worships God according to Christian beliefs. Although, the legal questions for determination are whether the plaintiffs belonged to a Fellowship or an Association, it was clear in the evidence that witnesses in using the word Church were mostly intending to refer to the religious group to which they considered that they belonged, whatever its formal title. I did not understand most witnesses as regarding themselves as members of the Fellowship or the Church, merely by being a congregational participant at church services.
Procedural history
The July 2014 dispute and the 2014 proceeding
The dispute between the parties first led to litigation in a proceeding in 2014. A disagreement had been brewing amongst the congregations of the Melbourne Church for about 12 months prior to a meeting in July 2014. At that meeting, three people had their status as preachers removed: Pita Ofamo’oni, Fohe Tautalanoa and Haniteli Tauatevalu.[21] There was also dispute about who could vote for members of the Association’s management committee. As a consequence of the dispute and the removal of preachers, a group of people walked out of the meeting.[22] This group and their supporters began independently worshipping at the Werribee Church.
[21]T 1084-5.
[22]T 1084.
This dispute led to the commencement of the first proceeding, S CI 2014 06108 (‘the 2014 proceeding’) in which the Association sued Pita Ofamo’oni for possession of the Werribee church and property. Mr Ofamo’oni sought an injunction that the Church be restrained until further order from dealing with or disposing or selling, mortgaging or otherwise encumbering the church at Werribee. The Association brought a cross-summons seeking an order that it be authorised to sell the Werribee property and that the defendant not interfere with the sale and vacate the property.
Throughout this dispute, the Association undertook that it would not sell, dispose or otherwise deal with the property, first prior to 17 February 2016, which date was later extended. The defendant, Mr Ofamo’oni, undertook that he would permit the Association to inspect the property as to its state and condition upon giving seven days prior written notice of its intention so to do. These undertakings are contained in various orders including those made by Rush J on 5 December 2014 and those made by Almond J on 28 August 2015. Ultimately, by orders I made on 22 April 2016, the Association was released from its undertaking in light of a similar such undertaking having been made in this 2015 proceeding.
This proceeding - S CI 2015 04742 - was commenced in the Magistrates’ Court of Victoria in November 2014, seeking orders under the Associations Incorporation Act 1981 (the ‘1981 Act’), alleging oppressive conduct by the Association. Specifically, the plaintiffs alleged that the Association’s failure to keep the Werribee church open and to compile a proper list of members, and to give those members proper notice of annual general meetings, constituted oppressive conduct. That conduct was said to have been unfairly prejudicial and discriminatory against certain members of the Association and contrary to the interest of all its members. The proceeding was subsequently transferred to this Court pursuant to s 69 of the Associations Incorporation Reform Act 2012 (the ‘2012 Act’).
Both the 2014 and the 2015 proceedings were mediated in February 2017, and on 10 March 2017 the parties signed a mediation agreement. It is sufficient to say that, under the agreement, if the parties could not reach agreement, then it was for the Court to determine the issue of membership and the list of members.
The parties could not reach agreement about the membership rule or the identity of the Association’s members, so in this, the 2015 proceeding, the Court must determine the membership rule and whether the plaintiffs are members of the Association.
Pleading issues
The case was delayed to a large degree by issues arising from the plaintiffs’ pleadings, the question of the appropriate parties and, most fundamentally, the identification of the membership rule on which they relied. Delay occurred in the plaintiffs deciding how many plaintiffs there were to be and whether a representative action should be commenced. The addition of an estoppel claim also led to pleading disputes.[23]
[23]See Moala v Free Wesleyan Church (Ruling No 4) [2017] VSC 635.
Adjournments
The proceeding was adjourned on a number of occasions, principally because of issues with the plaintiffs’ pleadings and decisions to allow the plaintiffs to file further amended statements of claim. A number of directions days dealing with interlocutory matters were required. Time was also required to ensure that parties, many of whom were not proficient in English, were aware of the nature of the proceeding and the consequences for them of its possible outcomes.
Five days of hearing occurred in May 2017, during which three of the plaintiffs’ witnesses gave evidence, but it was clear at the end of that week that the pleadings were not in a state to permit the trial to embody the case that the plaintiffs desired to bring.
The proceeding was due to recommence in late September 2017, but unfortunately counsel for the plaintiffs was unable to continue with the case. The proceeding was further adjourned and resumed on 12 February 2018.
The proceeding continued to be heard through February and early March 2018, and a number of further written submissions were filed in March 2018, after which the Court reserved its decision.
Many of the witnesses required the assistance of Tongan interpreters. But there are only a limited number of such interpreters, and there were none who the parties accepted as being perceived as having no direct or indirect connection with persons involved in the proceeding. The only solution was to swear two interpreters, one nominated by the plaintiffs and the other by the defendant and to allow the plaintiffs’ interpreter to interpret the evidence of the plaintiffs’ witnesses, with the defendant’s interpreter present and able to provide a separate interpretation if that was thought necessary. The same approach was applied with the defendant’s witnesses save that the defendant’s interpreter took the principal role of interpreting the evidence of the defendant’s witnesses.
A number of the documents to which I refer were written in Tongan and then translated into English and on occasions, witnesses said in effect that there was no exact equivalent word or phrase for the Tongan text.
History of congregations
The Fellowship of the Free Wesleyan Church of Tonga in Australia (Victoria) had its beginnings in a group of no more than 15-20 Tongan people,[24] who joined together on Sundays for worship in 1978[25] at the home of Ms Ana Grima’s sister in Deer Park.[26] Ms Grima is the fifth plaintiff and was Treasurer of the Fellowship, and later the Association, between 1983 and 2012.
[24]T 396.
[25]T 200.
[26]T 395-6.
Mr Fohe Tautalanoa, the first secretary of the Fellowship following election in 1983, stated that he became a member in 1979 when the church was called the Tongan Fellowship Church, which was held ‘in the garage of Lose Tuxworth who is not named in the list of original members’.[27] The Fellowship was unincorporated.
[27]Plaintiffs’ Exhibit A-3, affidavit of Fohe Tautalanoa sworn 26 July 2016 [4].
Mrs Vika Tautalanoa, who is married to Fohe Tautalanoa, described the commencement of the Fellowship as:
Because in those days, those wives who married to Australians, and we start moving to the country and we get together and then we decided we better start a fellowship so we can do something on Sunday.[28]
[28]T 1250.
Ms Grima agreed that at about that time the Fellowship started to become more formal and it started to have meetings and rules. But she said:
All the time they had in mind, when they were forming their rules, keeping true to the spirit of the Tongan church and its teachings? ---Yes, but this was all verbal. There was nothing written and give[n] to the member. The rules, yes, we do know, we have some rules, but there was nothing written and give[n] to the members.
It was all quite informal for a while, wasn’t it?---It was only verbal.
Yes, because they were quite a small group and everybody was glad to be there and glad to be among friends; correct? ---Yes.
And glad to have a common affiliation; correct?---Yes.
With the Tongan church back home? ---Yes we used the same hymn, the same Bible.
And the same rules, more or less?---Similar rules, not all rules.
And over time, things became more formal and, when they did, the little group started to formulate its rules; correct? ---Yes.[29]
[29]T 399-400.
The defendant summarised the origins of the Fellowship and later the Association as follows:
It appears to be common ground that the Fellowship started life in 1978 as a small group of like-minded individuals who met for worship regularly at the Deer Park Uniting Church. Most of these persons came to Australia from Tonga, where they had been brought up in the traditions and customs of the Free Wesleyan Church of Tonga, which is the main Christian Church in Tonga, and most were members of that church. They sought to replicate the practices of the Tongan Church, in circumstances where there was no Tongan Church in Melbourne at that time.[30]
[30]Defendant’s closing submissions, 28 February 2018, 7.
A service was held every second Sunday at the home of members. The Uniting Church at Deer Park was situated across the road from the home of Ms Grima’s sister. Once a month the Fellowship would hire that Church to hold a service.
In 1982, due to increased membership, the Tongan people who worshipped God at Deer Park started to develop into a more formal group and decided to draw up a Constitution. A committee or group of worshippers was formed to commence this work. The word ‘Fellowship’ began to be used to describe the group. It is a word often used to describe a group of worshippers of the same church or religious community or belief.
During this early period of the Fellowship, the caretakers, who later became ‘office-bearers’ of the Church, were elected by vote of the entire congregation.
Office-bearers were first elected at a Meeting for the General Election of the Free Tongan Fellowship held on Sunday 16 October 1983, the minutes of which provide a good insight into the life of, and customs and practice of, the Fellowship five years on from its establishment in the garage of a Deer Park home.[31] There is no reference in the minutes to candidates for election having to have attained the status of Lotu Fehu’i. The minutes suggest that it was a lively meeting with many contested elections of office-bearers. For instance, the entry in respect of the election of Mr Fohe Tautalanoa as the Secretary is as follows:
1. SECRETARY –Three names were nominated, 1. Pauline Liu, 2. Hulita T., Fohe Tautalanoa. Votes were taken and the general meeting elected Fohe Tautalanoa to be the Fellowship Secretary.
[31]DCB 135.
The minutes record that, in respect of one position, two persons showed anger at the election result saying that he was not good enough for that position.
Based on Ms Grima’s evidence as to the number of Lotu Fehu’i in the Fellowship, referred to below, it seems clear that many of the people who were nominated for offices were not Lotu Fehu’i. Ms Grima was one of two candidates for the Treasurer’s position and was elected, although she was not then Lotu Fehu’i.
More than one candidate was nominated for all of the office-bearer positions save for the position of the Sunday School Teacher, although some persons declined to accept nomination.
The Minutes conclude by stating that:
These office-bearers have been elected to carry out their various duties for one year. However, anyone who may not be doing his/her duty well will be dealt with accordingly. The meeting asked the Secretary (Fohe) to make sure that everything is alright with the Church at Footscray when we move to start there next month (November). Meeting closed with a hymn and benediction.
The Fellowship had a small management committee and a constitution was developed.
The Fellowship decided to move their services to the Uniting Church at Barkly Street, Footscray and did so in November 1983. There was no suggestion that only Lotu Fehu’i voted on this decision. This move coincided with the appointment of the Fellowship’s first Minister, Mr Taniela Vaotangi, who lived in Burwood,[32] which is closer to Footscray than to Deer Park.[33] He was the Minister until 2010, when he was replaced by the current Minister Mr Sione Tu’akoi. Mr Vaotangi was unable to give evidence. It is unclear from the evidence whether initially he was the full time minister of the Fellowship.[34] It seems that during the Deer Park days he would conduct services intermittently. He then spearheaded the establishment of the Footscray Church.
[32]T 398.
[33]T 206.
[34]T 206, 396-9.
The congregation moved to premises at Francis Street, Yarraville in about 1991 or 1992. A congregation at Werribee was established in 1992; which worshipped in the Werribee Uniting Church building until its own church was built in 1998. A congregation at Dandenong was established in about 2000.
The present Sunshine Church appears to have been built in 2007, at which time the Yarraville congregation moved there and became the Sunshine congregation.[35]
[35]T 1318.
The Fellowship’s Constitution and Regulations
For the better structure of this judgment, I have set out in an Appendix the relevant parts of the lengthy texts of the Fellowship’s Constitutions, the Association’s rules and the relevant provisions of the 1981 and 2012 Acts. But I also set out in the judgment key parts of those instruments or documents when they are relevant to the particular issues being considered. Some repetition in this judgment is inevitable and required in respect of those documents and other matters.
A printed version of the two editions of the Constitution of the Free Tongan Fellowship, Melbourne, contained a ‘Short Explanatory Note on the First Edition’ which stated:
The Free Tongan Fellowship was established by a small group in 1978. They met for worship every third Sunday of the month at the Uniting Church, Deer Park.
In 1982, due to increasing membership, it was considered crucial that a Constitution be developed. A Committee was set up to work with the Fellowship towards this aim through meetings and discussions. The General Meeting of January 1983 approved a Constitution for implementation one year later.
The Church at Deer Park was getting small so the General Meeting of 16 October 1983 decided to move the Fellowship to the Uniting Church at 300 Barkly Street, Footscray. Then in January 1984, the General Meeting finally gave full endorsement that the Constitution be adopted.
As representatives of the Free Tongan Fellowship, we hereby certify that the General Meeting approved through a ballot and duly confirmed the Constitution and Regulations. Dated 16 January 1984.
The aims of the Fellowship were expressed as:
AIMS: i.. Try to learn and know more about Christian teaching and values and then endeavour to share those experiences with others.
ii. Encourage members to keep and observe Tongan customs and ways that are thought to be good.
iii. To create good personal relationship among members.
Sections 3 and 4 of the first edition of the Constitution stated:
3. MEMBERS
i.Membership is free for all people, provided their names are registered in the Fellowship Registration Book.
ii.Any member or members who have refused to accept decisions already made by the General Meeting may be asked to give their reason. If their answers are not satisfactory, then the General Meeting with 2/3 majority got the right to have their names deleted from the Registration Book, which would mean that they are no longer members of the Free Tongan Fellowship.
4. ELECTION OF OFFICE-BEARERS
i.Election is to be held once a year; before this election the Chairperson should formally announce that all current positions are vacant.
ii.No person should be allowed to hold an office in the Fellowship unless she/he is an Australian permanent resident and has been an active fellowship for at least one year.
iii.One has to be an active member of the Fellowship for three months before she/he is eligible to vote.
In 1986, a second edition of the Constitution of the Fellowship was developed (‘the second Constitution’ or ‘the 1986 Constitution’). At this time, approximately 70 people attended the Sunday Service in Footscray.[36]
[36] T 1061.
The second edition of the Constitution contained the following introduction or Explanatory Note:
THE SECOND EDITION
In late 1984, a request was received to revise and extend the scope of coverage of the Constitution to include more of the Fellowship’s spiritual activities. Revisions were carried out and in February 1985, the General Meeting reviewed and discussed the revisions and extensions, which were eventually endorsed.
The General Meeting of January 1986 decided to adopt this second edition of the Constitution.
As representatives of the Free Tongan Fellowship, we hereby certify that the General Meeting confirmed through a ballot the revisions and extensions of the scope of the Constitution contained herein. Dated 26 January 1986.
The 1986 Constitution added rules in relation to baptisms, descriptions of meetings, and made provisions for ‘class leaders’.[37] The objectives of the 1986 Constitution were expressed as:
2. OBJECTIVES
i.Try to learn and know more about Christian teaching and values and then endeavour to share those values with others.
ii.Encourage members to retain certain aspects of the Tongan customs and culture that are good and just
iii.To maintain lasting relationships that are peaceful, joyful and loving between all members
[37]T 248-249.
The 1986 Constitution’s membership rule stated:
3. MEMBERS
i.Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.
ii.If any member or members disagree with a decision made by the General Meeting that causes them to be in absentia or being critical in an adverse manner, the General Meeting has the authority to suspend them with their names removed from the Registry Book provided that the vote is passes by a two thirds (2/3) majority.
iii.Those whose names have been removed from the Registry Book will no longer be part of the Fellowship and they will have no entitlements to assets, finance or any other goods.
Regulation 4 stated:
4. ELECTION OF OFFICE-BEARERS
i.Election of office-bearers is to be held once a year but prior to the election, the Chair will announce and release all positions available for election.
ii.No person will be allowed to hold office if he/she is not a permanent resident/citizen of Australia and an active member of the Fellowship with no less than one year membership.
iii.No person will be allowed to vote unless one has been a member for three months and above.
iv.The General Meeting shall have the right to confirm whether voting is to be by show of hands or by paper ballot.
v.If required, the Constitution may be read during the General Meeting.
Was a Registration or Registry Book kept?
The question of whether a Registration or Registry Book (‘the Registry Book’) of members was kept is important because of the terms of rule 3 of the Constitution. Fohe Tauatalanoa, the Fellowship’s first secretary, stated that:
To my knowledge there was no registry book as such however there were minute books in which members who were assigned to certain cell groups were recorded as being members. The cell groups were small groups of members that were assigned for fund raising and to attend to pastoral care matters concerning the cell members within the group. The rules did not provide a separate category of membership for cell members and the rules did not in fact cover the issue of cell members however in order to be part of a cell group you had to be a member of the Church. You could not participate in a cell group if you were not a member within clause 3(i) of the Rules.[38]
He said that it was up to the Minister to keep a record of members.[39]
[38]Plaintiffs’ Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017 [9].
[39]T 165.
This evidence was consistent with that of the first treasurer Ms Grima, who stated that:
Once you let the steward, Minister or Secretary know that you wish to become an active member of ‘the church’ you would then be allocated to a cell group. Where a cell group leader will introduce you to other group members, and keep you informed of what is going on within the church outside of what you would be told at church. The cell group leader are automatically members of the Committee for the purpose that they would be able to report back to the cell group what was discussed a committee meetings, and keep points of discussion between the cell groups and the committee connected at all times.
When you are a member of [a] cell group you are then listed as a member, as you are now committed to what [the] cell group decides on doing and what the church agrees the cell groups carry out and do.
I have always been a member of a cell group and know how it works and the reason for the cell groups existence, we are members of a cell group, and we the members of the cell group work closely together to look after one another, and to work together to reach our cell group allocated funds for our annual offering for the church’s work and visions which have been agreed on by the members of ‘the church’.[40]
[40]Plaintiffs’ Exhibit C-1, outline of evidence of Ana’uta Grima dated 23 April 2017 [8]-[10].
Ms Grima also stated that:
In the period of time [in] which I was treasurer there was no formal list of members of the Church as such. There was never a list of persons purporting to be members stating their address and the date upon which they became members.[41]
[41]Plaintiffs’ Exhibit C-3, affidavit of Ana’uta Grima sworn 23 May 2015 [3].
Fellowship quarterly meetings
After the adoption of the second edition of the Constitution, the Fellowship began to conduct quarterly meetings (‘quarterly meetings’).[42] These meetings would occur immediately after the Sunday Church service. From 1985 until 1992, Mr Tautalanoa kept a record of the people who were Lotu Fehu’i, Akonaki and Malanga who attended quarterly meetings.[43]
[42]T 1154-1155.
[43]T 233-234.
The first written record of what appears to have been a quarterly meeting took place in late 1985. In the following year the Fellowship adopted the second edition of the Constitution which dealt with quarterly meetings as part of the spiritual activities of the Fellowship. The minutes of an early quarterly meeting describe the meeting as including Lotu Fehu’i, Akonaki and Malanga. The minutes recorded a roll call and listed eight questions to be asked during the meeting, including how people were performing their spiritual duties, whether there were any persons nominated as Malanga or Akonaki and about prospective training for preachers or lay preachers.[44] The next apparent quarterly meeting was on 29 December 1985 and was described as a meeting of the Preachers (Malanga) and was mainly concerned with spiritual issues.[45] The first meeting that the minutes actually described as a quarterly meeting occurred on 29 June 1986 and considered spiritual matters.[46]
[44]DCB 171.
[45]Ibid 175.
[46]Ibid 179.
Incorporation
On 22 October 1989, steps towards incorporation of the Fellowship commenced, with a meeting of members who comprised a ‘Board of Trustees’, under the second edition of the Constitution, meeting at the Secretary’s house. This step was associated with plans for the possible purchase of property.
By 30 December 1990, the Board of Trustees with the assistance of a Sydney lawyer had drafted a new Constitution or rules for the Fellowship, in order to satisfy the statutory rules of incorporation.[47]
[47]T 274-275.
In about 1990, the Free Wesleyan Church of Tonga, which is the main Church in Tonga, gave permission for the Fellowship to use its name in Melbourne and to use its Constitution.[48]
[48]T 263-264.
On 4 March 1991, the Fellowship became an incorporated association pursuant to the 1981 Act. The Association’s 1991 registered Rules stated in relevant parts:
SECTION 2: OBJECT
The object of the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA is to promote religion and to uphold christianity and christian teachings and principles of the bible as observed and practised by the Free Wesleyan Church of Tonga.
SECTION 3: MEMBERSHIP
As a religious body, a person who accepts 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.
Ms Grima gave evidence that the members did not see, in the sense of were not provided with, a copy of the rules.[49]
[49]T 411-2.
After incorporation in 1991, the Melbourne Church grew to the three congregations or districts previously mentioned: Sunshine, Werribee and Dandenong. They are governed by a single management committee.
The Werribee congregation branched off to establish its own congregation in 1991, as the number of members grew substantially over a short period of time and a number of them lived in the Werribee area. The management committee of the Association favoured purchasing land at Werribee to build a church. At a meeting of the whole congregation of the Association at Sunshine, a majority of the congregation voted in favour of the recommendation.[50] The management committee by a separate vote then decided to proceed with the purchase.[51] In 1994, the Werribee land was purchased for $160,000 of which over $100,000 had to be raised. The church building was erected in 1998 at an approximate cost of $300,000.[52]
[50]T 185.
[51]T 183-184.
[52]T 427, 437.
Class or cell group leaders were instructed to raise funds for the purchase of the Werribee land. Each class group was given a target of approximately $10,000 to raise, although most groups raised more than this.[53] The functions of class groups are described below.
[53]T 461.
Church structure
I will next consider features or parts of the Church’s structure.
Management Committee
The management committee, sometimes referred to as the ‘steering committee’, was responsible for the running of the Church.[54] After incorporation, one committee was responsible for the Association and its three congregations, and it included representatives from each congregation.[55]
[54]T 1036.
[55]T 1211.
The Association’s rules provided for the composition of the Committee as follows:
SECTION 6: APPOINTMENT OF THE COMMITTEE
(a)The Committee shall consist of a:- Chairperson Secretary Treasurer and such Other Officers as shall be decided by the members of the Church at the Annual Regional Conference.
(b)The office-bearers and other members of the Committee shall be elected ANNUALLY at the Annual Regional Conference of the Church in April each year.
Some committee positions were held by direct appointment, such as the Secretary. Other positions, such as the Steward of each congregation, automatically held office on the Committee upon their election to that local position.[56]
[56]T 1071.
Office-bearers included Secretary, Treasurer, Chairperson and various other roles as determined from time to time by the Church.[57] These office-bearers were elected by a show of hands at the annual general meeting at Sunshine.[58] Each congregation would appoint its own office-bearers at its own meeting.[59]
[57]Rules and Regulations of the Church (1991) s 6.
[58]T 1164; 1569.
[59]T 1029-1030.
Under the first and second editions of the Constitution, office-bearers had to be permanent residents or citizens of Australia and a member of the Fellowship with no less than one year’s membership, with the first edition requiring that the person be an ‘active’ member.[60] Voting for office-bearers was by members of at least three months.[61] A General Meeting was to be held once a year and all members were free to attend it,[62] although there was some evidence that it was not held each year.
[60]Clause 4(ii).
[61]Clause 4(iii).
[62]Clause 8(ii) (first edition); chapter C, 2, I (second edition).
Most of the evidence suggested that only Lotu Fehu’i could stand for election. However, this was not a universal rule, for instance Ms Grima was not a Lotu Fehu’i, when she became Treasurer.
The Minister and Chairperson
The 1986 second edition of the Constitution described the role of the Minister as follows:
5. THE MINISTER
1. His main role is to try and save the spiritual lives of the people that he provides pastoral care to.
2. To attend church activities and to ensure that in all of the Fellowship’s work, the Rules and Regulations of the Fellowship must be followed. However, more importantly and beyond all other roles, he must listen and obey the might power and leading of the Holy Spirit.
3. Here are some of his duties:
i. To be the Chair of the Fellowship, but he is allowed to nominate someone else to chair.
ii. To recommend the appointment of a Catechumen or to recommend the demotion/removal of a Catechumen.
iii. To visit members of the Fellowship and provide them with spiritual guidance.
iv. To ensure that the Regulations are followed in the activities of the Fellowship and its congregations, including the sermons, the two Sacraments of the Lord’s Last Supper and Baptism, and the conduct of marriage ceremonies and funeral rights.
v. To collate and keep in good order all records pertaining to the Fellowship. In the event that the incumbent Minister is transferred, then the replacement Minister will continue to keep the records. The Minister is also allowed to authorise the Secretary or a Lay Preacher to keep such records on a temporary basis only.
vi. To encourage members of the Fellowship to contact him on a regular basis regarding anything that would help enhance the work of God.
4. Should the Minister show any characteristics which are considered undesirable such as improper behaviour, inability to abide by the Regulations and Constitution, failure to deliver work that is fitting and appropriate by Christian principles and values, then the Meeting of Lay Preachers and Class Leaders shall have the authority to temporarily suspend him until the next General Meeting when a final decision is to be made.
The Association’s 1991 Rules and Regulations state:
SECTION 2: MINISTER OF RELIGION
The Minister of the Church is the head representative and the chairperson of every meeting. He is responsible to the management of the Church “subject to the advice from the main Conference of the FREE WESLEYAN CHURCH OF TONGA”. Moreover, he will organise both the spiritual and social activities of the Church in Australia.
Class groups
The Minister or Secretary of each congregation of the Melbourne Church allocated members into class or cell groups. This occurred once they expressed an interest in becoming an active member of the church. Members of the same family would be placed in the same class group. In the 1980s there was only one class group in the Fellowship. Class groups consisted of about 10 members, who would meet regularly and discuss spiritual matters.[63] They could also discuss and vote on church business referred to them and the class group leaders would then convey their views to the management committee.[64]. Participation in class groups was, or became, a step in the process of obtaining Lotu Fehu’i status. ‘Misinale’, which was a form of fund raising, was co-ordinated through class groups,[65] with each being given an annual fundraising target, for example the sum of $10,000.00.[66]
[63]T 241.
[64]T 1015, 2223.
[65]T 1072.
[66]T 461.
The Class Leaders’ responsibilities included ‘to look after the Catechumens assigned to him/her’.[67] The role of Class Leader was outlined in the Fellowship’s second Constitution as follows:
2. CLASS LEADER (TAUHI’AHO)
…
3.A Class Leader is to meet with his/her group once a month, to discuss how their Christian lives are progressing. It is also good to provide this support through encouragements and reproach if the latter is useful.
[67]DCB 148.
Misinale
Misinale is an annual celebration of the Church, during which churchgoers raise money for the betterment of the Church community. Misinale means ‘donation’ or ‘offering’,[68] and has been a core aspect of the Free Wesleyan Church dating back to the time of John and Charles Wesley.[69] The Church holds an annual Misinale feast which celebrates the raising of money for the Church community.[70] The funds raised are essential to the functioning of the Church, for example they have paid for the purchase of new land and the construction of a new church building, and they are the mechanism by which the Church pays the minister’s salary, utility bills and other expenses.[71]
[68]T 1293.
[69]T 423.
[70]T 425.
[71]T 1035, 1237.
Annually, the committee sets a Misinale target for each class group to strive to achieve.[72] There was a suggestion from Minister Tu’akoi that each class group would be set a target of approximately $13,000.00 annually.[73] Churchgoers perceived the giving of money as part of Misinale as a commitment to their faith and was given ‘because they were part of the Christian family’.[74] There was no formal requirement that churchgoers donate money as part of Misinale, however all would contribute because they ‘wanted to give’[75] for ‘God’s work’.[76] It was mostly agreed that contribution to Misinale was voluntary,[77] but that all churchgoers – Lotu Fehu’i or otherwise - would contribute.[78] The amount contributed by many churchgoers was significant; for example, Ms Moala gave evidence that she had contributed approximately $10,000 in Misinale through her class group,[79] and Ms Kalu gave a similar estimate for her own donations.[80] There was evidence from Mr Tautalanoa and Ms Grima that, had they known they were not members of the Church, they would not have contributed to Misinale.[81]
[72]T 425-426, 1072.
[73]T 1827.
[74]T 291.
[75]T 292.
[76]T 1170.
[77]T 292, 1234, 1760.
[78]T 1767.
[79]T 1517.
[80]T 1408.
[81]T 298, 366.
The plaintiffs tendered various financial records of the Fellowship and Association, records which detailed the annual Misinale contributions for each year between 1984 and 2013,[82] including who had donated how much in each of those years. The plaintiffs used these records to arrive at aggregated Misinale contributions for some of the plaintiffs, which are as follows:
[82]T 268-496.
(a) $28,450.00 for Mr Tautalanoa;[83]
[83]Plaintiffs’ Exhibit MFI-B, description of the plaintiffs’ contentions about the monies advanced to the church by Mr Fohe Tautalanoa in the years designated.
(b) $11,125.00 for Ms Grima;[84]
[84]Plaintiffs’ Exhibit MFI-D, Ms Grima’s statement of recorded donations.
(c) $43,000.00 for Mr Ofamo’Oni;[85]
[85]Plaintiffs’ Exhibit G, list of donations provided by Pita Ofamo’oni.
(d) $40,634.00 for Mr Kafoika;[86]
[86]Plaintiffs’ Exhibit J, collaboration of offering made by plaintiff number fourteen – Tevita Kafoika.
(e) $54,000.00 for Mr Vea;[87]
[87]Plaintiffs’ Exhibit M, collaboration of offering made by plaintiff number three – Tuia Vea.
(f) $38,230.00 for Mrs Tautalanoa;[88]
(g) $35,572.80 for Mr Halahala;[89] and
(h) $40,727.30 for Mr Tanisila.[90]
[88]Plaintiffs’ Exhibit N-4, collaboration of offering made by plaintiff number fourteen – Vika Tautalanoa.
[89]Plaintiffs’ Exhibit P, collaboration of offering made by plaintiff number twenty-six – Sione Militoni Halahala.
[90]Plaintiffs’ Exhibit R, collaboration of offering made by plaintiff number six – Silatolu Taunisila.
However, it should be noted that the records used to compile the aggregated figures above were missing data for many years. Further, those records do not incorporate amounts donated through the collection bowl handed around during every Sunday’s service, nor more voluntary ad-hoc contributions made through the class group leader.[91] Accordingly, the figures stated above may in many cases fall far short of the real amount donated by any plaintiff. That may account for some or all of the differences between the figures above and the donations that some of the plaintiffs described themselves as having made. As taken from the plaintiffs’ outlines of evidence for each plaintiff (unless otherwise cited), those amounts are as follows:
[91]T 1543-1544.
(a) Excess of $15,000.00 for Apikale Fa;
(b) Approximately $20,00.00 for Ofa Falepaini;
(c) Excess of $18,200.00 for Ana Finau;
(d) Approximately $10,000.00 for Christine Moala;
(e) Excess of $12,000.00 for Vai Paua;
(f) Excess of $10,000.00 for Seneti Taufa;
(g) Excess of $100,000.00 for Fisi’iahi Tu’ulakitau
(h) Excess of $40,000.00 for Tuia Vea;
(i) Approximately $44,000.00 for Fohe Tautalanoa;[92]
[92]Taken from Plaintiff’s exhibit A-2, Affidavit of Fohe Tautalanoa dated 1 December 2014.
(j) Approximately 189,100.00 for Ana Grima;[93]
[93]Taken from Plaintiff’s exhibit C-2, Affidavit of Ana Grima dated 1 December 2014.
(k) Excess of $70,000.00 for Pita Ofamo’oni
(l) Approximately 80,000.00 for Tevita Kafoika;
(m) Excess of $50,000.00 by Sione Halahala; and
(n) Approximately $45,000.00 for Silatolu Taunisila.
As I understood it, the defendant did not admit these amounts, however I do find that a number of the plaintiffs made significant financial contributions to the Fellowship, Church and Association through Misinale and otherwise. Nothing turns on the precise amount of such contributions.
Some evidence suggested that, although contribution was not technically required, there was a stigma associated with individuals who did not contribute, and class groups who did not achieve the prescribed target. The amount each person or family contributed was public knowledge.[94] There was evidence that there was lots of ‘put down’ for class groups who did not realise the target.[95] As Ms Moala stated:
The Misinale is by no means a voluntary matter. There is such a stigma associated with it if you do not put in, because then not only have you failed your cell group, but then you are left in a situation where you would have to then try to seek out a way to make those funds.[96]
To illustrate this point, Ms Moala stated that she had once loaned money to another churchgoer who could not afford to contribute so that the churchgoer could have a contribution recorded under her name and avoid stigmatisation.[97]
[94]T 1167.
[95]T 1235.
[96]T 1544.
[97]Ibid.
Since the commencement of the dispute in 2014, the Werribee Church has not participated in the Association’s Misinale, because a key aspect of Misinale is that part of the money raised by each Church congregation would be centrally held by the Association.[98] Instead, the Werribee Church has raised sufficient money itself through donations not technically classed ‘Misinale’, but made through a similar process.[99] This money has been used to support the Werribee Church and to fund the litigation.[100]
[98]T 437.
[99]T 515, 1385-1386.
[100]T 515, 1386.
Issue one: the membership rule
The first key issue to address is the question of what membership rule governed the admission of members to the Fellowship. The defendant, without, as I understood it, disagreement from the plaintiffs identified the specific membership issues for determination as follows. First, whether twelve plaintiffs, being the paragraph 10 plaintiffs, were founding members. In order to resolve this issue, the Court must determine what the membership rules of the Fellowship were and then, by applying those rules, determine whether the twelve paragraph 10 plaintiffs were members of the Fellowship at the incorporation date. Secondly, the question of the membership of the disputed founding members, who were the paragraph 12 plaintiffs, and thirdly the membership of the post incorporation and estoppel plaintiffs, who were the paragraph 13 plaintiffs.
It was common ground that the Fellowship’s Constitution contained no provision dealing with the form of nomination for membership and no provision identifying by whom that nomination must be considered. The plaintiffs relied on the terms of the membership rule in the Constitutions, but also pleaded other matters such as baptism, being welcomed into the Church by the Minister in open congregation and participation in the life of the Church through assignment to cell groups, involvement in fundraising, engagement in pastoral care, attending Church services and being active in the congregation.
The defendant’s case was that a person had to have attained the status of Lotu Fehu’i in order to be a member of the Fellowship.
The parties submissions on the membership rule
The plaintiffs’ submissions
The plaintiffs’ final statement of claim, the seventh further amended statement of claim, identified people who they say are founding members and listed additional founding members whose status is disputed by the defendant. It also pleads the terms of the 1986 Constitution membership rule. The plaintiffs allege that the Fellowship did not maintain a Register Book as required under rule 3 of the Constitution. They then plead that:
At the time of the incorporation of the Defendant, the Plaintiffs assert that the admitted founding members and the disputed founding members were persons who had been baptised and were practising members of the fellowship and were entitled to membership of the Church.[101]
[101][16].
The plaintiffs also alleged that between October 2014 and June 2015, the defendant determined that a number of the plaintiffs had ceased, or were not otherwise considered to be members of the Church by reference to whether they had submitted a written application for membership, which had been approved by any membership committee and thereafter ceased to provide them with notices of meetings of the Church. These allegations were not developed and do not appear to require separate consideration.
The plaintiffs submitted that, in interpreting the Constitution, allowance should be made for the fact that associations like the Fellowship are not profit making organisations and that their rules are often drafted in an ‘ad hoc and piecemeal fashion by lay persons rather than lawyers, couched in terms intelligible to them but which often lacked consistency, coherence, form and drafting which would be expected in a statute or commercial contract’.[102]
[102]Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201 [18] (Stanley J).
They also submitted that, where the rules of an unincorporated association are silent about the means of applying for membership, the question of whether a person has become a member is a question of fact. That question was to be answered by whether the person’s actions had made known to the association that he or she intended to be bound by its rules, including by attending members’ meetings and taking part in its business, exercising members’ privileges, paying subscriptions or expressly accepting membership by notice to the association or an officer.[103] In this case, the plaintiffs pleaded that they had either been accepted as founding members or had been baptised into the Church, been welcomed into the Church in open congregation, participated in the life of the Church by being assigned to cell groups, been involved in fundraising for the Church, engaged in pastoral care and were active in the congregation and had never resigned.
[103]The plaintiffs relied on Nurses Memorial Centre of South Australia Incorporated v Beaumont (1987) 44 SASR 454 at 468 (von Doussa J).
It was also argued that membership of the Fellowship was recognised once a person’s name was registered in the Fellowship’s Registry Book, which they contended was contained in Exhibit Y. This book was not the Roll Book that was used for quarterly meetings, which only recorded the attendances of Lotu Fehu’i, Akonaki and Malanga. Thus an important issue in the plaintiffs’ case was whether Exhibit Y was the Registry Book and the consequences if it was proved not to be so, and the Registry Book with the names of the plaintiffs recorded in it was not otherwise in evidence. The plaintiffs argued that membership of the Fellowship was not restricted to people who had attained the status of Lotu Fehu’i.
The defendant’s submissions
The defendant’s pleadings as to the Fellowship’s membership rule were contained at paragraph 10(b) of its defence to the seventh further amended statement of claim, which stated
At all material times up until the Association’s incorporation on 4 March 1991, the applicable rule governing admission to membership of the Fellowship was as follows:
(i)Membership of the Fellowship was customarily termed “Lotu Fehu’i ”, the same term as was used to designate membership in the Constitution of the Free Wesleyan Church of Tonga in Tonga;
(ii)To become “Lotu Fehu’i” in the Fellowship, an applicant (Applicant) was required to give a verbal commitment to the members present at a special meeting of the Fellowship held once every quarter (Fellowship Quarterly Meeting), to the effect that the Applicant would accept the responsibilities attending a Lotu Fehu’i and was ready and worthy to become a member of the Fellowship were such membership to be conferred; and
(iii)The Applicant was then considered for Lotu Fehu’i by the minister and those present at the Fellowship Quarterly Meeting at which the commitment was given, following which the minister would, on behalf of the members, either accept or not accept the Applicant as a Lotu Fehu’i (i.e. a confirmed member).
The defendant’s case was that members of the Fellowship were those persons who had become Lotu Fehu’i under the Testimony rule and were confirmed members and were entitled to vote on decisions effecting the organisation. This was the Fellowship’s clear rule of custom and practice concerning admission to membership. Merely attending church services did not make a person a member of the Fellowship.
A prospective member of the Fellowship had to assume the responsibilities of a Lotu Fehu’i by giving a verbal commitment, including giving testimony to the confirmed members present at a quarterly meeting of the Fellowship, and be accepted by the members at that meeting. If the Fellowship did not recognise a person as having the right to vote at quarterly meetings the person was not a member.
The defendant submitted that the rules were silent as to what a person must do in order to have their name included in the Registry Book and more generally as to what a person had to do in order to be admitted as a member. It also argued that membership could only be obtained through a contractual process that conferred membership rights including the right to vote. It argued that the Fellowship, as a voluntary association, was bound together by a consensual compact and the rights of its members inter se depended entirely on the terms and conditions of that compact or contact. The defendant emphasised that, although the term ‘member’ was not defined in the Constitution, the Court should not be distracted by its meaning, which could be understood from the fact only members had certain rights, including: to vote for the election of office-bearers (clause 4(iii)); to hold office (clause 4(ii)); and to attend, and by implication vote at, the General Meeting (clause 3(2)(ii) and (iii)).
The defendant contended that the Fellowship’s founding members at the point of incorporation were those persons recorded in the minutes of quarterly meetings as having become Lotu Fehu’i prior to incorporation and who were not recorded as having ceased to be so prior to incorporation or who had not left the Fellowship. A person’s membership would terminate if the voting rights were removed if they breached the behavioural guidelines of the Tongan Church or if they left the congregation, for example, to move to another church or to move interstate. This approach made the identification of members straight forward, as the records, maintained by the Fellowship since at least 1986, especially the minutes of quarterly meetings, identified the people who were Lotu Fehu’i at any given time.
The two separate issues
The parties’ membership rule cases raise separate issues. In the case of the plaintiffs, the issue of whether Exhibit Y should be accepted as the Registry Book and the consequences if the plaintiffs could not prove that their names were recorded in a Registry Book, the issue which I will determine next. In the case of the defendant there is the question of the Lotu Fehu’i custom and practice, which involves a number of sub issues, which I will determine thereafter.
Exhibit Y
Exhibit Y is a handwritten journal or record book mainly in English in writing that Mr Wall said he had been informed was Minister Vaotangi’s. It records details of many people who appear to have been associated with the Fellowship, the Association or more broadly the Church, apparently from December 1983, which was a month before the first edition of the Constitution was adopted. It contains persons’ names and signatures and details of events occurring up until at least 2005. At the top of the second page the following words are written, although the first and last words in Tongan may have letters cut off by the process of photocopying:
INA TONGA ‘o FAKATATAU KIE FIEMA’U ‘AE KUPU 3 KUPU [‘OE KONISITUTONE][104]
Fellowship Registration of Members as required by Section 3* of the Constitution.
[104]It is unclear if the bracketed words were part of the previous words or were part of a separate heading on the next page. The asterisk after ‘Section 3’ is because the next number was cut off on photocopying.
The book records events such as births, deaths, marriages, people arriving, people leaving, people ceasing to be active in the church, people discontinuing their involvement with the church, people changing churches, dates of birth and ages and in a few cases criminal charges or convictions. It changes format on about the 22nd page, but still in many instances records personal details of people. It does contain what appears to be different handwritings. Some names recorded in the book have been crossed through, apparently when the person named had left the congregation, including by moving to a different location.
The existence of Exhibit Y became apparent in the evidence of Mr Wall, given near the end of the defendant’s case. He had assisted the defendant compile a membership list. He explained that ‘I made a further search of all documents relating to the Fellowship before incorporation and located a book showing the handwriting of the then Minister of the Fellowship.’[105] Exhibit Y was tendered by the plaintiffs during cross-examination of Mr Wall.[106] He gave evidence regarding his compilation of membership registers. His evidence explained that, in creating a list of members, he had regard to documents from the Fellowship period; principally minutes of meetings, the list of voting members of the Fellowship kept by the secretary and all quarterly meetings of members and also Exhibit Y.[107]
[105]T 2119.
[106]T 2119.
[107]T 2122 and 2112.
Mr Wall said that the current Minister advised him that Exhibit Y contained the previous Minister Vaotangi’s handwriting.[108] He stated:
This document records the names of persons who attended the church but includes some persons who had never applied to become members and whose names were not included in the names of persons approved for membership in the minutes.
…The main source document were the minutes and this was compared against the minutes.
…The minutes record who and when someone was anointed as Lotu Fehu’i.[109]
[108]T 2120.
[109]T 2120-2121.
Mr Wall gave evidence that he was told that the Register was kept by the then Minister of the Fellowship, Mr Vaotangi.[110] He was first unable to say whether it contained the names of non-Lotu Fehu’i, as the plaintiffs contended.[111] However, counsel for the plaintiffs pointed out that, in his written outline of evidence, he admitted that the document recorded the names of people who had attended the church but who had not applied to become members and whose names were not included in the names of persons approved for membership in the minutes.[112]
[110]T 2115.
[111]T 2116-2117.
[112]T 2120.
As mentioned, both editions of the Fellowship’s Constitution refer in their membership rule to a Registration Book or Registry Book.
The plaintiffs argued that Exhibit Y was the ‘Registration’/’Registry’ book referred to in the Fellowship’s Constitutions, and importantly, that the list contained the names of people who were not Lotu Fehu’i, Akonaki or Malanga. They relied upon this argument to disprove the defendant’s principal submission: that to have your name entered into the Registry Book you had to have attained Lotu Fehu’i status.
The defendant denied that Exhibit Y was the Registry Book contemplated by section 3 of the Constitution and instead contended that the quarterly meeting roll kept by the Secretary served that purpose. It also criticised the plaintiffs’ tendering of the document so late in the trial. It also objected to the admission of Exhibit Y because Mr Wall was not present, nor a part of the Fellowship community, during the period in which the document was created.[113] It also argued that the plaintiffs had had ample opportunity to tender the document earlier and question its own witnesses on its use, as they may have been able to give evidence about its provenance.
[113]T 2115.
Evidence about Exhibit Y
Other witnesses gave evidence relevant to the significance of Exhibit Y. The defendant’s witness, Ms Sokopeti Latu Palavi, appears to have her name listed on Exhibit Y. When questioned by counsel for the plaintiffs, she gave evidence that the signature accompanying her name looked like her own, though she could not remember signing the document.[114] Her name was entered on 6 October 1985; she gave evidence that she joined the congregation in 1984 and become Lotu Fehu’i sometime between then and 1987. Her evidence provides some support for a conclusion that Exhibit Y was a membership register listing the names of people who were not Lotu Fehu’i.
[114]T 2193.
Mr Halahala, the plaintiffs’ witness, also gave evidence that he was entered in the register of members – Exhibit Y – in 1985 upon joining the Church, despite not becoming Lotu Fehu’i until after the incorporation of the Association.[115]
[115]Plaintiffs’ Exhibit O-4, further outline of evidence of Sione Halahala filed 15 February 2018.
Due to the late tendering of the Exhibit, no other witnesses, particularly those active during the Fellowship period, were asked about the document and its provenance.
As previously mentioned, there was another document being the Roll Book from Minute Book 1985 to 1992,[116] which contained a list of names and records the attendance of those named at quarterly meetings. Mr Tautalanoa, the Fellowship’s original secretary, gave evidence that he kept this record and that it was in his own handwriting. His evidence was that the roll comprised only people who were Lotu Fehu’i, Akonaki or Malanga in the Fellowship at the time.[117]
[116]DCB 382.
[117]T 234.
The parties’ submission about Exhibit Y
The plaintiffs’ submissions
The plaintiffs argued that the Fellowship’s membership rule required that persons’ names had to be added to the Registry Book. They argued that Exhibit Y was the Registry Book referred to in section 3(i) of the Constitution. They relied upon the evidence of Mr Wall and Mr Halahala, outlined above, in support of this submission.
The plaintiffs disputed the suggestion that Mr Tautalanoa’s handwritten roll/register was the Registry Book required by the Fellowship’s Constitution. Their case was that the purpose of that document was to record those who attained Lotu Fehu’i status, and was entirely different from the Registry Book required by section 3(i). In support of this submission the plaintiffs relied upon Chapter 4 of the second edition of the Constitution, which stated that:
Chapter 4: Spiritual Responsibilities
1. The Catechumens (Lotu Fehu’i)
1. A member of the Catechumens is one whose name is listed in the roll for the Class list of the Catechumens or the Fellowship.
The plaintiffs argued that Mr Tautalanoa’s roll was the one contemplated by this provision, which was mentioned in the chapter dealing with ‘Spiritual Responsibilities’, whereas the Registry Book was mentioned in the chapter pertaining to ‘Members’. Two lists existed, and in their submission, Exhibit Y was that which was the key to membership.
The defendant’s submissions
As mentioned, the defendant strongly opposed the plaintiffs’ tendering of Exhibit Y and their related submissions. It did so on four principal bases: that it was contrary to the plaintiffs’ pleaded case, that the late tendering of the document led to it being untested and its provenance unknown, that the document did not speak for itself and the existence of the quarterly meeting roll.
Paragraph 8 of the plaintiffs’ seventh further amended statement of claim stated that ‘the fellowship did not maintain a membership book, or at least not one as required by clause 3’. The defendant submitted that in light of this, the plaintiffs’ late change of argument was not supported by their pleadings and ought not to be accepted.
The defendant also attacked the timing of the plaintiffs’ tender of Exhibit Y, which occurred when the plaintiffs were cross-examining one of the defendant’s final witnesses. The plaintiffs had closed their case and many of their witnesses had been part of the Fellowship and may have been able to give evidence about the provenance and legitimacy of Exhibit Y, but were not asked about it. It appears that the defendant may have discovered the document or provided it to the plaintiffs late in the litigation, and the plaintiffs may have taken time to notice its potential relevance. The defendant argued that the fact that the plaintiffs left it to the second last day of evidence to tender the document meant that its relevance or reliability could not be tested and the Court could not place weight on it. The document could not speak for itself. It contained multiple sets of handwriting and the same names were listed in more than place in the document for no apparent reason. There was no evidence to support a conclusion that Exhibit Y was the membership register.
Finally, the defendant argued that the existence of Mr Tautalanoa’s register/roll of Lotu Fehu’i disproved the plaintiffs’ claim that Exhibit Y was the s 3(i) Membership Register. Mr Tautalanoa’s roll contained the list of Lotu Fehu’i, who were the members of the Fellowship and the Association.
Conclusion about Exhibit Y
Exhibit Y has many features that suggest that it is the Registry Book required by the Fellowship Rules. However, while the Court can draw inferences from the text and form of the document, I am unable to conclude on the case presented by the plaintiffs, that it is the Registry Book as required by the rules. They pleaded that there was no Registry Book and that there was no direct evidence that there was one. The defendant was not given notice that it was to meet a case that Exhibit Y was the Registry Book. I admitted it as evidence because Mr Wall had referred to it, but the document cannot speak for itself.
Because of the plaintiffs’ pleadings, the manner in which the plaintiffs presented their case and the lack of direct evidence of the origins of Exhibit Y, I am unable to find, at least for the purposes of the issues argued, that it is the Registry Book referred to in the Constitution.
Effect of conclusion about Exhibit Y
As I have found that the plaintiffs have not proved that Exhibit Y was the Registry Book, the consequences that follow from this finding have to be considered. One question arising is whether the absence of evidence that a Registry Book of members was kept means that, at the incorporation date, the Fellowship had no members other than the founding members. Does the plaintiffs’ failure to prove that their names were recorded in a Registry Book mean that they were not a member, regardless of other circumstances such as their active involvement in the Fellowship? I received no, or very limited, submissions about that issue.
These issues require examining the text of the membership rule, which stated in its second edition:
3. MEMBERS
i.Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.
ii.If any member or members disagree with a decision made by the General Meeting that causes them to be in absentia or being critical in an adverse manner, the General Meeting has the authority to suspend them with their names removed from the Registry Book provided that the vote is passed by a two thirds (2/3) majority.
iii.Those whose names have been removed from the Registry Book will no longer be part of the Fellowship and they will have no entitlements to assets, finances or any other goods.
The following features of the text of the membership rule are significant in determining the consequence of the plaintiffs not proving that their names were recorded in the Registry Book. First, the obligation to record members’ names is expressed as ‘provided their names are registered in the Fellowship’s Registration Book’ (first edition of the Constitution) and ‘but names must be registered and listed in the Registry Book’ (second edition of the Constitution). Those words leave unclear whether the listing of a person’s name in the Book is a condition of membership. On one view, the words impose a requirement for the recording of membership already conferred, rather than a pre-condition for obtaining membership.
In my opinion, the failure to record persons’ names as members did not by itself prevent them from becoming members. If such a failure occurred, it was not their fault that the Fellowship did not do what the Constitution required it to do. There are four reasons for that conclusion.
First, the recording of a person’s name in the Registry Book was an obligation owed by the Fellowship, acting through the Minister or relevant officers, to the new member and to the other members of the Fellowship. It is not expressed as essential to membership. The decision in Tiao v Lai (No 2)[118], a decision of the Western Australian Court of Appeal to which the defendant referred, was an instance in which the conditions for membership of the particular religious centre were essential preliminaries for membership. In that case, the Association’s membership rule provided that anyone who had attained the age of 18, was baptised at the centre and paid a subscription fee of $10 was eligible to be a member. Applications for membership had to be in writing, and the Board had the sole right to approve or reject any person who applied to be a member without giving reasons in the case of rejection.
[118][2010] WASCA 189.
Secondly, while rule 3(iii) makes it clear that removal of the name from the Registry Book pursuant to rule 3(i) means that the person whose name is removed will cease to be a member, it does not follow that to be a member a person’s name has to appear in the Registry Book. The operative act to suspend membership is the two thirds vote of the general meeting and the subsequent removal of a name from the Register Book records that act.
(a)he or she applies for membership in accordance with sub-rule (3); and
(b) the admission as a member is approved by the committee.
(3) An application of a person for membership of the Association must—
(a) be made in writing in the form set out in Appendix 1; and
(b) be lodged with the Secretary of the Association.
(4)As soon as practicable after the receipt of an application, the Secretary must refer the application to the committee.
(5)The committee must determine whether to approve or reject the application.
(6)If the committee approves an application for membership, the Secretary must, as soon as practicable—
(a)notify the applicant in writing of the approval for membership; and
(b)request payment within 28 days after receipt of the notification of the sum payable under these Rules as the entrance fee and the first year's annual subscription.
(7)The Secretary must, within 28 days after receipt of the amounts referred to in sub-rule (6), enter the applicant's name in the register of members.
(8)An applicant for membership becomes a member and is entitled to exercise the rights of membership when his or her name is entered in the register of members.
(9)If the committee rejects an application, the committee must, as soon as practicable, notify the applicant in writing that the application has been rejected.
…
5 Register of members
(1) The Secretary must keep and maintain a register of members containing—
(a) the name and address of each member; and
(b) the date on which each member's name was entered in the register.
(2) The register is available for inspection free of charge by any member upon request.
(3) A member may make a copy of entries in the register.
6 Ceasing Membership
(1)A member of the Association who has paid all moneys due and payable by a member to the Association may resign from the Association by giving one month's notice in writing to the Secretary of his or her intention to resign.
(2) After the expiry of the period referred to in subrule (1)—
(a) the member ceases to be a member; and
(b)the Secretary must record in the register of members the date on which the member ceased to be a member.
…
9 Annual general meetings
(1) The committee may determine the date, time and place of the annual general meeting of the Association.
(2) The notice convening the annual general meeting must specify that the meeting is an annual general meeting.
(3) The ordinary business of the annual general meeting shall be—
(a)to confirm the minutes of the previous annual general meeting and of any general meeting held since that meeting; and
(b)to receive from the committee reports upon the transactions of the Association during the last preceding financial year; and
(c)to elect officers of the Association and the ordinary members of the committee; and
(d)to receive and consider the statement submitted by the Association in accordance with section 30(3) of the Act.
(4)The annual general meeting may conduct any special business of which notice has been given in accordance with these Rules.
16Voting at general meetings
(1) Upon any question arising at a general meeting of the Association, a member has one vote only.
(2) All votes must be given personally or by proxy.
(3) In the case of an equality of voting on a question, the Chairperson of the meeting is entitled to exercise a second or casting vote.
(4)A member is not entitled to vote at a general meeting unless all moneys due and payable by the member to the Association have been paid, other than the amount of the annual subscription payable in respect of the current financial year.
19 Proxies
(1)Each member is entitled to appoint another member as a proxy by notice given to the Secretary no later than 24 hours before the time of the meeting in respect of which the proxy is appointed.
(2) The notice appointing the proxy must be—
(a)for a meeting of the Association convened under rule 7(7), in the form set out in Appendix 2; or
(b) in any other case, in the form set out in Appendix 3.
The 2012 Act
In 2012 the Associations Incorporation Reform Act came into effect, replacing the 1981 Act. The relevant provisions are as follows:
Associations Incorporation Reform Act 2012
…
46 Rules constitute terms of contract
The rules of an incorporated association are taken to constitute the terms of a contract between the association and its members.
47 Requirements
(1) The rules of an incorporated association must specify–
(a) the name of the association; and
(b) the purposes of the association.
(2) The rules of an incorporated association must make provision for –
(a)each of the matters specified in Schedule 1 to the extent the matter is applicable to the association; and
(b) any other prescribed matters.
(3)An incorporated association that adopts the model rules without modification as its rules is taken to have met the requirements of subsection (2).
48 Rules of an incorporated association
(1)On the registration of an incorporated association under this Act, the rules of the association are—
(a)the rules that accompanied the application for the registration of the association; or
(b)if the application was accompanied by a statement that the model rules have been approved as the rules of the proposed incorporated association—the model rules.
(2)After an incorporated association is registered under this Act, the rules of the association are the rules referred to in subsection (1) as altered from time to time in accordance with this Part.
(3)If the rules of an incorporated association do not make provision for a matter as required by section 47(2), the model rules, to the extent that they make provision for that matter, are taken to be included in the rules of the association.
(4)A rule or purpose of an incorporated association that is inconsistent with this Act or contrary to law is of no effect.
49 Model rules
(1)The model rules are the rules prescribed to be model rules by the regulations.
(2)The model rules so prescribed must make provision for each matter specified in Schedule 1 and any other prescribed matter other than specifying –
(a) the name of the incorporated association;
(b) the purposes of the incorporated association;
(c) the financial year of the incorporated association.
(3)If an incorporated association approves the adoption of the model rules as its rules, it is taken to have adopted any subsequent amendment to the model rules as an alteration of its rules.
(4)An alteration to the rules of an incorporated association referred to in subsection (3)—
(a)takes effect on the day the relevant amendment to the model rules comes into operation; and
(b)takes effect without the requirement of a special resolution of the association; and
(c) does not require the approval of the Registrar.
(5)If an incorporated association that has approved the adoption of the model rules as its own rules alters those rules under section 50, other than an alteration to its name, purposes or financial year, the association is taken to have adopted its own rules and subsections (3) and (4) do not apply to those rules.
(6)An incorporated association may, by special resolution, approve the adoption of the model rules as the rules of the association at any time after its incorporation under this Act.
(7)An incorporated association that approves the adoption of the model rules as its own rules under subsection (6), must notify the Registrar and include in the notification—
(a) the name of the association;
(b) the purposes of the association;
(c) the financial year of the association.
50 Alteration of rules
(1)Subject to this Act, an incorporated association may, by special resolution, alter its rules.
…
51 Membership of an incorporated association
(1) On the registration of an incorporated association under this Act, the members of the incorporated association are—
(a) in the case of an association incorporated under Division 1 of Part 2—the persons who were members of the association immediately before its incorporation;
(b) in the case of a registrable body registered as an incorporated association under Division 2 of Part 2—the persons who were members of the registrable body immediately before its registration under this Act;
(c) in the case of the amalgamation of two or more incorporated associations into a single incorporated association under Division 3 of Part 2—the persons who were members of any of the incorporated associations so amalgamated immediately before the amalgamation.
(2) Other persons may be admitted as members of an incorporated association in accordance with its rules.
…
56 Register of members
(1) An incorporated association must keep and maintain a register of members in accordance with this section.
Penalty: 10 penalty units.
(2) The register of members must contain the following information about each person who is a member of the association—
(a) the person's name and address;
(b) if applicable—the class of membership of the person;
(c) the date on which the person became a member of the association.
(3) The date on which a person ceases to be a member of the association must be entered in the register of members within 14 days after that date.
(4) Information about a person who is no longer a member of the association, other than the name of the person and the date on which the person ceased to be a member of the association, must be removed from the register of members within 14 days after the person ceases to be a member of the association.
…
SCHEDULE 1
MATTERS TO BE PROVIDED FOR IN THE RULES OF AN INCORPORATED ASSOCIATION
The Association
1 The name of the incorporated association.
2 The purposes of the incorporated association.
Membership
3The qualifications (if any) for membership of the incorporated association.
4The entrance fees, subscriptions and other amounts (if any) to be paid by members of the incorporated association.
5 The rights, obligations and liabilities of members.
6 Provisions for the resignation of a member or cessation of membership.
7The procedure (if any) for the disciplining of members and the mechanism (if any) for appearances by members in respect of disciplinary action taken against them.
8The grievance procedures for settling disputes under the rules between the incorporated association and any of its members or between a member and any other member.
Management and record keeping
9The name, membership and powers of the committee or other body having the management of the incorporated association (in this paragraph referred to as the committee) and—
(a) the election or appointment of members of the committee;
(b) the terms of office of members of the committee;
(c)the grounds on which, or reasons for which, the office of a member of the committee becomes vacant;
(d) the filling of casual vacancies occurring within the committee;
(e) the quorum and procedure at meetings of the committee.
10The procedures for the appointment and removal of the secretary of the incorporated association.
11The custody of records, securities and other relevant documents of the incorporated association.
12Provisions for the custody and use of the common seal (if any) of the incorporated association.
13Provision for members to have access to, and to be able to obtain copies of, the records, securities and other relevant documents of the incorporated association.
14 The preparation and retention of accurate minutes of—
(a) general meetings of the incorporated association; and
(b)meetings of the committee or other body having the management of the incorporated association.
15Provision for members to have access to, and to be able to obtain copies of, minutes of general meetings of the incorporated association, including financial statements submitted at a general meeting.
16Right of access (if any) by members to minutes of meetings of the committee, including any terms and conditions subject to which access may be granted.
Meetings
17The intervals between general meetings of members of the incorporated association and the manner of calling general meetings.
18The quorum and procedure at general meetings and whether members are entitled to vote by proxy at general meetings.
19The time within which, and the manner in which, notices of general meetings and notices of motion must be given, published or circulated.
Funds
20The sources from which the funds of the incorporated association are to be or may be derived.
21The manner in which the funds of the incorporated association must be managed and, in particular, the mode of drawing and signing cheques on behalf of the incorporated association.
Alteration of rules
22The manner of altering and rescinding the rules of the incorporated association and of making additional rules.
Winding up and dissolution
23The disposition of any surplus assets on the winding up or dissolution of the incorporated association.
…
SCHEDULE 4
TRANSITIONAL PROVISIONS
1 Definitions
(1) In this Schedule—
commencement day means the day on which section 224 comes into operation;
corresponding provision means a provision of this Act that re-enacts (with or without modification) a provision of the Associations Incorporation Act 1981;
old model rules means the model rules made under the Associations Incorporation Act 1981;
old rules, of an incorporated association, has the meaning given in clause 7(1).
(2)For the purposes of the definition of corresponding provision in subclause (1), in determining whether a provision is a corresponding provision—
(a) regard must be had to the substance of the provision; and
(b)if the provision appears to have expressed the same idea in a different form of words for the purposes of using a clearer style—the difference must be disregarded.
4 Incorporated Associations
(1)An association that, immediately before the commencement day, was incorporated under the Associations Incorporation Act 1981 is, on that day, taken to be incorporated under this Act.
(2)Subclause (1) does not affect the date of incorporation of an incorporated association referred to in subclause (1) which continues to be the date the association became incorporated under the Associations Incorporation Act 1981.
(3)On and from the commencement day, a certificate of incorporation issued under the Associations Incorporation Act 1981 to an incorporated association referred to in subclause (1) is taken to have been issued under this Act.
7 Incorporated Association may operate under old rules
(1)Subject to subclauses (2) and (3), an incorporated association may continue to operate under the rules of the association as in force immediately before the commencement day (the old rules) until the rules are altered in accordance with clause 8.
(2)While an incorporated association is operating under its old rules, if there is an inconsistency between those rules and any provision of this Act, the provision of this Act prevails except as provided in this Schedule.
(3)If the old rules of an incorporated association are the old model rules, the association may only operate under those rules for 12 months after the commencement date or until the rules are altered in accordance with clause 8.
(4)If, after the expiry of the period of 12 months commencing on the commencement date, an incorporated association operating under the old model rules has not taken either action referred to in clause 8(2), it is taken to have adopted the model rules under this Act and its old rules are of no effect.
(5) If—
(a)an incorporated association is operating under its old rules by virtue of subclause (1); and
(b)under those old rules there is an office holder of the association, separate to the office of public officer, who has the title of secretary—
any reference in this Act to the secretary of an incorporated association is not to be taken as a reference to that office holder.
(6)The Registrar may, in writing, approve changes to the composition of the office holders of an incorporated association that would otherwise be contrary to the rules of the association if satisfied those changes are necessary to facilitate the transition of the association from its old rules to rules that comply with this Act.
8 Alteration of old rules
(1)For the purposes of this clause, the rules of an incorporated association operating under its old rules are altered when –
(a)the association has notified the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or
(b)the Registrar, subject to subclause (3), has approved the alteration of the association’s rules under section 50.
(2)Within 12 months after the commencement day, an incorporated association operating under the old model rules must—
(a)notify the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or
(b)apply in accordance with section 50 for the approval of the alteration of its rules.
(3)The Registrar must not approve the alteration of the old rules of an incorporated association unless satisfied that all the rules as altered comply with this Act.
For the purposes of this clause, an alteration, of the rules of an incorporated association, includes the substitution of its old rules with new rules.
New Model Rules
New Model Rules were developed to accompany the 2012 Act; they are found under schedule 4 of the Associations Incorporation Reform Regulations 2012. Relevant provisions are as follows:
Model Rules for an Incorporated Association
8 Who is eligible to be a member
Any person who supports the purposes of the Association is eligible for membership.
9 Application for membership
(1)To apply to become a member of the Association, a person must submit a written application to a committee member stating that the person—
(a) wishes to become a member of the Association; and
(b) supports the purposes of the Association; and
(c) agrees to comply with these Rules.
(2) The application—
(a) must be signed by the applicant; and
(b) may be accompanied by the joining fee.
10 Consideration of application
(1)As soon as practicable after an application for membership is received, the Committee must decide by resolution whether to accept or reject the application.
(2)The Committee must notify the applicant in writing of its decision as soon as practicable after the decision is made.
(3)If the Committee rejects the application, it must return any money accompanying the application to the applicant.
(4) No reason need be given for the rejection of an application
11 New Membership
(1) If an application for membership is approved by the Committee–
(a)The resolution to accept the membership must be recorded in the minutes of the committee meeting; and
(b)The Secretary must, as soon as practicable, enter the name and address of the new member, and the date of becoming a member, in the register of members.
(2)A person becomes a member of the Association and, subject to rule 13(2), is entitled to exercise his or her rights of membership from the date, whichever is the later, on which–
(a) the Committee approves the person’s membership; or
(b) the person pays the joining fee
…
14 Associate members
(1) Associate members of the Association include—
(a) any members under the age of 15 years; and
(b)any other category of member as determined by special resolution at a general meeting.
(2)An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.
…
16 Ceasing membership
(1) The membership of a person ceases on resignation, expulsion or death.
(2)If a person ceases to be a member of the Association, the Secretary must, as soon as practicable, enter the date the person ceased to be a member in the register of members.
17Resigning as a member
(1)A member may resign by notice in writing given to the Association.
(2)A member is taken to have resigned if—
(a)the member's annual subscription is more than 12 months in arrears; or
(b)where no annual subscription is payable—
(i)the Secretary has made a written request to the member to confirm that he or she wishes to remain a member; and
(ii)the member has not, within 3 months after receiving that request, confirmed in writing that he or she wishes to remain a member.
18 Register of members
(1)The Secretary must keep and maintain a register of members that includes—
(a) for each current member—
(i)the member's name;
(ii)the address for notice last given by the member;
(iii)the date of becoming a member;
(iv)if the member is an associate member, a note to that effect;
(v)any other information determined by the Committee; and
(b) for each former member, the date of ceasing to be a member.
(2)Any member may, at a reasonable time and free of charge, inspect the register of members.
30 Annual general meetings
(1)The Committee must convene an annual general meeting of the Association to be held within 5 months after the end of each financial year.
(2)Despite subrule (1), the Association may hold its first annual general meeting at any time within 18 months after its incorporation.
(3)The Committee may determine the date, time and place of the annual general meeting.
(4) The ordinary business of the annual general meeting is as follows—
(a)to confirm the minutes of the previous annual general meeting and of any special general meeting held since then;
(b) to receive and consider—
(i)the annual report of the Committee on the activities of the Association during the preceding financial year; and
(ii)the financial statements of the Association for the preceding financial year submitted by the Committee in accordance with Part 7 of the Act;
(c) to elect the members of the Committee;
(d)to confirm or vary the amounts (if any) of the annual subscription and joining fee.
(5)The annual general meeting may also conduct any other business of which notice has been given in accordance with these Rules.
…
33 Notice of general meetings
(1)The Secretary (or, in the case of a special general meeting convened under rule 32(3), the members convening the meeting) must give to each member of the Association—
(a)at least 21 days' notice of a general meeting if a special resolution is to be proposed at the meeting; or
(b) at least 14 days' notice of a general meeting in any other case.
(2) The notice must—
(a) specify the date, time and place of the meeting; and
(b)indicate the general nature of each item of business to be considered at the meeting; and
(c) if a special resolution is to be proposed—
(i) state in full the proposed resolution; and
(ii)state the intention to propose the resolution as a special resolution; and
(d) comply with rule 34(5).
(3) This rule does not apply to a disciplinary appeal meeting.
34 Proxies
(1)A member may appoint another member as his or her proxy to vote and speak on his or her behalf at a general meeting other than at a disciplinary appeal meeting.
(2)The appointment of a proxy must be in writing and signed by the member making the appointment.
(3)The member appointing the proxy may give specific directions as to how the proxy is to vote on his or her behalf, otherwise the proxy may vote on behalf of the member in any matter as he or she sees fit.
(4)If the Committee has approved a form for the appointment of a proxy, the member may use any other form that clearly identifies the person appointed as the member's proxy and that has been signed by the member.
(5) Notice of a general meeting given to a member under rule 33 must—
(a)state that the member may appoint another member as a proxy for the meeting; and
(b)include a copy of any form that the Committee has approved for the appointment of a proxy.
(6)A form appointing a proxy must be given to the Chairperson of the meeting before or at the commencement of the meeting.
(7)A form appointing a proxy sent by post or electronically is of no effect unless it is received by the Association no later than 24 hours before the commencement of the meeting.
38Voting at general meeting
(1)On any question arising at a general meeting—
(a)subject to subrule (3), each member who is entitled to vote has one vote; and
(b)members may vote personally or by proxy; and
(c)except in the case of a special resolution, the question must be decided on a majority of votes.
(2)If votes are divided equally on a question, the Chairperson of the meeting has a second or casting vote.
(3)If the question is whether or not to confirm the minutes of a previous meeting, only members who were present at that meeting may vote.
(4)This rule does not apply to a vote at a disciplinary appeal meeting conducted under rule 24.
39Special resolutions
A special resolution is passed if not less than three quarters of the members voting at a general meeting (whether in person or by proxy) vote in favour of the resolution.
46 President and Vice-President
(1)Subject to subrule (2), the President or, in the President’s absence, the Vice-President is the Chairperson for any general meetings and for any committee meetings.
(2)If the President and the Vice-President are both absent, or are unable to preside, the Chairperson of the meeting must be –
(a)In the case of a general meeting – a member elected by the members present; or
(b)In the case of a committee meeting – a committee member elected by the other committee members present.
The Association’s 2015 Rules
At the meeting on 18 July 2015, the Church purported to adopt the new model rules, with various amendments. Some of the purported relevant amendments are as follows. Underlined sections denote bespoke rules purportedly inserted at the meeting. Struck through sections denote Model Rules purportedly deleted in the meeting.
4 Definitions
Application for membership means a written signed application for membership by a person who wishes to become a member of the Association, who supports the purposes of the Association and who agrees to comply with the Rules of the Association, who has been baptised, and who has given a testimony in person before the Local Church Group, followed by the giving of testimony before the members of the Association whose names are on the Register of Members, and who has been accepted for such membership by a majority of such members voting in favour of the person’s acceptance of membership.
Class group means a group of members of the Association that the Committee appoints to be such a group of members
Conduct prejudicial to the Association means and includes the taking of legal proceedings against the Association or against any member of the Committee.
9 Application for membership
(1)To apply to become a member of the Association, a person must submit a written application to a committee member stating that the person –
(a) wishes to become a member of the Association; and
(b) supports the purposes of the Association; and
(c) agrees to comply with these Rules.
(2) The application
(a) Must be signed by the applicant; and
(b) May be accompanied by the joining fee.
(2)The application must be made on the form prescribed in Schedule 2, contain the information required by that form and be signed by the applicant.
14 Associate members
(1) Associate members of the Association include—
(1)Associate members of the Association include—
(a)any members under the age of 15 years; and(a)persons who attend church services and functions on the Associations premises, who have not made a written application for membership followed by the giving in person of their testimony, and who have not been approved by the Committee to be members.
(b)any other category of member as determined by special resolution at a general meeting.
(2) An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.
(2)An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.
16 Ceasing Membership
(1) The membership of a person ceases on resignation, expulsion or death.
(2) If a person ceases to be a member of the Association, the Secretary must, as soon as practicable, enter the date the person ceased to be a member in the register of members.
(2)on the date that the Minister gives, at the member’s request, a letter of recommendation of the member to another Church; and
(3) on the date that a member
(a)takes or continues any legal proceedings against the Association or ay committee member; or
(b)gives a document or statement that supports a member or former member in any legal proceedings taken by that member or former member against the Association or against any Committee member.
17 Resigning as a member
(1) A member may resign by notice in writing given to the Association.
(2) A member is taken to have resigned if—
(a)the member's annual subscription is more than 12 months in arrears; or
(b) where no annual subscription is payable—(i)the Secretary has made a written request to the member to confirm that he or she wishes to remain a member; and
(ii)the member has not, within 3 months after receiving that request, confirmed in writing that he or she wishes to remain a member.
46 President and Vice-President
(1)Subject to subrule (2), the President or, in the President’s absence, the Vice-President is the Chairperson for any general meetings and for any committee meetings.
(2)If the President and the Vice-President are both absent, or are unable to preside, the Chairperson of the meeting must be –
(a)In the case of a general meeting – a member elected by the members present; or
(b)In the case of a committee meeting – a committee member elected by the other committee members present.
(3)The Minister is by virtue of his office (ex officio) the President or Chairperson of the Association.
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