Moala v Free Wesleyan Church of Tonga (No 5)

[2020] VSC 134

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 04742

CHRISTINE MOALA & ORS (According to the Schedule attached)	Plaintiffs
v
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC (A0022699W)	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2020
DATE OF JUDGMENT:	19 March 2020 (Revised)
CASE MAY BE CITED AS:	Moala v Free Wesleyan Church of Tonga (No 5)
MEDIUM NEUTRAL CITATION:	[2020] VSC 134

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CHURCHES – Incorporated Association – Election of member of Management Committee – Whether eligible – Embezzlement convictions – Whether disqualification rule applies to conduct occurring before taking office – Costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Sowden	Reichman & Co
For the Defendant	Mr N Elias	Prolegis Lawyers

HIS HONOUR:

1. The issue to decide is whether Mr Robert Wall is eligible to, and entitled to, hold office as a member of the management committee of the Free Wesleyan Church of Tonga in Australia (Victoria) Inc. (‘the Association’). He was elected as a member of the management committee in February.

1. Mr Wall was given the opportunity to be joined as a party but chose not to do so. The defendant’s case was that he was eligible and entitled to serve as a member of the management committee. The plaintiffs’ case was that he was not.

1. The matter arises because Mr Wall was convicted 20 years ago in Tonga on charges of embezzlement. The judgment of the Court of Appeal of Tonga on 27 July 2002[1] stated that Mr Wall pleaded guilty to 11 counts of embezzlement and was initially sentenced to five years imprisonment on each count concurrently, the last 12 months to be suspended for two years from the date of release. His appeal to the Court of Appeal led to a reduction in that prison term, and he was resentenced to four years imprisonment on each count, to be served concurrently, with the last 12 months of the sentence to be suspended for two years from the date of release.

   [1]See R v Wall [2001] Tonga LR 238, Wall v Rex [2002] Tonga LR 338 (Burchett, Tompkins and Spender JJ).

1. The Court of Appeal judgment recited that Mr Wall was employed as the Tongan representative of an Australian insurance company and had authority to sign cheques to withdraw money. The 11 counts of embezzlement concerned sums totalling $181,008.00. That money was used for trips overseas, gifts, shopping, importation of a sports car, transferring amounts to his sister in Australia, and buying assets such as a tractor, tractor implements, ride–on lawn mower, television, video camera and other items. Some items to the value of $30,000 were recovered.

1. The Court of Appeal noted that Mr Wall, after the disclosure of his offending, married a Tongan woman whom he had met at his church and that he was an active member of the church in Tonga. The Court of Appeal also observed that Mr Wall, in a relatively short time, had made very considerable progress in his chosen profession of insurance, having reached a senior position. It said that all that was now lost and that ‘if he is ever again employed in a position requiring trust and integrity, that is unlikely to be for a very long time.

1. The issue that I have to decide arises under section 5(b) of the Rules of the Association which provides that:

(b) The member of the committee shall be disqualified from holding office if: –

(i) he or she shall become physically or mentally incapable of acting as a member of the committee.

(ii)       he or she tenders a written resignation to the committee.

(iii) he or she ceases to be a member of good standing in the committee or in the Church.

(iv)      if he or she ceases to be a member of the Church.

(v) Upon a resolution being passed by two thirds majority of committee present at a properly constituted general meeting specifically called for the purpose to remove him or her from office.

(vi)if he or she is absent for more than six months without leave of the Committee from meetings of the Committee held during that period;

(vii) he or she commits an unlawful act or crime or is found guilty of any misbehaviour in law or in the rules of conduct of the christian faith. (Emphasis added).

1. The plaintiffs’ submissions included that:

On 1 February 2020 the committee (having rejected some 116 applications for membership) convened a meeting of the association for the purposes of appointing a further four members to the committee of management. The plaintiffs say that the meeting was irregular, that members of the organisation who had their applications improperly rejected were prevented from attending and voting and that the results of the meeting were drawn on a white board before voting commenced. They say that one of the four members elected, Mr Wall, is disqualified from holding a position on the management committee, having been convicted of 11 counts of embezzlement in Tonga on 23 October 2000 and having served three years imprisonment following a successful appeal on sentence.

1. The position of the 116 rejected applications was not argued today.

1. Counsel for the plaintiffs pointed out that there was no reason to be found in the words in sub–paragraph (vii) to limit its effect to disqualifying a person from membership of the management committee because of conduct or circumstances occurring while they were serving as a member of the committee. Secondly, he contended that sub-paragraph (vii) has to be construed in its context, which included for instance, sub–paragraph (i) which disqualifies persons who have become physically or mentally incapable as acting as members of the committee and sub-paragraph (ii) which disqualifies persons who have tendered their written resignations. As with clause 5(b)(vii), those clauses use the conditional tense which is also used elsewhere in the rules. If section 5 is interpreted as applying only to serving members of the management committee, then non–members incapable of acting as committee members would be free to stand, for and to be elected to, the management committee.

1. Thirdly, counsel argued that the rules were drafted when there was no management committee. Fourthly, counsel relied on the important role played by the management committee, including in managing the Association’s finances and submitted that the rules should be interpreted in a manner which would best protect its assets. Thus interpreted, Mr Wall, in view of his convictions of embezzlement, should not be permitted to be elected as, or serve as, a member of the management committee.

1. In contrast, the defendant’s submissions included that each of the items in section 5(b)(i) to (vii) assumed as its starting point that the relevant person against whom it might be applied was a serving member of the committee. Accordingly, the disqualification rule only applies to a committee member as a result of their conduct or condition while holding office. Counsel for the defendant pointed out that the powers granted to the management committee are not exercisable by any single member.

1. Before considering those submissions, it is important to state that my task is to apply the law and the rules in determining whether Mr Wall was eligible to be elected as, and serve as, a member of the management committee. I cannot determine whether applying common sense or prudence, he should be a member of the committee. That is not my task. I can only apply the rules which constitute the statutory contract between the Association and the members.

1. Both counsel agreed that words could not be implied into the rules. A number of different scenarios were mentioned during argument in which the operation of section 5(b)(vii) was uncertain. For instance, the effect of a committee member incurring a minor traffic fine and the March/April scenario advanced by the plaintiffs’ counsel, in which a person having been convicted of a crime in March, was elected to the management committee in April. These scenarios demonstrate that there may be difficulties applying section 5(b) in all circumstances.

1. The legislation of 1981 and 2012, and the model rules do not assist in ascertaining the meaning of section 5(b)(vii).

1. The parties agreed about the principles governing the interpretation of the rules. One authority referred to was the judgment of Basten and Bell JJA in Dome Resources NL v Silver[2] which states: [3]

Accordingly, it is appropriate to approach the task so as to give the document a “businesslike interpretation”, paying “attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure”…

So, to put it simply, in reading the rules one looks primarily at the words used and applies them.

[2](2008) 72 NSWLR 693.

[3]Ibid [11] (Basten and Bell JJA) see also Ananda Marga Pracaraka Samgha Ltd v Tomar (No 6) (2013) 300 ALR 492, [153]-[170] (Dodds–Streeton J).

1. My reading of the rules leads me to conclude is that section 5(b) only deals with the conduct or capacity of a person while they are holding office as a member of the committee. Now that is clearly so in respect of some parts of section 5(b), for instance sub–paragraph (ii) which says: ‘he or she tenders a written resignation to the committee’ and sub–paragraph (iii) which says: ‘he or she ceases to be a member of good standing in the committee or in the Church’ and sub–paragraph (v) which says: ‘[u]pon resolution being passed by two thirds majority of [the] committee present at a properly constituted general meeting specifically called for the purpose to remove him or her from office’ and sub–paragraph (vi) which says: ‘if he or she is absent for more than six months without leave of the Committee from meetings of the Committee held during that period’.

1. The application that I give to section 5(b) is reinforced by the opening words of the rules which are ‘the member of the committee shall be disqualified from holding office’ which I consider refers to someone who is actually in office. Also of relevance in sub–paragraph (vii) is the verb ‘commits’ and the words ‘is found guilty’. Both are expressed in the present tense, or perhaps the present continuous tense, but they cannot be read as referring to the past.

1. Some constitutions, for instance, s 44 of the Commonwealth Constitution expressly deals with the past by stating that a person cannot be chosen or sit as a member of Parliament when they have certain convictions, but in my opinion, the Association’s rules do not have that effect. It may well have been appropriate that they did, but I do not read them as doing so.

1. There were other matters mentioned that I did not consider as decisive because of my duty to decide the present dispute about Mr Wall by applying the words of the rules.

1. First, was the fact that Mr Wall’s convictions were probably known to at least some the plaintiffs and to voters at the election. Secondly, that the Free Wesleyan Church is a Christian church and that applying its Christian principles, criminal conduct, particularly occurring many years previously, may be viewed as being out balanced by the possibility of redemption and reformation of character. Over the centuries, many Christian leaders have been imprisoned.

1. But as I have said, I have to apply to words of section 5(b) and doing so I conclude that subparagraph 5(b)(vii) only applies to conduct or capacity occurring after a person has commenced to hold office as a member of the management committee.

1. My conclusion therefore is that Mr Wall is legally entitled to serve as a member of the management committee of the Association. I will make a declaration to that effect.

1. So far as costs are concerned, the Court’s discretion is normally exercised on the basis that costs follow the event. In this protracted litigation, on occasions I have seen reasons why that principle should not apply, but this in not such an occasion. I understand that the plaintiffs and the Association had an interest in having the issue determined. But the issue of Mr Wall’s eligibility to be elected to, and to serve on, the Association’s management committee was raised on behalf of the plaintiffs and as the plaintiffs’ submissions have not succeeded, I see no reason why the defendant should not have its costs of the hearing, including the preparation of written submissions.

SCHEDULE OF PARTIES

S CI 2015 04742
BETWEEN:
CHRISTINE MOALA	First Plaintiff
HANITELI TAUATEVALU	Second Plaintiff
TUIA VEA	Third Plaintiff
TOAKASE KALU	Fourth Plaintiff
ANA’UTA GRIMA	Fifth Plaintiff
LATUSILATOLU TAUNISILA	Sixth Plaintiff
PITA OFAMO'ONI	Seventh Plaintiff
VIKA TAUTALANOA	Eighth Plaintiff
SITIVENI FA	Ninth Plaintiff
APIKALE FA	Tenth Plaintiff
MELE LOISI LATU	Eleventh Plaintiff
VAI PAUA	Twelfth Plaintiff
SEMISI PAUA	Thirteenth Plaintiff
TEVITA KAFOIKA	Fourteenth Plaintiff
ANA FINAU	Fifteenth Plaintiff
FISI’IAHI TU’ULAKITAU	Sixteenth Plaintiff
SITANI FALEPAINI	Seventeenth Plaintiff
EMELI FALEPAINI	Eighteenth Plaintiff
FALEPUNA KAFOIKA	Nineteenth Plaintiff
MELE LINO	Twentieth Plaintiff
MOHELATA WALLS	Twenty-first Plaintiff
SENETI TAUFA	Twenty-second Plaintiff
POUSIMA TAUFA	Twenty-third Plaintiff
MAKA TU’ULAKITAU	Twenty-fourth Plaintiff
FOHE TAUTALANOA	Twenty-fifth Plaintiff
SIONE MILITONI HALAHALA	Twenty-sixth Plaintiff
MARYANNE FORD	Twenty-seventh Plaintiff
TUIPULOTU OFAHENGAUE	Twenty-eighth Plaintiff
VILI OFAHENGAUE	Twenty-ninth Plaintiff
KOLINI TAUFA	Thirtieth Plaintiff
AND
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC	Defendant