Moala v Free Wesleyan Church (Ruling No 4)

[2017] VSC 635

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)	Plaintiffs
v
FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) REG NO A0022699W	Defendant

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF JUDGMENT:	17 October 2017
CASE MAY BE CITED AS:	Moala & Ors v Free Wesleyan Church (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2017] VSC 635

---

PRACTICE AND PROCEDURE — Pleadings -Application to further amend pleadings — Church — Incorporated Association — Dispute as to membership — Pleadings as to membership — Estoppel pleading — Defects in pleading — Multiple opportunities to rectify pleading — Whether further pleading opportunity should be given — Discretion – Relevant factors — Delay and prejudice — Determination of real issues — Civil Procedure Act 2010 s 7, Supreme Court (General Civil Procedure) Rules2015 O 13 r 2.

ASSOCIATIONS — Church —Dispute as to membership — Membership rule —Pleadings.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J J Isles	Forbes Reichman & Galasso
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
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) REG NO: A0022699W	Defendant

HIS HONOUR:

Introduction and background of the dispute

1. This ruling decides the plaintiffs’ application for leave to file a further statement of claim in the form of the draft that was discussed at the hearing on 12 September 2017.[1] The parties subsequently filed written submissions about the plaintiffs’ application. I have ruled previously on applications by the plaintiffs to amend their pleadings, most recently on 21 August 2017. The delay in the delivery of pleadings in a satisfactory form has delayed the continuation of the trial which has already occupied five days in May this year.

   [1]The proposed pleading was dated 7 September 2017.

1. The proceeding stems from a dispute concerning the identification of the membership of the defendant, the Free Wesleyan Church of Tonga in Australia (Victoria) Inc., to which I will refer as the Church, the Association or the defendant. One of the Association’s congregations worships at a Church in Werribee. The plaintiffs claim that they satisfy the Church membership rule and alternatively, in the case of some of the plaintiffs, that the Church is estopped from denying that they are members. The Church is an incorporated Association.

1. In order to be granted leave to deliver a further statement of claim the plaintiffs’ proposed pleading must contain allegations which, if proved, would establish their causes of action as contained in the pleading. The plaintiffs will not be given such leave when, even assuming the facts pleaded to have been established, the claim is so manifestly hopeless as to be futile.[2]

   [2]The plaintiffs cited for this proposition on Opat Decorating Services (Vic) Pty Ltd v Jennings Group Ltd (Unreported) Supreme Court of Victoria 16 September 1994, Byrne J.

1. But as Dawson J said in Commonwealth v Verwayen:

In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. [3]

[3](1990) 170 CLR 394, 456.

1. In addition, because the grant of leave is an exercise of judicial discretion other relevant factors must be considered. In this case, those factors include the previous opportunities that have been provided to the plaintiffs to rectify their pleadings and the detriment, delay and other prejudice to the defendant and other parties waiting their day in court if the plaintiffs’ application is granted.

1. The pleading rules require that every pleading shall contain in a summary form a statement of all the material facts on which the party relies.[4] A defendant is entitled to know the case that it has to meet.

   [4]Supreme Court (General Civil Procedure) Rules 13.02(1).

1. The defendant does not have to prove that the plaintiffs should not be granted leave to file the proposed further statement of claim. Rather, the plaintiffs who are seeking the grant of leave must establish that it is just that the Court exercise its discretion to grant leave.

1. The defendant submitted that regardless of whether the plaintiffs’ proposed pleading complies with the pleading rules, granting them leave to deliver the pleading would be unfair in view of the previous attempted pleadings and that it would sustain prejudice, including the further delay of the proceeding. Following the hearing in May, the plaintiffs have been given five further opportunities to deliver a pleading that complies with the pleading rules. In support of its submissions, the defendant relied on statements in Aon Risk Services Australia Ltd v Australian National University.[5] These included that courts must do justice to all litigants and that where a party had had a sufficient opportunity to plead their case, the court may have to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponents and other litigants.[6] The High Court rejected the notion ‘that a party has something approaching a right to an amendment’. The majority also stated with reference to the Court rules applicable in that case that speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The parties should be given a proper opportunity to plead their case, but limits may be placed upon re-pleading, taking into account delay and cost. An order for costs in favour of a party may not always provide sufficient compensation to achieve a just resolution. A just resolution of a proceeding does not require that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.[7] The burden of inconvenience and lost opportunity for preparation tends to fall heavily and without adequate repair on the party who has not been delinquent.[8]

   [5](2009) 239 CLR 175. The defendant also referred to cases that had applied the High Court’s judgment including Tinworth v WV Management Pty Ltd [2009] VSC 552.

   [6]Ibid 212 [94] quoting from Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.

   [7]Ibid 213 [98].

   [8]Heydon J at 222 [133] quoting Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 753 [15].

1. The defendant submitted that the plaintiffs have been given repeated opportunities to rectify their pleadings particularly their estoppel plea. The resumption of the trial has been delayed as a consequence and the costs of preparation greatly increased with much of that cost likely to be irrecoverable. The plaintiffs have sought and would be likely to continue to seek to amend their pleading in response to the defects that the defendant identified thereby attempting to improve their position as best they could along the way. The forensic effect of this process on the defendant was that it was forced to reveal its case before the plaintiffs’ case had concluded. The court could not be confident that the plaintiffs would comply with any court order.

1. The plaintiffs submitted that their proposed pleading was adequate and that the defendant was now raising criticisms that it had not previously raised.

The membership rule issue

1. I will first deal with the membership rule issue which is whether the plaintiffs satisfy the membership rule of the Association. A related question is what was and is the membership rule.

1. On 31 March 2017, I ordered that the plaintiffs specify in their statement of claim the basis upon which it is said that each plaintiff is a member of the Association.

1. The plaintiffs contend that rule 3 of the rules of the defendant filed in 1991 with the regulator contains the requirements for membership of the Church. It states:

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.

1. The defendant contends that following its incorporation, the membership rule was the model rule made pursuant to the Associations Incorporation Act 1981 and the Associations Incorporation Act 2012 and after 2015 the rules that it adopted.

1. The plaintiffs contend that 22 of the plaintiffs were founding members of the Church and that none of them have signed a letter of resignation: paragraphs [10], [11] and [12] of the proposed pleading. They were members of the Free Tongan Fellowship immediately before its incorporation. They plead that six of the plaintiffs became members after the incorporation of the Church: paragraph [13]. Incorporation occurred on 4 March 1991. The plaintiffs contend that the defendant admits that these plaintiffs were founding members, while the defendant’s case is that they have ceased to be members.

1. Paragraph 14 of the proposed statement of claim states:

The disputed founding members and the disputed members were:

a)   each baptised into the church;

b)   each of them were welcomed into the church by the then Minister Taniela Vaotangi in open congregation and on the respective dates mentioned above;

c)   and each of them [are] participated in the life of the church in that they were assigned to cell groups by the then Minister and were involved in fundraising for the church engaged in pastoral care and attended all church services and were active in the congregation.

d)     and each of them have never signed a letter of resignation resigning their membership of the church.

1. Paragraph 16 contends that at the time of the defendant’s incorporation, the admitted founding members and the disputed founding members, were persons who had been baptised, were practising members of the Free Tongan Fellowship Melbourne and were entitled to membership of the Church: paragraph [16].

1. The plaintiffs’ proposed statement of claim also pleads that the plaintiffs became and remain members of the Church by their acceptance of its doctrines through and upon their baptisms within the Church, their true acceptance of Christ and their willingness to become active members of the Church: paragraph [22]. The plaintiffs also contend that they are members of the Church as each of them is above the age of 18 and has been baptised into the Church, has satisfied the requirements of rule 3, has participated in meetings of the Church and has cast votes at quarterly meetings of the Church: paragraph [24]. The plaintiffs plead that they were and remain entitled to be recorded in the register of members as members of the Church and to be afforded the rights and privileges of membership in the Church: paragraph [34].

1. The plaintiffs’ membership pleading contains allegations related to, or incidental to, the plaintiffs’ claims that they became and are members of the defendant. Thus, they allege that the defendant failed to keep and maintain a register of members: paragraphs [25] and [30]; and failed to have a form for applications for membership: paragraph [28]; and made determinations as to who were members, which the plaintiffs contend were void: paragraphs [31]-[32]. They also contend that resolutions passed at a meeting of the defendant on 18 July 2015 to revoke the rules and adopt the model Rules made under the 2012 Act and subject to certain amendments were void and of no effect: paragraphs [37]-[40]. These pleadings are associated with the plaintiffs’ case.

1. The defendant attacked many parts of the plaintiffs’ membership proposed pleadings. Some of those criticisms are conceded by the plaintiffs in their written memorandum filed on 14 September 2017. I will not refer in detail to the parts of the proposed pleading that the plaintiffs accept in their memorandum should be struck out or require further amendment. I consider that many of the amendments that the plaintiffs propose should be made. My conclusions on the other significant criticisms made by the defendants of the plaintiffs’ membership pleading are as follows.

1. The plaintiffs’ Fellowship admission rule pleading in paragraphs 7 to 9 is said to be confusing. But, in my opinion the legal significance of the matters pleaded in paragraphs 7 to 12 , which concern the founding members of the defendant, are to be determined following full argument at trial. The identification of the founding members turns, at least in part, on evidentiary matters about whether the persons said to be founding members have remained members of the defendant. Paragraph 12 alleges certain persons to be founding members and, in my opinion, there is no necessity for the pleading to allege that they remain members. If that is in dispute, it is a matter for the defence.

1. I consider that paragraph 13 contains sufficient details of when other plaintiffs are alleged to have become members of the defendant.

1. I do not consider that paragraph 16 contains the confusion that the defendant alleges, the concept of ‘practising member of the Fellowship’ is a clear enough expression and can be the subject of evidence.

1. The defendant’s attack on paragraphs 14, 22 and 24 can be dealt with by provision of further particulars as I discuss below. I do not consider that paragraph 22 and 24 contain confusion as they contain clear statements that the plaintiffs have complied with rule 3. The fact that some of the plaintiffs said to satisfy rule 3 are also alleged to be founding members is not a pleading point. The possibility of overlap in the grounds relied on to establish membership is not a ground for striking out the pleading.

1. I accept that paragraphs 17 and 26 should be struck out or not allowed for the reasons the defendant advances.

1. Paragraph 33 on the other hand serves the purpose of identifying the dispute between the plaintiffs and the defendant and read in context is a valid pleading.

1. Paragraphs 31 and 32, as well as later paragraphs including paragraphs 35, 37, 39 and 40 are part of that section of the pleading that seeks to challenge the defendant’s determinations about its membership. They contain valid pleadings and a declaration is sought that those determinations are void.

1. I do not accept that paragraph 34 contains the confusion that the defendant alleges when the paragraphs to which it refers are taken into account. Paragraph 34 seeks to draw a conclusion based on the contents of previous paragraphs that the plaintiffs are entitled to be regarded as members.

1. On 21 August 2017, I ruled that the plaintiffs’ then proposed statement of claim did not include the material facts of their contention that they were members of the defendant. The pleading of those material facts is required because a matter in issue is how they put that case. The defendant contends that the proposed pleading still does not include those material facts and that that continued deficiency is one reason for not accepting the proposed statement of claim.

1. The plaintiffs submitted that the proposed pleading as to membership was adequate and that I should reverse my ruling of 21 August 2017. They argued that the defendant knows the plaintiffs’ case and that the Court must do justice between the parties in determining pleading issues. They asserted that while the case involves 30 plaintiffs, more than 200 members of the Tongan community are awaiting the Court’s determination of whether they are members or by the existence of an estoppel are to be taken to be members of the defendant. Equally, the defendant submitted that there were many members of the Tongan community affected by the delay in completing this proceeding.

1. The plaintiffs’ submitted that after its incorporation, the defendant continued the practices of the Fellowship and that it would be burdensome for the plaintiffs to be required to provide particulars of their participation in Church activities and meetings particularly as some of them had long been members. It would be a barren inquiry to require particulars of the matters set out in rule 3. The real issue was whether a person had to be Lotu Fehui to be a member.

1. In written submissions, the plaintiffs proposed in the alternative that they provide particulars of how they satisfied the membership rule. These proposed particulars were contained in the plaintiffs’ written submission filed 14 September 2017. In the written submission, the plaintiffs proposed to provide particulars of the date of baptism — but no particulars were given concerning the fifth, eighth, eleventh and twelfth, fourteenth to twenty-first, twenty-fifth and twenty-seventh plaintiffs. The particulars allege that each plaintiff was welcomed into the Church by the Minister on dates mentioned and that each participated in the life of the Church including attending Church meetings. Details of Church or congregational participation were given for some of the plaintiffs, but not given in respect of the plaintiffs mentioned in the third sentence of this paragraph or of the twenty-ninth plaintiff.

1. In written submissions in reply, the defendant submitted that the plaintiffs had not dealt with the fact that many plaintiffs left the Church between 1993 and 2006 including 9 out of the 10 ‘disputed founding members’. I referred to that contention in the 21 August 2017 ruling. The defendant argued that instead of dealing with the issue, the plaintiffs had offered a rolled-up and misleading particular, that each plaintiff ‘attended all church services and were active in the congregation’. No particulars had been given of the welcoming of the plaintiffs into the congregation. However, I do not accept the defendant’s submission that the plaintiffs must provide particulars of how they were welcomed or accepted into the Church as members. That is a matter of evidence.

1. A rolled up plea includes a pleading in the sense that there has been a failure to plead each material fact separately with particulars where necessary.[9] The rolling up of allegations will breach the pleading rules if a number of different allegations are pleaded in the one paragraph. However, where a number of plaintiffs make the same allegation, for example that they have all suffered the same detriment, the plea will not be a rolled up plea.

   [9]See for example Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Limited (No2) [2017] VSC 556[11] (Hargrave J).

1. I reject the plaintiffs’ submission that the ruling of 21 August 2017 should be reversed. I will not revoke my ruling of 21 August or the order of 31 March 2017 and I consider that if any further pleading is to be allowed, the plaintiffs must provide particulars of how they contend that they became members of the defendant, including of their baptism into the Church and of their participation in the life of the Church. Many of the plaintiffs who are to give evidence have provided outlines of evidence.

1. The question of whether persons who were founding members or once satisfied the membership rule are no longer members because they have ceased to participate in the life of the Church, although they have not signed a letter of resignation, is a matter to be determined at trial.

1. There is then the critical question of whether the Court should exercise its discretion to permit a further pleading to be delivered. To do so would result in at least the sixth attempt to provide proper pleadings since the commencement of the trial in May. I have taken into account the discretionary matters emphasised by the defendant as well as the plaintiffs’ submissions. I consider that I should allow a further pleading to be delivered to remedy the deficiencies in the membership pleading. The further pleading must contain the particulars set out in the plaintiffs’ written submission filed on 14 September 2017 and similar particulars in relation to other plaintiffs said to be members being the fifth, eighth, eleventh, twelfth, fourteenth to twenty-first, twenty-fifth, twenty-seventh and twenty-ninth plaintiffs, if claims are pressed in respect of them. The membership issue is the real issue in dispute between the parties and the pleadings do not raise the material facts necessary to determine this issue. The grant of leave will cause further delay, but is necessary in my opinion to determine the real issues in the case.[10] The circumstance that this case involves important questions for hundreds of members of the Tongan community also have to be kept in mind. The case differs from proceedings which only affect the parties before the court.

   [10]Civil Procedure Act 2010 s 7(1).

1. The plaintiffs and the defendant wish to resolve the membership issue. They wish to know how to determine who is a member and it appears that the life of the Church is, at least to some degree, on hold until the case is completed and judgment delivered.

1. As stated, I will require the plaintiffs to provide particulars of baptism and of participation in the Church in the form contained in their written submission of 14 September 2017 which appear to be the basis of their case that they satisfy rule 3 which in turn they contend is the membership rule. In that written submission, the plaintiffs have foreshadowed provision of particulars of most of the plaintiffs’ membership claims and these must be provided in respect of all of the plaintiffs in respect of baptism and participation in the life of the Church. The defendant contended that proposed particular (l) contained in paragraph 12 of the plaintiffs’ memorandum, which states the plaintiffs’ attendance at and voting at various meeting is a rolled-up allegation, but particulars, or proposed particulars, are detailed separately in respect of most of the individual plaintiffs and I will require that they be provided in respect of them all. I consider that the part of the proposed particulars which state: ‘at which they either voted or knew they could vote as they had voted previously or had seen non Lotu Fehui vote whose votes had been counted’ states matters which may be relevant to both the membership issue and the estoppel issue.

1. The plaintiffs must make clear whether membership claims are being pursued in respect of all of the plaintiffs including the seventeenth and eighteenth plaintiffs as their written submission memorandum does not foreshadow particulars of baptism and participation in the life of the Church in respect of all them.

1. Previously, I have required the plaintiffs to deliver a proposed pleading in draft form and heard any argument about its validity. On this occasion, taking into account the need to progress the proceeding, the view I have formed in respect of the proposal contained in the plaintiffs’ written submission about the membership pleading and the conclusion that I reach below concerning the estoppel pleading, I consider that it is appropriate to grant the plaintiffs leave to deliver a further statement of claim. The defendant took the opportunity in its written submissions in reply dated 18 September 2017 to make some submissions about the further proposals that the plaintiffs made in their written submission of 14 September 2017 and I have taken those submissions into account. The defendant will have the right to challenge the form of the further pleading when the plaintiffs deliver it.

1. The defendant’s written submissions state:

17. The dispute around the application of the Association’s rules governing membership raises issues that, although they remain obscured by the pleading, appears to boil down to the following questions:

a.Which (if any) of the 12 plaintiffs who it is admitted were founding members at the time of incorporation, remain members?

b.Which (if any) of the 10 plaintiffs alleged to have also been founding members (set out in paragraph [12]), were in fact founding members, and of those, which (if any) remain members?

c.Which (if any) of the 6 plaintiffs alleged to have become members after the Association’s incorporation (set out in paragraph [13]) became members of the Association, and of those, which (if any) remain members?

And perhaps also, although this is not presently pleaded –

d.Assuming any of the 10 plaintiffs alleged to have also been founding members were not founding members, did any of those plaintiffs become members of the Association after its incorporation, and if so, which (if any) remain members?

1. I discussed with the parties whether the membership issue could be decided without pleadings and perhaps by answering questions such as those identified by the defendant. I will discuss that further before making orders.

The estoppel claim

1. The parties made further submissions about the 16 plaintiffs who plead an estoppel binding the defendant as an alternative means of establishing their membership of the defendant. I will refer to them as the estoppel plaintiffs. Their claim is an alternative claim as they all contend that they are members of the Association.

1. The parties did not suggest that in determining the present application, I should rule on whether the plaintiffs could establish their membership of the defendant by estoppel when it has rules including, as the defendant contends, the model rules contained in the Associations Incorporation Reform Regulations 2012 and modified rules that it adopted.

1. The defendant contended that the estoppel plea should be struck out entirely with no leave being granted to re-plead. This contention is based on the discretionary considerations which I have previously summarised.

The estoppel plaintiffs whose membership of the defendant may have ceased

1. Nine of the sixteen estoppel plaintiffs plead periods of membership of the defendant that end many years ago: in five cases at least 20 years ago and in the other four cases nine years. In the case of the twenty-second, twenty-third, twenty-eighth, twenty-ninth and thirtieth plaintiffs, their pleadings suggest that the last year of their membership was at least 20 years before the proceeding was commenced. In the case of the other estoppel plaintiffs: the ninth, tenth, thirteenth and twenty-fourth, their pleading suggests that the last year of their membership was nine years before the commencement of the proceeding, that is in 2006.

1. In the ruling of 21 August 2017, I said that the consequences of estoppel plaintiffs ceasing to be members required the plaintiffs’ attention. No material change of the pleading in respect of these plaintiffs is contained in the draft statement of claim for which leave is now sought. The plaintiffs were given the opportunity to correct any error or ambiguity or error in their pleading of these matters, but did not seek to alter it.

1. The relief sought by the plaintiffs includes a declaration that they became and remained members of the Church. A further declaration is sought that the defendant is estopped from denying that all the estoppel plaintiffs are members of the defendant.

1. The plaintiffs contend that the fact that people may have left the ‘church’ is not a basis for denying equitable relief and that membership of an association normally continues indefinitely provided that subscriptions or other monies required by the rules are paid. They submitted that the departures from the Church of some of the plaintiffs were ‘directly referable to dictatorial conduct engaged in by the then priest’. The plaintiffs submitted that ‘on the assumption that the defendant is estopped from denying these people membership [they] should still be afforded their membership rights as their departure was intimately connected to the underlying dispute in the case’. However, despite opportunities the plaintiffs have not pleaded any material facts that go to these issues. They have continued to plead that the last year of a number of the estoppel plaintiffs’ membership was many years ago.

1. Because nine of the estoppel plaintiffs have on the facts contained in their own pleading long since ceased to be members they cannot obtain the relief that the estoppel plaintiffs seek. To allow the plaintiffs to rely on the proposed pleading of an estoppel plea in respect of those plaintiffs would be futile. In the exercise of discretion, I refuse to allow the re-pleading of the estoppel claim in respect of the ninth, tenth, thirteenth, twenty-second, twenty-third, twenty-fourth, twenty-eighth, twenty-ninth and thirtieth plaintiffs. Because of that conclusion, I need not consider the defendant’s attack on the pleading of the thirtieth plaintiff’s estoppel pleading.

1. My conclusion leaves seven estoppel plaintiffs, being the first, second, third, fourth, sixth, seventh and twenty-sixth plaintiffs.

The remaining estoppel plaintiffs’ claims

1. Dealing then with the remaining estoppel plaintiffs, in order to establish an equitable or promissory estoppel they must establish the following matters. First, that they assumed that a particular legal relationship existed between them and the defendant or that they expected that it would exist between them and that they would not be free to withdraw from the relationship. Secondly, that the defendant induced them to adopt that assumption or expectation. Thirdly, that they acted or abstained from acting in reliance on that assumption or expectation. Fourthly, that the defendant knew or intended that they so act or abstain from acting. Fifthly, that their action or inaction in seeking membership by formal means such as submitting a written application would occasion them detriment if their assumption or expectation that they are members is not fulfilled. Sixthly, that the defendant failed to act to avoid that detriment by fulfilling that assumption, expectation or otherwise.[11]

   [11]Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-9 (Brennan J).

1. The basis of all equitable estoppels is that equity will not permit an unjust or unconscionable departure by a party from an assumption or expectation of fact or law, present or future, which that party has caused another party to adopt for the purposes of their legal relations.[12]

   [12]Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770, 810 [217] (Nettle J).

1. The remaining estoppel plaintiffs’ case as summarised in their written submissions was that for over 25 years, the former Minister and the present Minister encouraged persons to participate in the life of the Church by joining cell groups, participating in general meetings and raising funds for the Church, but at no time told them that they were not members of the Association incorporated in 1991. For over 25 years the members of the Werribee congregation believed that they were members of the Church because of the positive acts or acquiescence of the Ministers of the Werribee Church in acts that they performed. They relied on those acts as they participated in the life of the Church. Putting their case another way, when participating in the life of the Church at the direction of the Ministers they believed they were members of the defendant. In my opinion, whether that belief or assumption existed is to be determined following the leading of evidence at trial.

1. An issue arises whether the remaining estoppel plaintiffs have pleaded conduct being a representation or inducement or other conduct by the defendant that they were members of it. They plead that the Church Ministers had power and authority over members of the Church and could direct them to carry out tasks on its behalf. They allege that the Ministers welcomed the estoppel plaintiffs to the congregation of the Church as members and directed them to take part in aspects of Church life. This is alleged to be done by the Ministers exercising their authority over members of the defendant. Later, in the same paragraph of the proposed pleading, the plaintiffs plead that the Ministers had authority to create a register of members and to enter members on the Register. It will be a matter for evidence at the trial whether the Ministers possessed or could be taken to have possessed authority to act on behalf of the defendant in such matters or other relevant matters. The question of whether the Ministers had authority to do the things on which the plaintiffs rely, for instance to accept persons as members of the Church, is a question to be determined following evidence and argument at trial and not on a pleading dispute. The proposed pleading sufficiently alleges that the Ministers, when acting on behalf of the Church, carried out certain actions. I do not accept the defendant’s attack on paragraph 41 of the proposed pleading.

1. The proposed pleading then places particular emphasis on the allegation that, to the knowledge of the Ministers, the remaining estoppel plaintiffs participated as members in the quarterly congregational meetings of members of the Church and in the annual meetings of the Church both of which were presided over by the Minister. They contend that they voted in such meetings on resolutions relating to the affairs of the Church and that their votes were counted. They say that they participated in the life of the Church including becoming members of cell groups in the belief that they were members of the Church. The proposed pleading particularises many actions carried out by the estoppel plaintiffs including attending services, meetings and participating in fund raising and making financial contributions. Sometimes these are described by reference to the congregation, sometimes by reference to the ‘Church’ and sometimes by reference to the ‘church’.

1. To take the first plaintiff as an example. The proposed pleading, which is missing some of the introductory words, alleges that she believed that she was a member of the Church and that the Minister knew that she held that belief. It pleads that she was welcomed into the congregation of the Church as a member in 1986. She was then a child. The proposed pleading further alleges that after relocating to Brisbane, she returned as a member in May 2014 and was welcomed again to the Church by the then steward who acted under the Minister.

1. The remaining estoppel plaintiffs’ proposed pleading alleges that the second, third, sixth, seventh, ninth and twenty-sixth plaintiffs have been members of the committee of the Church and in the case of the seventh plaintiff, the secretary of that committee. The Minister was the chair of the committee. They allege that they voted at committee meetings when the Minister was present. The third plaintiff alleges that the Minister directed him to assume the position of steward of the Dandenong congregation of members from the years 2000-2017, as a member of the Church. The sixth plaintiff alleges that he was a caretaker for the Werribee property and in that role was directly answerable to the Minister. The twenty-sixth plaintiff alleges that the Minister directed him in his role as a choir leader and assistant steward for the Werribee congregation, a role to which he was elected.

1. The fact that the plaintiffs’ pleading does not allege that plaintiffs are recognized as Lotu Fehui is not a matter that invalidates the pleading that they seek to make.

1. The defendant submitted that no conduct by or on behalf of the defendant is pleaded that could be capable of reasonably inducing a person to believe that they were a voting member of the Association as opposed to a congregational participant. However, some of the plaintiffs allege that they had voted at meetings and that their votes were counted. The significance of these facts, if proved, to the question of reliance is a matter to be determined at the trial. I do not consider that any further details of participation are required as the defendant contends. That is a matter of evidence. However, in the circumstances of this case, where some evidence has already been given, inconsistencies alleged between evidence and pleadings as appears to be the case in paragraph 42 (b) are not permitted.

1. I accept the defendant’s submissions that paragraph 44 erroneously refers to paragraph 43.

1. The allegations of reliance by participation in the life of the Church are sufficient to allege a causal link between plaintiffs; allegations concerning the Ministers’ conduct and the detriment that the estoppel plaintiffs allege.

1. In my ruling of 21 August, I stated that the sixteen estoppel plaintiffs needed to plead clearly whether they were asserting that they believed that they were members of the Church, being the Association, or members of the congregation and also that material facts of their estoppel plea needed to be pleaded. In my opinion, the proposed pleading in respect of the remaining estoppel plaintiffs does contain such a pleading.

1. The defendant submits that a distinction needs to be drawn between participation in the life of the congregation and membership of the Church as an incorporated Association. However, in considering that distinction it is important to bear the nature of the defendant Association in mind. It is the legal personality of a Church community or communities made up of members of the Tongan community. Whether the plaintiffs or other relevant persons such as the Ministers distinguished between membership of the Church and participation in the congregation and the legal significance of any failure to make that distinction are matters to be determined at trial. If the facts pleaded by the plaintiffs are correct, no membership application forms existed and no membership register was maintained. If those facts are proved, the responsibility for those omissions may be the Association’s not the plaintiffs’. The facts contained in the plaintiffs’ proposed pleading, which of course have yet to be proved, might suggest that there to have been a lack of focus in whether actions were being undertaken as a member of a congregation or of the Church Association. I do not consider that the pleading is defective because it contains references to congregational participation rather than Church participation.

1. There is then the question of detriment. I consider it arguable that in the case of this Association, a detriment occurs if persons are led to believe that they were members but later are told that they never were. I do not accept that, as the defendant contends, it will always be the case that it is no detriment for a person to be deprived of something that they never had. The effect of an equitable estoppel when established is to prevent the person bound by the estoppel from denying a benefit or right to a person that the law may not have recognized. Thus, in this case where persons have not been formally admitted as members, an argument that the defendant was estopped from denying their membership cannot be regarded as futile if there is evidence that may support such a claim.

1. If the remaining estoppel plaintiffs can establish the other elements of an estoppel, then as the defendant contends that they are not members of the Church, they may well be able to establish that the defendant has failed to act to avoid the detriment that they suffered by not being members recognised in law.

1. I do not consider that in this pleading dispute, the defendant can answer the plaintiffs’ claims by submitting that they can apply for membership now. That is because the plaintiffs contend that they are already members or that the defendant is estopped from denying their membership.

1. My conclusion in respect of the estoppel plea is that in respect of the following plaintiffs: the first, second, third, fourth, sixth, seventh and twenty-sixth plaintiffs, the proposed pleading satisfies the pleading rules. The pleading in respect of the other estoppel plaintiffs does not comply with the pleading rules because the pleading alleges that their involvement with the Church, at least through the congregation at Werribee, last occurred many years ago. As this issue was referred to in my ruling of 21 August, no further opportunity should be given to those plaintiffs to re-plead their estoppel case.

1. I have considered the discretionary considerations governing the grant of leave to amend pleadings that I have summarised previously. As I consider that the pleading in respect of the remaining estoppel plaintiffs is a valid pleading, I propose to allow it.

1. I do not consider that paragraph 113 of the proposed pleading, which pleads an inducement leading to a common assumption of membership discloses an arguable pleading of estoppel. I expressed that view in the ruling of 21 August. I said that some parts of this paragraph of the pleading were unintelligible. The pleading has not, in relevant terms, been amended since. The plea appears to suggest that the sole test provision of the rules, the failure of the Association to keep and maintain a register of members or have any application form and the failure to inform the plaintiffs that there was no membership register created an assumption that the plaintiffs were members. In my opinion, that paragraph is not a proper pleading and it is futile.

1. Criticisms were raised by the defendants in respect of the prayers for relief, but save for the necessary amendment of the number of plaintiffs who are able to seek relief by way of estoppel because of my ruling expressed above, I consider that the other prayers for relief are arguably available if the facts pleaded that are connected to them are proved.

Conclusion

1. The plaintiffs have been given leave to deliver a number of proposed statement of claims and then the defendant has had the opportunity of objecting to them. On this occasion I have formed the view that the estoppel pleading in respect of some of the estoppel plaintiffs contains a valid pleading. I have formed the view that a further membership pleading should be allowed. The proposals contained in the plaintiffs’ memorandum on which the defendant made written submissions in reply contains a basis for a valid membership pleading in respect of all the plaintiffs for whom claims are pressed. I therefore propose to grant the plaintiffs leave to deliver a further statement of claim which leave will be in the terms that I set out below:

1. The pleading contains a number of typographical errors and imprecision of wording, including apparent copying of matters from witness statements, for example in paragraph 64. However, they can be remedied by a re-wording of paragraphs. A number of such matters are referred to in the plaintiffs’ written submissions and many amendments are proposed. A significant amendment proposed by the plaintiffs are the insertion of the term ‘Church’ in a number of places.

1. I will allow those amendments to be included in the further pleading to be filed as a result of this ruling with the exception of amendments in respects of estoppel pleas made by the plaintiffs whose claims I have concluded to be futile. The defendant will be able to challenge parts of the further pleading when delivered if it does not accord with this ruling or is otherwise invalid.

1. Subject to any further submission as to whether the case should continue on pleadings, I grant the plaintiffs leave to deliver a further statement of claim containing:

(a)       particulars of the membership issue as foreshadowed in the plaintiffs’ written submission filed on 14 September 2017 relating to baptism and participation in the Church and containing similar particulars in respect of all of the plaintiffs in respect of whom the case is pressed;

(b)      the estoppel pleading contained in the proposed pleading in respect of the following plaintiffs: the first, second, third, fourth, sixth, seventh and twenty-sixth plaintiffs;

(c)       the further pleading may contain the changes foreshadowed on pages 20 to 24 of the plaintiffs’ submission filed on 14 September 2017, save for those paragraphs, which appear to be paragraphs 23-28 and 31-36, that relate to estoppel claims made by the ninth, tenth, thirteenth, twenty-second to twenty-fourth and twenty-eighth to thirtieth plaintiffs as those claims will be struck out or not allowed;

(d)      the deletion of paragraphs 15, 17, 26, 42(b) and 113 of the proposed further pleading;

(e)       paragraphs 42 and 44 need to be redrafted to respond to the defendant’s criticisms of them that I have found to be valid.

(f)       liberty to apply will be reserved to the parties.