Perdikaris v Australian National Drag Racing Association Inc

[2006] NSWSC 629

CITATION:	Perdikaris v Australian National Drag Racing Association Inc [2006] NSWSC 629 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	09/06/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	06/09/2006
DECISION:	Mandatory injunction granted until close of current meeting. Costs plaintiff's costs in the cause.
CATCHWORDS:	PROCEDURE - Injunctions - Defendant incorporated association in South Australia conducts drag racing events - Plaintiff a member in particular class - Rules provide for handicap index based on new National Elapsed Time Record plus 0.5 seconds - Plaintiff established new National Elapsed Time Record for his class of 9.671 seconds - Defendant set record at 9.45 seconds and new index at 9.95 seconds - Plaintiff' s evidence he non-competitive at that index - Mandatory injunction sought requiring defendant to conduct events already started at index of 10.171 seconds in plaintiff's class - Whether serious question to be tried - Whether Associations Incorporation Act 1985 (SA), s 27(1) as to validity of contracts applicable - Whether claim of oppressive or unreasonable acts under s 61(4)(g) should be raised in a South Australian Court - Whether irreparable damage of non-monetary kind sufficient to ground injunction - Whether balance of convenience favoured no injunction as drag racing meeting had already commenced - Whether 8 days between knowledge of new index and application should lead to refusal of application - Whether injunction sought in essence to support an implied negative stipulation in contract with members that defendant would not conduct meetings inconsistently with its rules - Whether damages an adequate remedy
LEGISLATION CITED:	Associations Incorporation Act 1985 (SA)
PARTIES:	Bill Perdikaris - Plaintiff Australian National Drag Racing Association - Defendant
FILE NUMBER(S):	SC 3173/06
COUNSEL:	Mr D Allen - Plaintiff Mr Angus Grant - Defendant
SOLICITORS:	Proctor & Associates - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 9 JUNE 2006

3173/06 BILL PERDIKARIS v AUSTRALIAN NATIONAL DRAG RACING ASSOCIATION

EX TEMPORE JUDGMENT

1 Australian National Drag Racing Association, the defendant, is an association incorporated under the Associations Incorporation Act 1985 (SA). It conducts national drag racing events. Bill Perdikaris, the plaintiff, is a member of ANDRA.

2 ANDRA’s Drag Racing Rule Book for 2005/2006, in clause 5.15, states that it has established a system of national class indexes for the handicapping of Group Two classes and indexes will be based on the ANDRA national record plus 0.5 seconds for classes other than supercharged Competition Eliminator classes.

3 Mr Perdikaris races a vehicle in Group Two under Super Stock BMS class.

4 Clause 5.15 of the Rule Book is supplemented by cl 6.2, headed “ANDRA National Class Index Procedure”. It states that the purpose of the procedure is to clearly describe the basis for calculation and method of operation of the National Indexing System as used by ANDRA for all Group Two competition and the policy may be viewed at a specified website.

5 The policy available on the website stated in cl 6.1:

“For all classes in Competition Bike and Super Stock, and naturally aspirated classes in Competition Eliminator, a factor of 0.5 seconds will be added to the relevant ANDRA National Elapsed Time Record to produce the Class Index”.

6 The Rule Book at cl 2.3 sets out the 2005/2006 Australian Drag Racing Series. They included a race at Palmyra Dragway in Queensland on 21 to 22 April 2006, followed by a race at Willowbank Raceway, Queensland, from today until Sunday 11 June 2006.

7 The evidence of Mr Perdikaris, which was unchallenged for the purpose of today’s application, was that at the last race meeting at Mackay in Queensland he set a new National Elapsed Time Record of 9.671 seconds.

8 It was submitted that there was no evidence of the date upon which that Mackay meeting was held.

9 In my view, the inference that I should draw is that the Palmyra Dragway meeting referred to in the Rule Book was one and the same as the meeting at Mackay, to which Mr Perdikaris swore, and that there has been no other meeting since 22 April 2006.

10 The meeting at Willowbank Raceway has already commenced and some events have been held.

11 If the rule as stated in cl 5.5 had been followed, 0.5 seconds should have been added to the new National Elapsed Time Record of 9.671 seconds set by Mr Perdikaris to give the new index for all classes in Super Stock.

12 Mr Perdikaris was successful at a tribunal hearing that approved modifications he had made to his cylinder heads. The Tribunal determined that he was entitled to be paid any prize money and championship points due to him from the Mackay event. It recommendation that ANDRA examine its Rule Book to categorically include all modifications that are accepted and all modifications that are deemed to be illegal.

13 Following the Tribunal’s determination, Mr Perdikaris received a document entitled “ANDRA CLARIFIES GROUP 2 CYLINDER HEADS RULINGS”. It stated that for the BMS class the minimum was 9.45 seconds to which the factor of 0.5 of a second was added resulting in a new index of 9.95 seconds. The document does not disclose the name of the person who set the record, the track where it was set or the date on which it was set. All this information appears on the website under the heading “ANDRA NATIONAL RECORDS AND GROUP TWO CLASS INDEXES – 26/05/06” for other classes and for some other classes in Group Two – Super Stock Eliminator.

14 The evidence of Mr Perdikaris was that at an index of 9.95 seconds he is uncompetitive. He said that if the current race meeting over this weekend is held with that index, he will not be competitive. He doubts that he will even pass qualifying. He asserts that the appropriate index should be 10.171 seconds, applying ANDRA’s stated policies to his establishment of a new National Elapsed Time Record.

15 Mr Perdikaris seeks an interlocutory order that ANDRA conduct or cause to be conducted the race meeting being held at Willowbank Raceway in Brisbane from today until Monday, so that the index to be applied to the modified sedan class is the same as for the last race meeting, except that a new index of 10.171 be set for the class designated as BMS.

16 It was submitted that there is no serious question to be tried as the document to which I have referred states that a new National Elapsed Time Record has been set. In my view, there is a serious question as to whether that statement is accurate. The Rule Book indicated no meeting between the Mackay meeting and the one today, and the evidence establishes that a record of 9.45 seconds was not established at the Mackay meeting.

17 It seems to me, therefore, that there is a serious issue as to whether the defendant has exceeded its power by altering an index inconsistently with its own rules.

18 Since ANDRA is incorporated under a South Australian Act, it is subject to the terms of that Act. Section 27(1) of the Associations Incorporation Act 1985 (SA) provides that:

“A contract made with an incorporated association is not invalid by reason of any deficiency in the capacity of the association to enter into, or carry out, the contract unless the person contracting with the association has actual notice of the deficiency.”

19 In my view, however, that provision does not apply in the present circumstances. It is not a question of the invalidity of any contract between ANDRA and Mr Perdikaris as a member, but rather whether the association has acted inconsistently with its own rules.

20 The summons also sought an order pursuant to the Associations Incorporation Act 1985 (SA), s 61(4)(g), which deals with oppressive or unreasonable acts. It is pointed out that if that relief is to be sought, the appropriate venue for it is the Supreme Court of South Australia in which State ANDRA is incorporated. However, it does not seem to me that reliance is placed upon that provision so far as today’s application is concerned.

21 It was submitted that no irreparable damage will be suffered by Mr Perdikaris if an injunction is not granted. It was said that drag racing is a part-time pastime of Mr Perdikaris and the only suggestion of pecuniary interest is the possibility that if he won this weekend’s competition, based upon the index that he seeks, he might attract a sponsor.

22 But it seems to me that irreparable damage is not confined to a pecuniary concept. Mr Perdikaris has entered a sporting event administered by the defendant, with a view to the prestige of winning. If he is denied the opportunity to win an event this weekend, under the newly proposed index of ANDRA, because he will be non-competitive, it does seem to me that irreparable damage will be done to his prospects as a performer in drag racing events conducted by ANDRA.

23 It was said that the application is misconceived because the index applies to all equally. But that submission is inconsistent with the evidence to which I have already adverted of Mr Perdikaris that he will be non-competitive which, for the purpose of this application, was not challenged.

24 It was submitted that the balance of convenience favours an injunction not being granted because this weekend’s competition has already begun, and there will be a difficulty in recalculating event results under the index proposed, and there will be difficulty in advising competitors as to the index, if it is to be changed.

25 That does not seem to me to be an insuperable problem. Since the competitors are, no doubt, in the environs of Brisbane for the purpose of the meeting, one would have thought that a notification of a change in index would not cause great disruption to the competitors nor to the events.

26 The evidence is that Mr Perdikaris learned of the new index on 31 May 2006, but his application was not brought until yesterday, 8 June 2006. In those circumstances it was submitted that I should exercise a discretion against granting the injunction.

27 It seems to me, however, that in order for Mr Perdikaris to take advice and assemble the documents that he has for the purpose of the application, it was not unreasonable that a period of eight days elapsed between his first becoming aware of the newly proposed index and his bringing the application.

28 It is true that the injunction that is sought is in the form of a mandatory injunction requiring ANDRA to act in a particular way. Nonetheless, it seems to me that, in essence, what is sought is the enforcement of an implied negative stipulation in ANDRA’s contract with Mr Perdikaris that it would not conduct its meetings inconsistently with its rules.

29 Notwithstanding, therefore, the rarity of granting a mandatory injunction on an interlocutory basis, I am of the view that it is appropriate for me to do so.

30 I have said that irreparable damage would be done if the race meeting is conducted on the new index proposed by ANDRA. In my view, damages are not an adequate remedy in the circumstances of this case.

31 I propose, therefore, to grant an order in terms of paragraph 1 of the summons limited to the completion of the meeting on 12 June 2006, if Mr Perdikaris gives the usual undertaking as to damages.

32 I note that Mr Perdikaris, through his counsel, gives the usual undertaking as to damages.

33 In my view, the appropriate order is that the costs of today’s proceedings be the plaintiff’s costs in the cause.

34 I stand the matter over before the Registrar at 9.30 am on Friday, 16 June 2006.

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26/06/2006 - Austaian instead of Australian in title of judgment - Paragraph(s) Title of judgment