Peters & Ors v Kerle & Ors - [1997] QSC 68

IN THE SUPREME COURT

OF QUEENSLAND No. 364 of 1994

Brisbane

Before the Hon. Justice Fryberg

[Peters & Ors v Kerle & Ors]

BETWEEN:

GUSTAV PETERS, HANS STUTTE AND GREGORY WILLIAM HECK representing themselves and others.
Plaintiffs
AND:

LESLIE B KERLE, BEVAN R WENDT AND KEVIN L KREIS representing themselves and others.
Defendants

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 24th April 1997

CATCHWORDS: ASSOCIATIONS AND CLUBS - Rules and meetings - Whether rules of association envisage membership by individuals - Whether compliance with rules relating to withdrawal from membership

ASSOCIATIONS AND CLUBS - Incorporated associations - Constitution as member - Whether unincorporated association can be a member of an incorporated association - Associations Incorporation Act 1956 (S.A.) - Associations Incorporation Act 1985 (S.A.) ss.3, 4(2)
ASSOCIATIONS AND CLUBS - Expulsion, suspension and disqualification - Grounds for expulsion - Disobedience of constitution and by-laws of association.

COUNSEL:W. Sofronoff Q.C. and with him R. Douglas for the plaintiffs
F.L. Harrison Q.C. and with him P. Hack for the defendants

SOLICITORS: Bain Gasteen for the plaintiffs
Crouch & Lyndon for the defendants

HEARING DATES: 22nd - 24th March 1995

IN THE SUPREME COURT

OF QUEENSLAND No. 364 of 1994

Brisbane

Before the Hon. Justice Fryberg

[Peters & Ors v Kerle & Ors]

BETWEEN:

GUSTAV PETERS, HANS STUTTE AND GREGORY WILLIAM HECK representing themselves and others.
Plaintiffs
AND:

LESLIE B KERLE, BEVAN R WENDT AND KEVIN L KREIS representing themselves and others.
Defendants

REASONS FOR JUDGMENT - FRYBERG J.
Delivered the 24th day of April, 1997

The facts

The township of Marburg nestles at the foot of a range of hills between Ipswich and Toowoomba. The trains no longer run there and the Warrego Highway was rerouted around it years ago. But it was built before the trains and the highway. It was formed on the banks of Black Snake Creek around 1870[1], and many of the folk who settled there were of German extraction. Not surprisingly, many of them were of the Lutheran faith. In 1888, some of those folk came together to establish a Lutheran church. By 1900, they were known as the Lutheran Church at Marburg and had acquired land for the purposes of a church and a cemetery. Later, they changed the name of their church to "Trinity Evangelical Lutheran Church, Marburg". Surprisingly, it seems they had no constitution[2]. Perhaps their views on that subject resembled those once "quoted" by one of a different faith[3]. However that may be, by some mechanism they appointed three members of the congregation to hold their land pursuant to nominations of trustees registered under the Real Property Acts.
[1]Moreton Shire Cultural Heritage Strategy Study, vol 2, 1993-5, pp.26ff.
[2]See item 1 in the index to section C of exhibit 1, where the 1941 constitution is described as the "original" constitution.
[3]"Unhappy Land! where demagogues uprear
Adulterous foreheads, reeking with pollution!
Catching full oft the unsuspecting ear
Of innocence with their villainous elocution;
And eke presenting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] QSC 68
Decision Date: 24 April 1997

CaseChat Overview and Summary

The case of Peters & Ors v Kerle & Ors involved a dispute between two factions of the Marburg congregation, a Lutheran church, over their membership in the Lutheran Church of Australia (LCA). The plaintiffs, representing one faction, sought declarations that the congregation was a member of the LCA and that they were members of the congregation. They also sought an injunction against the defendants, representing the other faction, from interfering with their use of the church property. The court had to determine whether the Marburg congregation had ever been a member of the LCA, and if so, whether it had validly terminated that membership. The court found that the constitution of the LCA did not envisage individual membership, only membership by congregations. It also found that the Marburg congregation had become a member of the LCA through its delegates at the constituting convention in 1966, but that it had not validly terminated that membership as required by the constitutions of both the LCA and the Marburg congregation. The court also found that the plaintiffs had been unlawfully expelled from the congregation and granted them the declarations they sought, but declined to make the declaration regarding the congregation's membership of the LCA as it was not sought. The injunction was also declined as the plaintiffs had not demonstrated a sufficient interest in the use of the church property.

Orders