Popovic & Ors v Tanasijevic & Ors (No 2) No. Scgrg-96-279 Judgment No. S334 - [1999] SASC 334

POPOVIC & ORS v TANASIJEVIC & ORS (NO 2)

[1999] SASC 334

1 OLSSON J On 9 August 1999 I published written reasons for an order, which I then made, dismissing an application by the defendants for summary judgment.
2 I held that such application, made in the course of the trial at the close of the plaintiffs’ case, was incompetent or, alternatively, inappropriate.
3 In those reasons (to which I shall refer as "the first reasons") I referred to the fact that the application contained an alternative prayer for relief that the plaintiffs’ action be dismissed as an abuse of process. This sought to enliven the inherent jurisdiction of the Court to control its process.
4 Upon dismissal of the primary application Mr Ross-Smith sought to press the alternate prayer for relief. An issue immediately arose as to whether it was proper or appropriate for the Court to entertain it in the circumstances.
5 The present application derives from the same set of circumstances as those summarised in the first reasons (Popovic & Ors v Tanasijevic & Ors [1999] SASC 330). Indeed, it seeks to ventilate what are essentially the same merit issues as are therein adverted to. I will, therefore, not retraverse the ground already covered in those reasons beyond the degree necessary to render the present reasons comprehensible.
6 It is to be recalled that, reduced to the most simplistic description, the plaintiffs’ case seeks to advance three major claims to relief.
7 First, it seeks a variety of declarations, pursuant to the jurisdiction vested in the Court by s 31 of the Supreme Court Act 1935, designed, in effect, to clarify the proper lawful composition of the Committee of Management and the general membership of the Serbian Community Welfare Association ("SCWA"). Moreover, it seeks to establish that the original Constitution and Rules of the SCWA, bearing on its membership, have never lawfully been amended. Major issues in that context are whether certain alleged general meetings were ever lawfully convened and/or conducted, so as to give rise to valid relevant resolutions of members, or actually convened or held at all.
8 Second, it seeks orders for the rectification of the original Constitution and Rules, on the basis that it is said that the solicitor who drafted them did not carry into effect the instructions which were given to her.
9 Finally, it asks for relief, pursuant to s 61 of the Associations Incorporation Act, 1985, on the ground that the affairs of the SCWA have been conducted in a manner that is oppressive or unfairly discriminatory against a member or members, or in a manner that is contrary to the interests of the members as a whole. In that regard particular reliance is placed on s 61(7) of the Associations Incorporation Act, which stipulates that:-

For the purposes of an application under this section, a breach of the rules of an incorporated association by the committee of the association may be regarded as constituting action that…

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

AGLC: Popovic & Ors v Tanasijevic & Ors (No 2) No. Scgrg-96-279 Judgment No. S334 [1999] SASC 334
Case: [1999] SASC 334
Decision Date: 11 August 1999

CaseChat Overview and Summary

In the case of Popovic & Ors v Tanasijevic & Ors (No 2) No. Scgrg-96-279, the plaintiffs sought a variety of declarations and orders to clarify the lawful composition of the Committee of Management and the general membership of the Serbian Community Welfare Association (SCWA). They also sought rectification of the original Constitution and Rules of the SCWA and relief under the Associations Incorporation Act, 1985, claiming oppressive conduct by the defendants. The defendants contested the plaintiffs' standing to bring the proceedings, asserting that the action was incompetent due to a lack of standing. The primary issue before the court was whether it was appropriate to entertain an application for summary judgment based on the inherent jurisdiction to control abuses of process, made at the close of the plaintiffs' case.

The court considered the principles governing the inherent jurisdiction of the court to control abuses of process, emphasizing that such jurisdiction is generally exercised prior to trial. The court noted that it is inappropriate to entertain such an application during trial unless there is an unexpected development. The court found that the application in question was belated and based on a legal and factual situation apparent to the defendants long before trial. The application aimed to avoid facing an evidentiary election and develop a no case submission. The court concluded that entertaining the application would disrupt the trial process, delay the proceedings, and add to the costs of litigation. The court found the application to be an abuse of process and declined to entertain the alternative prayer for relief.

The final orders of the court were that the alternative prayer for relief, seeking to dismiss the plaintiffs' action as an abuse of process, was declined. The court did not entertain the application on the basis that it was inappropriate and an abuse of process.

Orders