Popovic & Ors v Tanasijevic & Ors (No 4) No. Scgrg-96-279 Judgment No. S351 - [1999] SASC 351

POPOVIC & ORS v TANASIJEVIC & ORS (NO 4)
[1999] SASC 351

OLSSON J

Introduction

Following publication of my reasons for decision in Popovic & Ors v Tanasijevic & Ors (No 3) [1999] SASC 339 I duly entertained submissions from counsel concerning the detailed basis of the defendants’ contention of no case to answer. Inter alia, this has enabled me to obtain a full appreciation of the nature of that contention and the issues arising in relation to it, in manner contemplated by the above reasons. I am thus in a position, properly, to determine whether it is appropriate, in the circumstances, to entertain a no case submission or to categorise it, for the purpose of coming to a conclusion as to whether the defendants ought to be put to their election not to call oral evidence, in the event that the application should be entertained.
In the reasons for decision previously published by me (Popovic & Ors v Tanasijevic & Ors [1999] SASC 300, Popovic & Ors v Tanasijevic & Ors (No 2) [1999] SASC 334) I have already given a broad outline of the nature of the present proceedings and their procedural development to this time. Against that background I therefore proceed, directly, to a consideration of the issues now sought to be agitated by Mr Ross-Smith, of counsel for the defendants.
As I have indicated in my earlier reasons, a primary argument advanced by Mr Ross-Smith is to the effect that this action, which was commenced on 31 January 1996, cannot succeed, on any possible view of the facts or law, because none of the three plaintiffs has any standing to obtain the relief sought. As the situation of each of the three plaintiffs is different it is necessary to consider what is put against them in turn.
He also seeks to mount other challenges, to which I shall come in due course.
I will therefore commence with a review of relevant aspects of the evidence as it stands on closure of the plaintiffs’ case.

Relevant Historical Background

Over a period of some decades a significant number of persons migrated from the Balkans region and settled in South Australia. Within the community they formed in this State they have established a series of bodies designed to address their cultural, religious, welfare, sporting and other general needs. The evidence to date suggests that, dependent on definition, this community totals at least about 2500 persons. It may be substantially larger. I note that this number may not be reflective of all Serbians living in South Australia who were either born in Serbia or have parents of Serbian extraction. As was pointed out in evidence there are people who may have declared themselves to be Serbian, for example, where they may not, themselves, have Serbian forebears, but have married a person of Serbian background.
On 15 July 1976 a body known as the Serbian Community of South Australia Incorporated (the “SCSA”) was incorporated pursuant to the…

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 4) No. Scgrg-96-279 Judgment No. S351 [1999] SASC 351
Case: [1999] SASC 351
Decision Date: 24 August 1999

CaseChat Overview and Summary

In the matter of Popovic & Ors v Tanasijevic & Ors (No 4), the Supreme Court of South Australia considered the defendants' submission of no case to answer. The defendants argued that the plaintiffs lacked standing to pursue the claims due to their alleged lack of membership in the Serbian Community Welfare Association of South Australia (SCWA). The court found the situation to be complex, involving numerous intertwined factual and legal issues that required a thorough review of the evidence. The court concluded that it was inappropriate to make final findings of fact or law on the no case submission without first determining whether the defendants would call no evidence. The court noted that the issues were inextricably linked, making it inconsistent with published authority to consider individual parties or causes of action in isolation at that stage. The court proposed to refrain from making any concluded findings until the defendants elected to call no evidence.

Orders