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Popovic v Tanasijevic

Popovic v Tanasijevic

Case [2001] SASC 289 22 August 2001

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POPOVIC & ORS v TANASIJEVIC & ORS
[2001] SASC 289
Full Court: Doyle CJ, Williams and Martin JJ

DOYLE CJ I would dismiss the appeal in this matter. I agree with the reasons given by Williams J. There is nothing that I wish to add to those reasons.
WILLIAMS J This is an appeal by the defendants from a judgment of a single Judge. The action involves a dispute as to the operation of the rules of Serbian Community Welfare Association of South Australia Inc (the Welfare Association) (which is itself a defendant to the action).
On 31 March 2000 the Judge delivered reasons (Judgment [2000] SASC 87) for reaching the conclusion that two plaintiffs, Popovic and Jovicevic were members of the Association and had standing to bring this action; His Honour also made a number of findings which led him to the view that the affairs of the Welfare Association were in a chaotic state. On 28 June 2000 the Judge gave further reasons (Judgment [2000] SASC 186) for exercising jurisdiction under s 61(4) of the Associations Incorporation Act 1985 (SA) to alter the rules of the Welfare Association. The order recites the Judge’s findings of oppression in the conduct of the Welfare Association’s affairs; the order is predicated on a need to provide a proper legal basis upon which the Association can conduct its undertaking in the future. For the purpose of removing doubt the order contains a declaration as to the names of the office bearers and committee members as at the date of the order; in particular the order recognises Popovic as President and Jovicevic as Vice President of the Committee of Management.
The appeal is brought against the final orders entered on 28 June 2000 and which incorporate the matters to which I have referred. The appellants dispute that Popovic and Jovicevic are members of the Association or of its Committee. The appellants also contend that Popovic and Jovicevic are not entitled to declaratory relief.
The dispute is effectively between two South Australian Serbian groups who are vying for management control of the Association. Tanasijevic and Popovic each claim to occupy the office of Committee President.
For some years the Welfare Association has been administered without proper regard for the requirements of its Rules and without the maintenance of proper records. In terms of the Association’s rules its committee structure is supposed to mirror that of the Serbian Community of South Australia Inc (“the Community Association”) so that each Association is managed by the same people occupying corresponding offices and committee positions in each organization. However the requirements of the Association’s rules have been largely ignored. Moreover there have also been disputes as to the effect of attempted rule amendments leading to uncertainty as to the rules themselves.
The uncertainties in the rules have been resolved by the Trial Judge and there is no appeal with respect thereto. Accordingly it is possible for the present purposes to summarise the rules as now relevant.

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 v Tanasijevic [2001] SASC 289
Case: [2001] SASC 289
Decision Date: 22 August 2001

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia dismissed an appeal brought by the defendants, Tanasijevic and others, against a judgment delivered by a single judge. The case, Popovic v Tanasijevic, involved a dispute concerning the operation of the rules of the Serbian Community Welfare Association of South Australia Inc (the Welfare Association). The plaintiffs, Popovic and Jovicevic, sought to establish their standing as members of the Welfare Association and to challenge the management control held by the defendants. The Trial Judge had found that Popovic and Jovicevic were members of the Welfare Association and had standing to bring the action, and had exercised jurisdiction to alter the rules of the Welfare Association to provide a proper legal basis for its future operations. The appeal raised issues concerning the validity of the meeting held on 10 December 1995, the applicability of the principles of Cameron & Ors v Hogan, and the validity of the election of Popovic and Jovicevic. The Full Court found that the plaintiffs were entitled to bring the proceedings, and that the meeting held on 10 December 1995 was valid. The court also found that the principles of Cameron & Ors v Hogan did not apply to the Welfare Association as it was an incorporated organization whose rules were binding in law. The Full Court held that Popovic and Jovicevic were validly elected as members of the Welfare Association and dismissed the appeal.

Orders