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Radmanovich v Nedeljkovic

Radmanovich v Nedeljkovic

Case [2003] NSWSC 350 30 April 2003

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Civil Litigation & Procedure

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CITATION: Radmanovich v Nedeljkovic [2003] NSWSC 350

HEARING DATE(S): 09/04/03

JUDGMENT DATE:
30 April 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Appeal declared competent. Time for filing notice of appeal extended. Appeal dismissed.

CATCHWORDS: CHURCHES AND RELIGIOUS ASSOCIATIONS - expulsion, suspension and disqualification of members - construction of rules of local church-school community - rule stating that members of community are "only" certain "members" of church - rule stating that certain persons "ineligible for membership" of community - status under rules of existing members later sentenced by church court to excommunication for a period - effect on church membership of church by-laws defining nature and consequences of excommunication - APPEAL - decision of master after referral by judge - whether appeal to Court of Appeal or to single judge - whether subject of referral to master was "trial or hearing of proceedings" or "matter" - APPEAL - extension of time for appeal - appeal instituted within time but by wrong process and to wrong court - correct process filed out of time - whether time should be extended

LEGISLATION CITED: Supreme Court Act, s.101
Supreme Court Rules, Pt 60 rules 10, 11, 17, Sch D Pt 3

CASES CITED: Re Anglo-Moravian Hungarian Junction Railway Co (Forbes' case) (1873) LR 8 Ch App 769
Blake v Norris (1990) 20 NSWLR 300
Braeside v Brignell [1996] 1 VR 17
Cameron v Hogan (1934) 51 CLR 358
Re Conciliation and Arbitration Act 1904; Ex parte Sims (unreported, FCA, J B Sweeney J, 16 October 1980)
Crumblin v Kerr (1987) 72 ALR 461
Dawson v African Consolidated Land and Trading Co [1898] 1 Ch 6
Demaree v Scates 32 P 1123 (1893)
Do Carmo v Ford Excavations Pty Ltd [1980] 1 NSWLR 409
Faramus v Film Artistes' Association [1963] 2 QB 527
Faramus v Film Artistes' Association [1964] AC 950
Government Insurance Office of New South Wales v Weeks [1981] 1 NSWLR 713
Hills v Higgins (1982) 61 FLR 131
Jackamarra v Krakover (1998) 195 CLR 516
McCoy v Board of Supervisors of Los Angeles County 114 P 2d 569 (1941)
Navarro v Spanish-Australian Club of Canberra (1987) 87 FLR 390
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
Pasdale Pty Ltd v Concrete Constructions Pty Ltd (1995) 59 FCR 446
People v Leonard 14 P 853 (1887)
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641
Radmanovich v Nedeljkovic [2002] NSWSC 212
Radmanovich v Nedeljkovic [2002] NSWSC 763
Reynolds v Panten (1999) 23 WAR 215
State ex rel Olson v Langer 256 NW 377 (1934)
Stollznow v Calvert [1980] 2 NSWLR 749
Warren v Coombes (1979) 142 CLR 531
Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421
Williams v Hursey (1959) 103 CLR 30
Woodford v Smith [1970] 1 WLR 806

PARTIES :
Maksim Radmanovich - First Appellant
Stevan Dobrich - Second Appellant
Drago Mijakovac - Third Appellant
Kosta Nedeljkovic - First Respondent
Nicola Lukic - Second Respondent
Duro Radan - Third Respondent

FILE NUMBER(S): SC 1354/99

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.

Continue reading Radmanovich v Nedeljkovic

Details

AGLC: Radmanovich v Nedeljkovic [2003] NSWSC 350
Case: [2003] NSWSC 350
Decision Date: 30 April 2003

CaseChat Overview and Summary

The matter of Radmanovich v Nedeljkovic involved a dispute concerning the expulsion and suspension of members from the local church-school community. The respondent, Nedeljkovic, was expelled from the community by the petitioner, Radmanovich, who was the President of the Church-school Community. The dispute was heard in the Supreme Court of South Australia, with an appeal being brought to the Court of Appeal. The legal issues at hand centred around the interpretation of the rules governing the church-school community, specifically concerning the status of members who had been excommunicated by a church court. The court was required to determine whether the appeal should be heard by a single judge or the full Court of Appeal, as well as whether the subject of the referral to the master was a "trial or hearing of proceedings" or a "matter."

The Court of Appeal held that the subject of the referral to the master was a "matter" rather than a "trial or hearing of proceedings." As a result, the appeal should have been brought to the full Court of Appeal rather than a single judge. The court further found that the appeal should be allowed, but that the extension of time for the appeal was not valid as the correct process was not followed. The appeal was instituted within the time limit, but by the wrong process and to the wrong court. The correct process was filed out of time, and the court held that time should not be extended in these circumstances.

In conclusion, the Court of Appeal allowed the appeal but held that the extension of time for the appeal was not valid. The court found that the subject of the referral to the master was a "matter" rather than a "trial or hearing of proceedings," and as a result, the appeal should have been brought to the full Court of Appeal rather than a single judge. The court held that the correct process was not followed, and therefore, the extension of time for the appeal was not valid.

Orders