Singh v Sikh Gurdwara Perth Inc (Iarn A1005414t) - [2016] WASC 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SINGH -v- SIKH GURDWARA PERTH INC (IARN A1005414T) [2016] WASC 309

CORAM: ALLANSON J

HEARD: 2 SEPTEMBER 2016

DELIVERED : 2 SEPTEMBER 2016

FILE NO/S: CIV 2488 of 2016

BETWEEN: AMINDER PAL SINGH
First Plaintiff
SURJIT SINGH UBHI
Second Plaintiff
RAGHU PAT RAI TAH
Third Plaintiff
AND
SIKH GURDWARA PERTH INC (IARN A1005414T)
Defendant

Catchwords:

Practice and procedure - Injunctions - Interlocutory injunctions - Balance of convenience in restraining meeting - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                  :     Ms C L Donald
Second Plaintiff             :     Ms C L Donald
Third Plaintiff                :     Ms C L Donald
Defendant:     Mr M W Fatharly & Ms A L Spencer

Solicitors:

First Plaintiff                  :     Lavan Legal
Second Plaintiff             :     Lavan Legal
Third Plaintiff                :     Lavan Legal
Defendant:     Kott Gunning

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
ALLANSON J:

(These reasons were delivered orally on 2 September 2016, and have been edited from the courts record of the hearing.)

In these reasons references to the constitution or rules are to the rules of Sikh Gurdwara, Perth (Inc); and references to the Board of Trustees are references to the Board of Trustees under those rules. On occasions, I refer to the defendant as the Association.
The defendant is a unique purpose association for believers of the Sikh religion. The plaintiffs are members or former members of the defendant (the validity of the expulsion of the second and third plaintiffs is in issue, but that will be determined later).
On 30 August 2016, the plaintiffs commenced proceedings against the defendant. The claim has not been pleaded. The relief sought by each plaintiff includes a declaration as to the validity of disciplinary action taken against him by the Management Committee or the Board of Trustees of the defendant, and a permanent injunction restraining the defendant from treating that disciplinary action as valid. The second and third plaintiffs also seek a declaration that their expulsion was invalid.
The present application was commenced by a chamber summons filed on 30 August 2016. The plaintiffs seek an injunction restraining the defendant, until judgment or further order, from holding any Extraordinary General Meeting (EGM) or Annual General Meeting (AGM). The grounds for the application were said to be set out in the affidavits filed in support.
Those affidavits provide a narrative of events, beginning in 2015, in which the plaintiffs came in conflict with other members of the defendant and its management committee. None of affidavits purports to set out a statement of grounds for the restraint of the EGM and AGM which have been called for Saturday, 3 September 2006. I mention that procedural matter because, particularly when urgent relief is sought, it is important to not simply rely, as in this case, on several hundred pages of affidavit evidence, but to give a concise statement of the grounds on which the plaintiffs wish the court to act.
Late on 1 September the plaintiffs provided a document setting out their grounds. They contend, in effect:
1.Their relationship with the defendant is contractual;
2.The defendant has contravened its rules and/or denied the plaintiffs procedural fairness by:
(a)upholding a complaint made against each plaintiff and imposing a religious punishment on him;
(b) its conduct of the first plaintiff's appeal, including the manner in which it has arranged the EGM;
(c)failing to act on the second plaintiff's appeal by failing to arrange an EGM to determine the outcome of his appeal; and
(d) asserting that the second and third plaintiffs have been expelled as members of the defendant for non-compliance with religious punishment imposed on each of them.
The first plaintiff seeks to restrain the EGM and AGM because those meetings will proceed in circumstances where he cannot be afforded procedural fairness in respect of his appeal. The second and third plaintiffs seek to restrain those meetings because, by reason of their purported expulsion, they will not be able to participate, or vote, or stand for election to a position on the defendant's Management Committee.

Principles

The general principles which apply to an application for interlocutory relief are not in dispute: they are conveniently summarised in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [13]. It is necessary to first identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217 [11], 248 [105]. The court may grant the injunction for the purpose of keeping matters in status quo until the parties' rights are determined at trial.
The plaintiffs must show a sufficient likelihood or probability of success to justify preserving the status quo until the trial of the action. How strong the probability of success must be depends upon the nature of the rights the plaintiffs assert, and the consequences likely to flow from the order. The decision whether to grant the injunction sought by the plaintiffs in this case involves balancing the injustice which the defendant (including its members) might suffer if it cannot proceed with the meeting and the plaintiffs later fails at trial, against the injustice which the plaintiffs might suffer if the meeting proceeds and they later succeed at trial.
Where there is uncertainty about whether final relief will be granted, and that uncertainty depends in whole or in part on a contested question of fact, it is generally not appropriate for the court to decide that factual question on the interlocutory application. That does not mean, however, that the plaintiffs are entitled to the injunction unless it is shown that their claims have no real prospect of succeeding on the facts they assert. That would reverse the onus on an application such as this, and obscure the real question.
In my opinion, cases relating to the restraining of a meeting which would otherwise lawfully be held are a class of case where the balance of convenience may be a very significant factor.

Evidence

The defendant was incorporated under the Associations Incorporation Act 1987 (WA) (now replaced by the Associations Incorporation Act 2015 (WA)). The rules of the defendant bind every member of the defendant to the same extent that every member of the defendant had signed, sealed and agreed to be bound by the provisions of the rules: r 25.2; in slightly different language, this reflects Associations Incorporation Act 2015 s 21.
Each of the plaintiffs has filed an affidavit in support; the second plaintiff has also filed a supplementary affidavit. The defendant has filed two affidavits in response, both sworn on 1 September 2016.

The case for the first plaintiff

The first plaintiff remains a member of the defendant. On 27 September 2015, the first plaintiff was given a notice of inquiry, attaching a complaint against him by members of the defendant's Management Committee. In substance, it alleged that he had interrupted a meeting of the Management Committee and displayed violent and disrespectful behaviour towards members of the committee. The first plaintiff was given notice to appear before the Board of Trustees on 17 October 2015.
On 9 October 2015, the first plaintiff responded, requesting conditions for the meeting including that he be accompanied by two named people, and also 'a person for audio visual recording'. He also requested that no member of the Management Committee be present on the premises of the defendant at the time of the meeting. The first plaintiff enclosed two letters of complaint of his own, and asked that they be acknowledged and investigated. The first plaintiff's complaint against another member of the defendant association is, in my opinion, a red herring and should not distract the court.
The complaint against the first plaintiff did not proceed on 17 October 2015. Further attempts were made to list it in December 2015, and January 2016.
One of the matters in contention between the first plaintiff and the Board of Trustees was his request to have legal representation. The rules of the defendant provide, in r 10.4:
during the enquiry the member shall be given full opportunity to answer the complaints of the committee, but without prior written consent of the trustees shall not be entitled to legal representation.
The Board of Trustees did not agree to the first plaintiff being represented.
On 27 April 2016, the first plaintiff was notified that the inquiry was scheduled for 14 May 2016. He did not attend and the complaint was determined in his absence. It appears that at least one reason why the first plaintiff did not attend is that his lawyer could not attend.
The Board of Trustees issued written reasons for their decision. The reasons set out the case against the first plaintiff, and a summary of the evidence of three witnesses. They conclude that his behaviour had been violent, abusive, and disrespectful, and detrimental to the interests of the defendant. Taking into account the first plaintiff's significant contribution and length of service to the defendant, the trustees imposed a religious punishment or discipline, involving service and prayer.
The first plaintiff appealed against the decision. Pursuant to r 10.8, an EGM was arranged to 'finally decide the matter at hand with a simple majority of more than 50% of the members present … who vote in person'. That meeting is due to be held tomorrow, 3 September 2016. The agenda for the meeting includes:
•the management committee's address;
•the first plaintiff's address;
•the management committee's reply;
•vote by the general body; and
•declaration of general body's decision by the chairperson.
The first plaintiff seeks to restrain this meeting. He raises several individual complaints. First, he complains about matters relating to the hearing before the Board of Trustees: that his own complaints to the committee of management about the conduct of another member were not responded to or referred to the Board of Trustees; that the committee of management initiated its own complaint against him; that the procedural requests he made were denied (legal representation and recording of proceedings); and that he understood the complaints made against him had been resolved in a private agreement with one member of the Board of Trustees, but the Board of Trustees decided to continue. Second, he complains about the process for the EGM: that it denies natural justice to him because the reasons for decision have been circulated to the membership but he has not been permitted to provide a statement of his own position in writing before the meeting. Third, a document he circulated for the purposes of the AGM was met with a 'concerns notice' pursuant to s 14 (2) of the Defamation Act 2005 (WA) from solicitors acting for another member of the Association. The first plaintiff is concerned that members who might support him will be too frightened to attend.
In the circumstances he believes that he will not be afforded a fair hearing of the appeal, and that members who would have supported him may not attend.
Even if there might be a serious question to be tried regarding the process followed by the Board of Trustees, I am not satisfied that a proper basis has been established for restraining the conduct of the EGM. Damages may not an adequate remedy for the first plaintiff, in the sense of not being appropriate to the nature of any harm that he might suffer should the meeting proceed. At worst, the decision of the Board of Trustees may be affirmed and the first plaintiff will have the choice of submitting to a religious penalty or facing possible expulsion should he not. Even if expelled, he would not be prevented from attending his place of worship, as membership is not a requirement to attend. While the defendant holds property, the restrictions on disposition of the property of an incorporated association are such that the first plaintiff suffers no injury in his property rights. Should either decision be invalid it may be set aside in due course. While the court is generally concerned with possible injuries to reputation, I do not believe that the process of submitting the matter to the vote of the EGM, when a finding has already been made against the first plaintiff, will itself significantly affect him in his reputation.
The first plaintiff seeks also to restrain the AGM on the basis that the defendant refused to send to members a document that he wished to have circulated before the meeting. It is headed 'proposed resolutions for the AGM and EGM 2016 under schedule III, rule 21'. The document contains 32 paragraphs, many of them allegations against other members of the Association. It is not a notice of proposed resolutions, and the defendant was not obliged under the rules to circulate it. Counsel for the first plaintiff argued that, in an association such as the defendant, such a document may not be required to be formal. This document is a way of getting issues before the AGM for discussion. But having looked at the content of the document, one can understand the defendant and its officers being concerned about its potentially inflammatory nature.
On the other hand, the notice of the EGM was sent in mid-August. It has been timed to coincide with the AGM which, under the rules, should have been held before the end of August. The inconvenience to all members of the defendants Association ‑ somewhere between and 300 and 400 people - from restraining those meetings outweighs any injustice that might be suffered, temporarily, by the first plaintiff should his complaints ultimately be upheld. Should the first plaintiff fail at trial (in the unfortunate event that this action should proceed to trial), any inconvenience suffered by members of the Association would not be adequately compensated by the first plaintiff's undertaking for damages.
I am not satisfied that this court should restrain either meeting on the basis contended by the first defendant. Primarily, I am not satisfied that the balance of justice is in his favour.

The second and third plaintiffs

The position of these parties is similar to each other, but different from the position of the first plaintiff. Each of them was given a notice of inquiry relating to his conduct in handing out a complaint letter apparently written by the first plaintiff.
The rules of the Association, expressly in sch V, prohibit any member from distributing or disseminating 'anonymous letters'. It was apparently on this basis that the defendant dealt with the conduct of the second and third plaintiffs. Each of them was found to have breached the rules and a religious penalty imposed.
Both plaintiffs complain that the decisions finding the complaints established were wrong, as the letter they distributed was signed and was not anonymous. The third plaintiff complains also that he was not permitted to have the first plaintiff attend with him with in support; and that he needed a support person because his English is not as good as others. Both complain that they were not heard on the penalty to be imposed. The second plaintiff also complains that he does not regard service, which should be voluntary, as something he properly can be ordered to do.
The second plaintiff did not appeal. The third plaintiff says that he wrote a letter to the Board of Trustees appealing its decision and no appeal (that is, EGM) was arranged. The letter relied on, dated 10 November 2015, is not unambiguously a notice of appeal; but, on the other hand, it is not unambiguously not a notice of appeal. That issue might be determined at trial.
Neither plaintiff performed the service and prayer that was ordered. By operation of the rules, r 10.6, each was deemed to have been expelled. The expulsion in each case took effect in May 2016.
The plaintiffs seek to restrain the AGM on the basis that their expulsions were invalid. As non-members, neither will be able to vote or stand for office.
As for the first plaintiff, however, I am not satisfied that the balance of convenience favours restraint. There is possibly, in the case of these plaintiffs, a strong argument that there was error in finding the complaint against each of them had been proved: the letter distributed may not have been anonymous. But should either expulsion be invalid, any injustice suffered by either plaintiff should the AGM proceed and they subsequently be vindicated is outweighed by the inconvenience to all members of the defendant Association that would follow from restraining the meeting. In effect, neither plaintiff would be in any different position from when he was informed of the effect of r 10.6 in May, following failure to perform the religious discipline within the time required.
Accordingly, essentially on the balance of convenience, I have determined that it would not be appropriate for this court to restrain the holding of either meeting.

Costs

I have determined that the plaintiffs may have an arguable claim but that the balance of convenience does not justify interlocutory restraint. In these circumstances, in my opinion, the costs of this application should be in the cause of the action.
Although none of the parties has pleaded, there has obviously been substantial work done already, particularly by the plaintiffs in the preparation of affidavits. The cost of pleading this matter and proceeding on that traditional procedural path, having regard to the nature of the dispute, could weigh very heavily on all parties. It was suggested by the defendant that this action might be suitable for early mediation. Given the extent to which the issues between the parties have already been ventilated in the affidavits, I urge on the parties an early mediation. This should take place before pleading or any further interlocutory steps, as there has been a sufficient statement of each party's case for that to happen.