Solowij & Ors v Parish of St Michael and Ors No. Scciv-00-649

The case involves an application by Solowij and others to join the Ukrainian Autocephalic Orthodox Church in Australia and New Zealand (the Church) as a plaintiff and to amend their statement of claim. The application was initially heard on April 9, 2001, and subsequently resumed on May 18, 2001, after the plaintiffs withdrew their request to join the Church as a plaintiff. The defendants sought indemnity costs for the application to join the Church as a plaintiff, as well as for the overall proceedings. The two primary legal issues were whether the proposed amendments to the statement of claim should be allowed and whether indemnity costs should be awarded.

Regarding the joinder of the Church as a plaintiff, the court found that it was unlikely that the plaintiffs could successfully argue for the Church to be joined, as it did not have standing to bring an oppression action under Section 61 of the Associations Incorporation Act. Furthermore, the proposed pleading did not sufficiently raise any other cause of action that the Church could maintain. Consequently, the court awarded indemnity costs for the application to join the Church up until April 9, 2001, and ordered the costs of the May 18, 2001, hearing to be taxed or agreed upon on a party and party basis.

As for the amendment application, the court found that the proposed pleading was otherwise good, as it raised issues that should be determined at trial or, if capable of summary determination, on the hearing of an application for summary relief. The court ruled that the defendants' reliance on the referenced documentation went beyond what would normally be permitted on an amendment application. Additionally, the court found that the plaintiffs pursued the amendment application in good faith and that the prejudice of delay to the defendants did not support the contention that the amendments should not be allowed. The court also determined that the proposed pleading raised justiciable matters, subject to the concession made by the plaintiffs in their written submissions.

In summary, the court allowed the plaintiffs to file and serve the proposed amended statement of claim, subject to the qualifications mentioned above. The court will hear the parties regarding costs.