The Venerable Hout Chhet & Ors (according to the attached Schedule) v Khmer Buddhist Temple Association Inc (ABN 63 990 104 294) & Ors (according to the attached Schedule)
[2021] VSCA 266
•22 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0091
| THE VENERABLE HOUT CHHET & ORS (according to the attached Schedule) | Applicants |
| v | |
| KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | BEACH, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 September 2021 |
| DATE OF JUDGMENT: | 22 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 266 |
| JUDGMENT APPEALED FROM: | [2021] VSC 418 (Garde J) |
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INCORPORATED ASSOCIATIONS – Incorporated association for religious purposes – Interlocutory injunctions – Position of Abbot – Whether the judge erred in finding the balance of convenience favoured granting an injunction – Whether judge failed to take into account a relevant consideration – Allegation of apprehended bias – Appeal dismissed – Association Incorporations Reform Act 2012 ss 1, 33, 34, 83, 84 and 85.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J Sutton | SDR Law |
| For the Respondents | Mr R Appudurai with Mr A Naidu | Logan Barristers & Solicitors |
BEACH JA
KAYE JA
NIALL JA:
Introduction
By orders made on 4 February 2021 a judge of the Trial Division granted interlocutory injunctions pending the determination of the proceeding against the third to fifth applicants, restraining them from holding office in the Khmer Buddhist Temple Association Inc (‘Association’). On 14 July 2021, the judge extended the orders against the third to fifth applicants and enjoined the first applicant, the Venerable Hout Chhet (‘Abbot’) from acting as the Abbot and residing at a Buddhist temple situated on premises owned by the Association.
By an application for leave to appeal, the applicants seek to overturn the injunctions made against the Abbot.[1] They do not contest that serious issues for trial arise in the proceeding, but seek leave to appeal on a number of grounds that seek to challenge the judge’s conclusion that the balance of convenience favoured the injunctions that were granted. At the conclusion of full argument, the Court refused leave to appeal and indicated that it would publish reasons in due course. These are the reasons.
[1]The judge granted a stay to allow the matter to be heard in this Court.
The Association
The Association is an incorporated association under the Association Incorporations Reform Act 2012 (‘Act’) formed by Buddhist members of the Cambodian community in Melbourne. The Association owns the premises at 99 Alexander Avenue, Thomastown (‘premises’), where it conducts prayer meetings and community functions. The temple at the premises is known as the Eysanmeanchey Temple (‘temple’).
The Association is governed by its rules (‘Rules’), which are in the form of the Model Rules for an Incorporated Association (‘Model Rules’) provided for under the Act. The Rules constitute the terms of a contract between the Association and its members.[2] The Association’s purposes are:
[2]Association Incorporations Reform Act 2012 s 46.
(a) to support Cambodian Buddhist monks living in Australia;
(b) to raise funds to build a Cambodian Buddhist monastery in Melbourne;
(c) to disseminate information on Hinayana Buddhism in Australia;
(d) to carry out mission work on Buddhism for Australians in Australia;
(e) to foster and maintain good relationships among Cambodians in Australia; and
(f) to maintain the Cambodian cultural heritage in Australia.
The judge described, in uncontentious terms, some of the statutory requirements relating to the Association. He noted one of the main purposes of the Act is to make provision for corporate governance, financial accountability, and other matters relating to the rules and membership of incorporated associations.[3] An incorporated association must not secure a pecuniary profit for any of its members and must act in accordance with its rules.[4]
[3]Ibid sub-s 1(b).
[4]Ibid s 33 and s 34.
Office holders are prohibited from making improper use of their office to gain an advantage for themselves or to cause detriment to the Association.[5] They are required to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise acting in the same capacity.[6] Office holders must exercise their powers and discharge their duties in good faith in the best interests of the Association and for a proper purpose.[7]
[5]Ibid sub-s 83(2).
[6]Ibid s 84.
[7]Ibid s 85.
The Rules provide for an elected committee, which is effectively the principal administrative organ of the Association with management responsibility. The general duties of committee members are set out in the Model Rules, and are similar to those in the Act. In brief, they include:
(g) to comply with the Act and Model Rules;
(h) to act with reasonable care and diligence;
(i) to act in the best interests of the association and for a proper purpose; and
(j) not to make improper use of their position or information acquired by virtue of holding their position to gain an advantage for themselves or any other person or to cause detriment to the association.[8]
[8]Model Rules for an Incorporated Association sub-ss 45(2)–(5).
The Abbot and office holders
The Abbot is a Buddhist monk. As recorded by the judge, and reflected in the evidence, the Abbot was appointed by the committee of the Association in 2012 as Abbot of the temple. The position of Abbot is honorary, and the Abbot resides at the premises and is supported by the charity of the Cambodian Buddhist community. From March 2020, certain complaints about the conduct of the Abbot were received by the committee. As a result, on 12 December 2020, a disciplinary subcommittee was established and, on 3 January 2021, the disciplinary subcommittee resolved to strike off the Abbot’s name from the list of members of the Association.
In circumstances that we will explain below, and which are in contention, on 22 November 2020, the applicants were elected to the committee to hold office within the Association as follows:
(k) Sothy Samreth (‘Samreth’) (President);
(l) Keat A Te (Vice President);
(m) Sonn Top Kim (Secretary); and
(n) Dararath Uch (Treasurer).
Samreth had been the president before the meeting. The previous Vice President (Visal Mom), Secretary (Serei Put), and Treasurer (Maxwell Zor) were all purportedly removed. In very broad terms, the newly elected committee supported the Abbot whereas the deposed members had been responsible for the establishment of the disciplinary committee.
The proceeding
By Originating Motion filed on 27 January 2021, the Association commenced a proceeding against the five applicants and, on the same day filed a summons seeking interlocutory relief against them. As against all of the applicants, the summons sought orders that, until further order, each applicant be enjoined from:
(o) entering or remaining on the premises;
(p) representing or conducting themselves as a member, director, office holder, or responsible person of the Association;
(q) acting on or implementing any resolution associated with or connected to the Association; and
(r) lodging documents with the Australian Charities and Not-for-Profits Commissioner (‘ACNC’) or Consumer Affairs Victoria (‘Consumer Affairs’).
In addition, orders were sought against the Abbot, that he be enjoined from representing or conducting himself as a priest or Abbot of the temple.
First injunction — 4 February 2021
The summons was heard by the judge on 3 February 2021, and on 11 February 2021, the judge made orders joining Mom, Put and Zor as the second to fourth respondents respectively. He enjoined the third to fifth applicants from acting as the committee of the Association or seeking changes in the registered details of office bearers as held by the ACNC and Consumer Affairs. No orders were made against the Abbot or Samreth and the summons was adjourned. The proceeding was sent to mediation. The effect of the injunction was to restore, on an interlocutory basis, the committee that had been in place immediately before the impugned meeting.
In granting the injunction, the judge found a number of serious questions to be tried, including:
(s) whether the general meeting of 22 November 2020, was validly convened and conducted, and whether the resolutions appointing the third to fifth applicants to offices within the Association were valid; and
(t) whether the disciplinary subcommittee was properly convened by the committee, whether the Abbot was a member of the Association, and whether the findings of the disciplinary subcommittee were valid and effective.
He noted that serious difficulties had arisen in the affairs of the Association and that the committee was in deadlock, with the Vice President, Secretary and Treasurer of the view that the Abbot should resign or be removed, while the President maintained his support for the Abbot. The President and the Abbot had sought to have a new committee elected and obtain registration changes. The judge said that an injunction was necessary to prevent irreparable damage that would be likely to occur if an injunction were not granted and to preserve the status quo by preventing the committee from being forced out of office by improper means.[9]
[9]Khmer Buddhist Temple Association Inc v Chhet [2021] VSC 45, [42]–[43] (Garde J).
It is clear from his reasons that the judge proposed to defer the question of the injunction against the Abbot to allow a mediation to occur. Although no injunction was made, it is clear that the application as against the Abbot was deferred rather than refused on the merits.
Second injunction — 14 July 2021
The matter did not resolve at mediation and the summons returned for hearing before the judge on 30 April and 16 June 2021. On 14 July 2021, the judge granted further injunctive relief, which is the subject of the present application for leave to appeal.
On 14 July the judge ordered:
(u) The Abbot be restrained from acting as Abbot of the temple and residing or remaining at the premises; and
(v) The third to fifth applicants be restrained from acting as the committee of the Association.
Insofar as the injunctions were directed to the third to fifth applicants, they continued the regime that had been put in place by the February orders. The injunction against the Abbot was new and is the subject of the present complaint in this Court.
The judge’s reasons
It emerges clearly from the judge’s reasons that the dispute between the applicants and the respondents concerns, in general terms, the governance and orderly management of the Association in three key respects: the composition of the committee of management and office holders; financial matters; and the behaviour and position of the Abbot within the operations of the temple. The judge found, and it was not seriously in contest before him, that there was a serious question to be tried about compliance with the Rules by the applicants and the lawfulness of their conduct in relation to each of the three aspects.
As to the first aspect, the judge set out the sequence of events in some detail. Pared to its essentials, it appears that three of the four of the previous committee of management were removed at a general meeting that was marked by anger, commotion, unrest and dissent requiring the attendance of police. The existing president, Samreth, remained in office following the meeting but was joined by three new members on the committee. Samreth and the three new office holders are the second to fifth applicants. The judge found a serious question to be tried about the lawfulness of the meeting and the resolutions passed at it.
After the meeting, the temple was locked, keys changed and regulatory authorities were advised of the new office holders.
As further evidence of discord, the judge described an incident that occurred during the Khmer New Year celebrations in April 2021. In 2021, the committee decided to have the Khmer New Year celebrations on Saturday 3 April 2021. The Abbot was not consulted as the organisers did not consider him to be the spiritual guide of the temple. Members of the community were notified of the celebrations by the committee and invited to come and make offerings.
On 3 April 2021, members of the community arrived at the premises dressed for the celebrations from 8:00 am. They had prepared and brought food offerings and food to share among the congregation. Prayers were to be said by monks invited from another temple in Springvale, with the program concluding by 12:00 pm.
When the celebrants arrived at the temple, they found the temple gate locked, and a notice had been erected to the effect that the temple would be closed for the Easter holidays. Persons wishing to celebrate the Khmer New Year on any days other than the actual days of the New Year were advised to visit the Springvale temple instead. A ceremony was conducted in a park near the temple.
In his first affidavit, the Abbot said that the proposal to conduct Khmer New Year celebrations on 3 April 2021 was made without reference to him and without the approval of the second applicant. He said that he feared for his safety and caused the notice to be put on the temple gate stating the dates of the Khmer New Year celebrations and asking for registration by those who wished to attend.
As to financial matters, the judge set out a raft of concerns that showed a change in control over the resources of the Association including its bank accounts. From 30 November 2020, following their appointment, the second to fifth applicants succeeded in changing the Association’s bank account authority and signatories, giving them control of the Association’s bank account with the Commonwealth Bank.
Of some importance, was evidence that another association, the Cambodian-Australian Buddhist Temple Association (ABN 25 940 163 249) (‘Cambodian-Australian Buddhist Temple Association’) had been set up. Its financial records showed that in the 2018 financial year it raised $22,102.55 in revenue, while in the 2019 financial year it raised $8,226.66 in revenue. The judge found that it appeared very likely that donations made to the temple were diverted by the Abbot to the new association.
Finally, as to the position of the Abbot, the judge noted that on 12 December 2020, the committee met in the absence of Samreth. They resolved to temporarily suspend the Abbot and established a disciplinary subcommittee to hear the allegations against him. The following day, they informed the Abbot that he was to remove himself from the premises. On 3 January 2021, the disciplinary subcommittee met and resolved to strike the Abbot’s name from the list of members of the Association. The Abbot did not attend.
In order to put the conduct of the Abbot in its context, the judge referred to the rules that govern Buddhist monks, known as the Patimokkha, which comprises 227 rules binding on monks. The first four rules are known as the four parajikas and they are prohibitions against: sexual intercourse; stealing or robbing money, gold or valuable things; killing any person; and making false claims of attainment of stages of mental concentration or enlightenment.
Allegations of breach of the parajikas are determined by a committee of monks known as a Sangha. The number of monks that assemble as a Sangha depends on the gravity of the allegations, but it is usually at least 20 monks, and given the number of monks in Australia the allegations may need to be referred to the monastic authorities in Cambodia.
The judge set out a large number of matters that the respondents contended evidenced past and threatened breaches by the Abbot of the Rules governing his behaviour as a monk. They involved allegations of financial and ethical or moral wrongdoing as against the very strict rules that applied to him. They included:
(w)having sexual relations with a woman;
(x) registering another association called Cambodian-Australian Buddhist Temple Association, which had similar objects to the Association;
(y) sponsoring Buddhist monks to come to Australia without the knowledge or authority of the committee;
(z) taking donations and money intended for the Association;
(aa) being in possession of substantial amounts of cash without the authority of the committee; and
(bb) purchasing a property in Cranbourne North after obtaining a mortgage from the Westpac Banking Corporation (‘Westpac’).
The judge set out the evidence which had been assembled for the purposes of the injunction application in respect of each allegation. It is not necessary to rehearse that evidence in any detail, the following gives a sense of the evidence.
The respondents’ affidavit evidence showed substantial donations to the temple had gone missing. Further, notwithstanding that as a monk, the Abbot had renounced material possessions, there was evidence that showed he had opened three bank accounts in his name which had substantial deposits and withdrawals.[10] In total, the Abbot’s bank accounts showed that he had received approximately $235,107.50 over the period from 2016 to 2021.
[10]Two accounts with the National Australia Bank were opened in March 2017 and closed on 24 February 2021, three weeks before the first day of hearing of the injunction application. The Abbot had a CBA account in his name from January 2016 to January 2021.
There was also striking evidence that the Abbot had purchased a residential property and obtained a mortgage in his name. In his application for the mortgage, the Abbot said he was renting at the premises, that he conducted an online sales business, had an annual income of $95,000, had $12,000 in superannuation, and personal effects to the value of $40,000. The judge observed that these statements could not be reconciled with his status as a monk who lived at the temple and did not own possessions or earn an income. He noted that three rules of the Patimokkha prohibit a monk from using money, accepting money, or exchanging things.
The judge also referred to evidence that showed the Abbot had purchased lottery tickets, airfares, adult material, and accommodation.
The judge referred to two affidavits made by the Abbot in which he denied the allegations, said that he did not believe that he had been in breach of any of the rules of the Patimokkha, and had referred the allegations to a Sangha. The judge noted that the Abbot had not dealt with the allegations in any detail. The Abbot had indicated that he was prepared to undertake to the Court that:
(cc) he would not sell the property without first giving seven days’ notice to the respondents’ solicitors prior to the holding of an auction or the signing of a binding agreement to sell the property;
(dd) he would not receive or hold any gifts, whether in money or kind, made to the temple or the Association unless they were payments or gifts made by way of Pachay Boun, which the Court was informed are gifts in money or kind to a monk for his own support; and
(ee) if a Sangha decided that the Abbot was not a fit and proper person to be a monk, he would leave the temple within seven days.
Balance of convenience
On the question of the balance of convenience, the judge identified the following factors in favour of an injunction:
(ff) the Association was suffering continuing harm to its reputation and to its relationship with the community which it serves;
(gg) there were serious allegations that the Abbot had been taking substantial amounts of cash from the Association over a number of years;
(hh) it was very likely that the Abbot had engaged in numerous activities without the committee’s approval, including using temple funds for personal expenses; purchasing a house; making payments to the Cambodian-Australian Buddhist Temple Association; purchasing lottery tickets, airline tickets and hotel accommodation; and making payments to the Department of Immigration;
(ii) it was admitted that the Abbot had purchased a home for his own use;
(jj) it was very likely that the Abbot made misrepresentations in his application for finance in order to obtain a mortgage;
(kk) the Abbot had engaged in civilian employment and obtained Newstart and JobKeeper allowances;
(ll) a substantial number of worshippers were denied access to the premises by the Abbot when they attended on 3 April 2021;
(mm) if the Abbot remained at the temple, the Court would need to exercise continuing supervision over the parties and the premises during the pendency of the proceeding;
(nn) the Association was entitled to security of tenure over its own premises; and
(oo) while denying wrongdoing, the Abbot had not responded in any detail to the allegations in the respondents’ affidavits and supporting exhibits concerning his conduct, including the numerous cash deposits paid into his bank accounts over a significant period of time.
He said that the Court was concerned to uphold the governance and functioning of the Association, and to protect its property from theft, misuse or dissipation. It was not concerned with determining whether the Abbot is a fit and proper person to be a monk — that is a decision for the Sangha or proper religious authority.
The judge set out five considerations that he considered justified interlocutory relief in order to facilitate a return to the usual and orderly conduct of worship and prayers in the temple in accordance with the Theravada Buddhist tradition.
First, he said that during the pendency of the proceeding, and until the position of the Abbot is known, the usual and orderly conduct of religious services in the temple must be conducted by monks other than the Abbot and that this could not occur if the Abbot continued to reside at the temple.
Second, there was a need to avoid disturbance and violence, in the context where the general meeting had been associated with unrest, a disturbance occurred during the Khmer New Year celebrations, and the Abbot had expressed his own concerns for his safety and had obtained an intervention order against one of the respondents.
Third, was the need to protect the donations and gifts to the temple and temple property. In that respect, the judge had earlier referred to evidence that showed a sharp decline in donations from 2016 to 2019. In the 2016 and 2017 financial years, the Association’s income through donations was $106,222 and $122,686.08 respectively. In the 2018 and 2019 financial years, the Association’s income declined to $47,523.20 and $56,828 respectively. The judge said that this was consistent with cash deposits being paid into the Abbot’s account as alleged by the respondents.
Fourth, the judge regarded the undertakings proffered by the Abbot as insufficient.
Fifth, the judge said there was an absence of loss or prejudice to the applicants. He acknowledged that by reason of the proposed injunction the Abbot would need to find alternative accommodation but he expected that the Abbot would be assisted by senior monks. The judge considered that finding accommodation for monks would be a ‘common and routine matter’ and that in any event, the Abbot’s accommodation was of lesser concern, noting that he represented in his loan application that he was buying his home for personal occupation.
The application for leave to appeal
The applicant seeks leave to propound nine grounds of appeal contending that the judge erred in the following ways:
(pp) in making interlocutory order 1 on 14 July 2021 (as amended on 11 August 2021), the judge failed to fully fairly and properly address the balance of convenience for the parties.
(qq) the order had the effect of or tended to determine the substantive rights of the parties.
(rr) the order did not preserve the status quo between the parties.
(ss) by failing to take into account a relevant consideration, namely, who the lawful members and the committee members of the first respondent then were.
(tt) by failing to take into account a relevant consideration, namely, that none of the respondents were entitled or empowered by custom and/or rules of the Association to appoint, govern or to dismiss an abbot of the temple.
(uu) by failing to take into account a relevant consideration, namely, that the first applicant had continued to provide the usual and orderly conduct of worship and prayers at the temple.
(vv) in making the findings he did in paragraph 123, the judge erred in taking them into account in his decision to make Order 1 and in doing so an appearance of bias against the first applicant arose.
(ww) by failing to take into account a relevant consideration, namely, that there was no evidence that the second to fourth respondents were lawfully elected as members of the committee of the Association or had been lawfully admitted into membership of the Association.
(xx) by failing to afford the applicants procedural fairness given the great volume of material put before the Court at the interlocutory stage and by taking into account an irrelevant consideration at the interlocutory stage, namely, that the applicants and particularly the first applicant had failed to respond to the respondents’ affidavit material in detail.
Analysis and conclusions
Before turning to the individual grounds it is convenient to identify the nature of this Court’s task in determining the application for leave to appeal. An interlocutory order for an injunction is a matter of practice and procedure. This Court must exercise particular caution in reviewing the decision of the primary judge. Before the Court will intervene, there must be error in principle, and the decision appealed from must work a substantial injustice to one of the parties.[11] The question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.[12]
[11]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ) (‘Adam P Brown’); Niemann v Electronic Industries Ltd [1978] VR 431, 442 (Murphy J); BHP Petroleum Pty Ltd v Oil Basins [1985] VR 756, 758 (Fullagar J); Australian Dairy Corporation v Murray Goulburn Cooperative Co Ltd [1990] VR 355, 364–5 (McGarvie J), 380 (Marks J).
[12]Adam P Brown (1981) 148 CLR 170, 177; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
It is also important to record that the proposed grounds of appeal are all directed to the finding by the judge that the balance of convenience favoured the injunction. That is, there is no challenge to the finding that there is a serious question to be tried. Although no pleadings have been filed and the originating motion is devoid of grounds, it appears that the injunction was fought on the basis that, in respect of each of the three elements identified above, there were serious questions to be tried about the lawfulness of the conduct of the applicants in relation to the governance of the Association, protection of the Association’s assets, and the behaviour of the Abbot. Given the state of affairs, the issue for the judge was determining what form of order best protected the position of the Association pending trial so as to avoid irreparable harm.
As the judge himself observed:
The grant of the proposed interlocutory injunctions offers the least risk of injustice pending the determination of this proceeding. Worship and services at the temple will resume on a basis acceptable to all members of the Association. The risk of disturbances and violence between rival groups will be significantly diminished or removed altogether. There will be no material loss to any of the defendants. When a new committee is elected, it will take charge of the affairs of the Association. It will have the task of appointing an abbot for the Association as it sees fit.[13]
[13]Khmer Buddhist Temple Association Inc v Chhet (No 2) [2021] VSC 418, [144] (Garde J).
It is particularly relevant in this case that the judge has conducted hearings of the matter on 3 February, 30 April and 16 June 2021. A very large volume of affidavit material had been filed. The judge specifically addressed the question of which course would offer the least risk of injustice. That assessment was highly evaluative and the judge was well placed to make it. The evidence showed a real and ongoing risk to the financial position and standing of the Association and the temple. The risk that assets would be dissipated on unauthorised expenditure and diverted to another organisation set up by the Abbot was well supported by the evidence. It was well open to the judge to conclude that it was necessary to grant an injunction for the purpose of preserving the assets of the Association.
Given the serious questions for trial that had arisen, the judge had to balance the competing positions of, on the one hand, leaving the Abbot in the temple at the risk of a continuation of the conduct that the evidence suggested had occurred, and on the other hand, removing him from the temple until the trial is resolved with the prospect that he would be returned if the applicants are ultimately successful. In our view, no error has been demonstrated in how the judge ultimately struck that balance in favour of the respondents.
Two general points emerged in the applicants’ oral submissions that can be addressed at the outset. First, they submitted that the judge had declined to make an injunction against the Abbot in February 2021 and that the only incident that occurred after that date concerned the Khmer New Year Celebration and this did not concern any misconduct in relation to the finances of the Association, and so, the submission went, there was a dearth of evidence that the Abbot posed any ongoing risk to the financial position of the Association.
The submission cannot be accepted. It is plain that the judge did not refuse to grant an injunction against the Abbot in February on the merits but allowed the matter to proceed to mediation. Further, the reasons his Honour gave on 14 July show that he had regard to all of the material, including the history of financial concerns. For example, he referred to the bank accounts in the Abbot’s name extending over a four year period. There was no reason for the judge to confine his consideration to matters that had occurred after February.
The second matter concerns the interaction between the secular and the religious. In substance, it was submitted that the judge failed to take into account or disregarded the distinction between the discipline of monks by a Sangha and the workings of the Association. For example, it was said the judge ignored the requirement that as a monk, the Abbot was required to live at a temple and that the form of relief trespassed into matters that were solely the province of the proper religious authorities in accordance with Buddhist custom and tradition.
The problem with that submission is threefold. First, the reasons make it plain that the judge was alive to the distinction and he expressly recorded that allegations as to the Abbot’s fitness to act as a monk could only be dealt with by a Sangha. Second, notwithstanding the Abbot’s position of authority, there was evidence that rose to the level of a serious question to be tried, that the Abbot had misappropriated donations, and that, in the judge’s view, his removal was necessary to guard against further unauthorised transactions. Third, the evidence showed that the Association owned the premises and operated the temple within them. In those circumstances, the issue could not be viewed as one merely touching religious observance but the protection of the assets of the Association and the orderly conduct of activities on its land.
Proposed grounds 7 and 9
Because grounds 7 and 9 allege an appearance of bias and a denial of procedural fairness, it is necessary to deal with them at the outset.[14]
[14]Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 611 [117]; [2006] HCA 55 (Kirby and Crennan JJ).
In support of grounds 7 and 9, which are concerned with the findings of the judge at paragraph 123 of his July judgment and summarised above at paragraph [38], the applicants submit that the findings give rise to an appearance of bias. They submit that the findings were adverse to them and that the judge accepted them in circumstances where they were untested, had been denied, and that many did not go to the issue of the balance of convenience or the preservation of the status quo.
They submit that the judge’s observation that the Abbot had not responded in any detail to the allegations in the respondents’ affidavits and supporting exhibits concerning his conduct, including the numerous cash deposits paid into his bank accounts over a significant period of time, entailed a denial of procedural fairness. That was said to arise because of the great volume of material relied on and, presumably, because it was unreasonable to expect the applicants to be in a position to respond.
The principles that apply to an allegation of apprehended bias are well established. In Ebner v Official Trustee in Bankruptcy,[15] Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ...
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[16]
[15](2000) 205 CLR 337; [2000] HCA 63.
[16]Ibid 344–5 [6]–[8] (citations omitted).
The premise for the argument is that the judge has made definitive and adverse findings against the Abbot in circumstances where the evidence against him was untested and the matter before the judge was interlocutory.
The argument must be rejected. The judge referred to the test that must be applied in considering an application for an injunction by reference to this Court’s decision in Bradto Pty Ltd v Victoria.[17] Those principles, consistently with high authority, required the judge to assess whether or not the applicant for the injunction had identified a serious issue to be tried.[18]
[17](2006) 15 VR 65, 67 [4]; [2006] VSCA 89 (Maxwell P and Charles JA). He also referred to Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68–9 [19]; [2006] HCA 46 (Gleeson CJ and Crennan J); Samsung Electronics Co Ltd v Apple Inc (2011) FCR 238, 256 [53]–[55]; [2011] FCAFC 156 (Dowsett, Foster and Yates JJ); Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd [2019] VSCA 318, [106]–[107] (Beach, McLeish and Hargrave JJA).
[18]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63.
In Castlemaine Tooheys Ltd v South Australia,[19] Mason ACJ summarised the principles governing the grant or refusal of interlocutory injunctions in this way:
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.[20]
[19](1986) 161 CLR 148; [1986] HCA 58 (‘Castlemaine’). See also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 24 [21]; [1998] HCA 30; Fejo v Northern Territory (1998) 195 CLR 96, 121–2 [26]–[27]; [1998] HCA 58.
[20]Castlemaine (1986) 161 CLR 148, 153; [1986] HCA 58.
There is no doubt that the judge was alive to the nature of the jurisdiction and powers he was being asked to exercise, and that any assessment of the evidence and findings that he made were necessarily provisional. The judge did not need to qualify every finding, paragraph or observation with the express caveat that the finding was made on the basis of the evidence as it stood and on the assumption that it remained the same.
The judge took into account the evidence filed by the Abbot. It was well open to him to take into account the fact that some of the denials made by him were general in nature and did not descend to the detail that was found in the many affidavits filed on behalf of the respondents. Moreover, it is not to be forgotten that the applicants did not contend against a conclusion that there was a serious issue to be tried. That is to say, there was if not an acceptance, an acknowledgment that the respondents had shown a prima facie case of conduct that, if not abated, would prejudice the property, finances, standing and good order of the Association.
The judge did not proceed on the basis that the allegations that had been made could never be answered. Nor was it possible to discern a conclusion that they will inevitably find favour at trial.
Proposed grounds 1 to 3
The applicants combined their submissions in support of proposed grounds 1 to 3. They submit that to restrain the first applicant from acting as Abbot of the temple and to force him from the temple, contrary to the dictates of his religious tradition and the expectations of his religious community, is in effect to do him a permanent damage and to act in a way which appears to have a tendency to determine the substantive rights in the matter.[21]
[21]Re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318, 323.
We accept that the orders that were made by the judge prohibiting the Abbot from acting as the Abbot at the temple and residing there are significant. They have the potential to injure the Abbot in relation to his standing in his community. However, all in the community should know that the Court has not made any final determination and the findings are, to that extent, provisional.
We are not persuaded that the orders have the effect of giving the respondents final relief. The orders are limited as to time, and subject to further order. In the event the respondents fail at trial, the injunctions will lapse. In the event the respondents fail, the passage of time between the grant of the injunction and the removal, would not prevent the applicants, including the Abbot, being returned to their positions.
It is not uncommon that the granting of an injunction causes some loss to the person enjoined. It is for that reason that, almost invariably, a party seeking the benefit of an injunction must give an undertaking as to damages. Such an undertaking was given in this case.
We do not accept that the injunctions will irretrievably alter the position of the Abbot.
Proposed grounds 4 and 8
Under cover of grounds 4 and 8, the applicants submit that there was no evidence before the judge to establish that the respondents were members of, or held office in, the Association. They submit there was no evidence as to who the members of the Association were at the time of hearing and whether any of the natural person respondents have ever been properly and lawfully elected as committee members of the Association.
The effect of the orders was to reinstate the office holders who claimed to hold office up until the time of the disputed general meeting on 22 November 2020. It was open to the judge to conclude that the respondents had established a prima facie case that they held office and that the election to replace them had not occurred at a validly constituted meeting. Indeed, there is no challenge to the finding of a serious question to be tried.
Proposed ground 5
The applicants submit, under ground 5, that the judge failed to take into account as a relevant consideration that none of the respondents were entitled or empowered by custom or the Rules of the Association to appoint, govern, or to dismiss an Abbot at the temple. They submit that there was uncontradicted evidence before the judge that the Rules of the Association made no provision for the appointment, government and/or dismissal of any monk or Abbot to the temple. Moreover, they say, there was uncontradicted evidence that the laity had no role to play in the traditions of Theravada Buddhists in the conduct of monks in the life of their temple or monastery.
This ground must be rejected. The judge was clearly alive to the role of the Sangha and that allegations made as to the Abbot’s fitness to act as a monk could only be dealt with by a Sangha, which is the appropriate means according to the Theravada Buddhist faith. The issue for the judge was not that the Abbot should be removed on religious grounds but because, on the evidence, he was satisfied to the requisite level and on an interlocutory basis, that by reason of the conduct of the applicants there was an ongoing risk to the property and assets of the Association and that its activities would be interrupted if the applicants remained in place. In the case of the lay applicants, the orders prevented them from holding office and in the case of the Abbot, prevented his continued presence at the temple. Further, on the evidence, the Association was the owner of the premises and had the authority to determine who could enter and remain on the premises. That authority was independent of any decision of the Sangha.
In our view, it was open to the judge to take the course that he did. The orders reduced the opportunity for further dissipation of assets pending trial.
Proposed ground 6
Under this ground, the applicants submit that the status quo in relation to the usual and orderly conduct of worship and prayers at the temple had: been in place for some seven or more years; been provided under the guidance of the first applicant as Abbot; and that the Abbot had continued to provide that usual and orderly conduct of worship and prayers. The incident at Easter 2021, with a group of people seeking to effectively occupy the temple, was neither usual nor orderly and was completely at odds with the previously arranged timetable of worship.
Given that the validity of the 22 November meeting is in issue in the proceeding, it was open to the judge to regard the status quo as the position obtained immediately before the purported change in office holding.
Conclusion
It is for these reasons that the application for leave to appeal was refused.
Before leaving this matter, we note that the proceeding was commenced by Originating Motion in January 2021 and the filing of a statement of claim was foreshadowed. Notwithstanding that more than nine months have passed and the respondents have had the benefit of two interlocutory injunctions, they are yet to propound a statement of claim. As raised by the Court in argument, this is unacceptable and must be attended to as a matter of urgency. Given the subject matter of the proceeding and the continued discord, it is important that the proceeding be brought to completion as expeditiously as possible. It is important that the issues and the relief that is sought by the respondents be clearly articulated in the pleadings so that the trial can proceed promptly on the real issues in dispute. The parties should complete the interlocutory steps without further delay so that the trial can be undertaken as soon as reasonably practicable.
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SCHEDULE OF PARTIES
| HOUT CHHET | First applicant |
| SOTHY SAMRETH | Second applicant |
| KEAT A TE | Third applicant |
| SONN TOP KIM | Fourth applicant |
| DARARATH UCH | Fifth applicant |
| and | |
| KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) | First respondent |
| VISAL MOM | Second respondent |
| SEREI PUT | Third respondent |
| MAXWELL ZOR | Fourth respondent |
2
10
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