The West Australian Rock 'N' Roll Association (Inc) v Robinson
[2002] WASC 266
THE WEST AUSTRALIAN ROCK 'N' ROLL ASSOCIATION (INC) & ANOR -v- ROBINSON & ORS [2002] WASC 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 266 | |
| Case No: | CIV:1689/2001 | 22 OCTOBER 2002 | |
| Coram: | MASTER SANDERSON | 14/11/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Second plaintiff's claim struck out | ||
| B | |||
| PDF Version |
| Parties: | THE WEST AUSTRALIAN ROCK 'N' ROLL ASSOCIATION (INC) STEPHEN PAUL DEVIR MALCOLM ROBINSON CHRISTOPHER DUNNINGS NORMAN BUCKTIN ROSLYND WYCH RHONDA ROBINSON NORM MORRISON KERYN MORRISON ELEANOR BIGGS JULIE BROAD |
Catchwords: | Practice and procedure Application by the defendants to strike out claim Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
STEPHEN PAUL DEVIR
Second Plaintiff
AND
MALCOLM ROBINSON
First Defendant
CHRISTOPHER DUNNINGS
Second Defendant
NORMAN BUCKTIN
Third Defendant
ROSLYND WYCH
Fourth Defendant
RHONDA ROBINSON
Fifth Defendant
NORM MORRISON
Sixth Defendant
(Page 2)
KERYN MORRISON
Seventh Defendant
ELEANOR BIGGS
Eighth Defendant
JULIE BROAD
Ninth Defendant
Catchwords:
Practice and procedure - Application by the defendants to strike out claim - Turns on own facts
Legislation:
Nil
Result:
Second plaintiff's claim struck out
Category: B
(Page 3)
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : In person
First Defendant : Mr M A Atkinson
Second Defendant : Mr M A Atkinson
Third Defendant : Mr M A Atkinson
Fourth Defendant : Mr M A Atkinson
Fifth Defendant : Mr M A Atkinson
Sixth Defendant : Mr M A Atkinson
Seventh Defendant : Mr M A Atkinson
Eighth Defendant : Mr M A Atkinson
Ninth Defendant : Mr M A Atkinson
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : In person
First Defendant : Healy Pynt
Second Defendant : Healy Pynt
Third Defendant : Healy Pynt
Fourth Defendant : Healy Pynt
Fifth Defendant : Healy Pynt
Sixth Defendant : Healy Pynt
Seventh Defendant : Healy Pynt
Eighth Defendant : Healy Pynt
Ninth Defendant : Healy Pynt
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 MASTER SANDERSON: This is the defendant's application for orders striking out the plaintiffs' action. The matter came on for hearing on 10 September and I made the following orders:
(1) The action commenced by the first plaintiff be struck out, as it contravenes O 4 r 3(2) of the Rules of the Supreme Court 1971 (WA).
(2) The action by the second plaintiff be stayed in the inherent jurisdiction of the Court until the second plaintiff pays the costs of the defendants' application to set aside default judgment taxed on 6 June 2002.
(3) The matter be otherwise adjourned to 16 October at 9.15.
(4) Costs be reserved.
2 There was no question but that the second plaintiff had purported to commence this action on behalf of the first plaintiff. The first plaintiff was not represented at the hearing and had never been represented by a solicitor. This is not a case where it could ever be proper and appropriate for the second plaintiff to represent the first plaintiff. The argument the second plaintiff seeks to run against the defendants is to the effect that he and others are the proper office holders of the first plaintiff and not the defendants. To state the nature of the dispute is to dispose of any suggestion that the second plaintiff could properly initiate proceedings on behalf of, or thereafter represent, the first plaintiff. Hence par 1 of the orders made on 10 September.
3 On 5 December 2001 Master Bredmeyer had set aside an order for a default judgment made 18 September 2001. The costs order made by the learned Master was in the following terms:
"The Second Plaintiff pay the Defendants costs of the application, including all reserved costs, to be taxed on a party/party basis but without any limits as set out by the scale, and paid forthwith."
4 As at the date of hearing of the defendants' chamber summons on 10 September 2002, the second plaintiff had not made payment of these costs. The second plaintiff said, in the course of his submissions, that he was not in a position to do so. I indicated that rather than strike out his (the second plaintiff's) action, I was prepared to adjourn the matter for a period to allow the second plaintiff to consider his position. In particular, the costs had to be paid or the action could not proceed. For that purpose the matter was adjourned to 16 October 2002.
(Page 5)
5 At that resumed hearing, counsel for the defendants advised that the costs order still had not been paid. That was confirmed by the second plaintiff. Further, the second plaintiff indicated that he was not in a position to make payment of the costs and there was no likelihood of his circumstances changing in the future. He maintained, however, even in light of this failure to make payment of the costs order, he should be allowed to proceed with his action. Counsel for the defendants moved for judgment.
6 The argument put by the second plaintiff can be summarised in this way. He says that in the early days after the formation of the first plaintiff, he lent it funds to enable it to carry out its activities. Those funds have not been repaid. They have not been repaid because the defendants who purport to have control of the first plaintiff have refused to acknowledge that the first plaintiff is indebted to the second plaintiff. It is further alleged by the second plaintiff that as a consequence of various meetings of members, the defendants are not in fact properly to be regarded as office holders of the first plaintiff. In all respects then, the defendants are improperly preventing the first plaintiff from repaying the second plaintiff which in turn means the second plaintiff is unable to make payment of the costs ordered against him. The defendants of course dispute the claims put by the second plaintiff.
7 It is not possible for me to resolve the question of whether or not the second plaintiff's arguments about who controls the first plaintiff are correct. It is the fact that the second plaintiff has been ordered to make payment of the defendants' costs. He has not done so. He has indicated he does not intend to do so in the future. In the circumstances then, it is not appropriate that this action should be allowed to continue. It is for this reason that on 22 October 2002 I indicated to the parties that I would dismiss the second plaintiff's claim against the defendants. I also indicated that I would order the second plaintiff to pay the defendants' costs of the application, including all reserved costs to be taxed on a party/party basis but without any limits as set by the scale. The second plaintiff should also pay the costs of the action.
8 Although it is not strictly necessary for me to do so, I should make some comment about the nature of the second plaintiff's action. On a number of occasions the second plaintiff indicated that what he was seeking to do was resolve as between himself and the defendants who was properly in control of the first plaintiff. The way to resolve that issue is surely to call a meeting of members under the terms of the constitution of the first plaintiff. A copy of that constitution appears as
(Page 6)
- annexure "CLD2" to the affidavit of the second defendant, sworn 14 November 2001. Clause 8.4 of the constitution sets out the circumstances in which a special general meeting is to be called. Although the constitution does not deal specifically with moves by members against the committee at a special general meeting, there would appear to be no reason why the members could not vote the committee out of office. Such a move would not, in all likelihood, be contrary to cl 7.3 of the constitution.
9 If the second plaintiff is not to take that course of action he has at least two other options available to him. First, he could simply sue the first plaintiff for any amount he says is due to him. That would involve a local court action and would, at least in the legal sense, be relatively straightforward. The second alternative would be for the second plaintiff to sue the present first plaintiff and the present defendants seeking a declaration as to who is the proper committee. Standing in the way of an action of that sort are the unpaid costs orders. Unless and until the second plaintiff can deal with that issue, he is not in a position to advance his case in this Court.
10 The orders I make then are as follows:
(1) The second plaintiff's action be struck out.
(2) The second plaintiff pay the defendants' costs of the application including all reserved costs to be taxed on a party/party basis but without any limits as said by the scale.
(3) The second plaintiff pay the defendants' costs of the action.
0
0