Viskovic v Vuleta
[2005] WASC 92
•19 APRIL 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: VISKOVIC -v- VULETA & ORS [2005] WASC 92
CORAM: EM HEENAN J
HEARD: 19 APRIL 2005
DELIVERED : 19 APRIL 2005
FILE NO/S: CIV 1427 of 2005
BETWEEN: DAVOR LUKA VISKOVIC
Plaintiff
AND
HAZEL VULETA
ROSLYN SLAVICH
DANIEL SLAVICH
RATKO CVITAN
ILONKA DAMJANOVICH
ILIJA ERCEG
IVAN KATICH
ANTE RADALJ
BRANKO VULETA
NIKICA YAKSICH
Defendants
Catchwords:
Equity - Interlocutory injunction sought to restrain disciplinary meeting of incorporated association
Legislation:
Nil
Result:
Application for interlocutory injunction dismissed with costs
Category: B
Representation:
Counsel:
Plaintiff: Mr J Eastoe
Defendants: Mr K G Robson
Solicitors:
Plaintiff: Jonathan Eastoe
Defendants: Mossensons
Case(s) referred to in judgment(s):
Australian Football League & Ors v Carlton Football Club [1998] 2 VR 546
Harris v Liberal Party of Australia, WA Division Inc [2003] WASC 243
Rush v WA Amateur Football League Inc [2003] WASC 70
Case(s) also cited:
Cameron v Hogan (1934) 51 CLR 358
Clark v Rowell Consulting Services & Anor [2003] WASC 178
Corporate Affairs Commission v Drysdale [1978] HCA 52; (1978) 141 CLR 236
De Falco v Crawley Borough Council [1980] QB 450
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
International General Electric Company of New York Ltd & Anor v Commissioners of Customs and Excise [1962] 1 Ch 784
Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
Johnson v Miller (1987) 59 CLR 467
R v Blizzard [1993] 1 Qd R 151
R v Thames Magistrates Court; Ex parte Polemis (1974) 2 All ER 1219
Re Wood (1988) 167 CLR 145
Scott v Handley [1999] FCA 404
Underhill v Ministry of Food [1950] 1 All ER 591
Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86
EM HEENAN J: I am sitting this afternoon to deal with an urgent application for an interlocutory injunction sought by Mr Davor Luka Viskovic against 10 persons who are some, but not all, of the members of the management committee of the Stirling Adriatic Centre Inc.
The relief sought by the chamber summons is an interlocutory injunction restraining the defendants until judgment in the action, or until further order, from exercising any right or power to suspend or expel the plaintiff from the incorporated association known as Stirling Adriatic Centre Inc pursuant to the defendants' resolution of 8 March 2005 or pursuant to any resolution passed at the defendants' meeting on 19 April 2005 or any adjournment thereof. The reference to a meeting of 19 April 2005 is a reference to a meeting which has been scheduled to be held by the management committee this evening.
This application for an interlocutory injunction is brought in proceedings commenced by a writ of summons issued by the plaintiff on 14 April 2005. In the writ the indorsement of claim asserts that the plaintiff is, and at all material times has been, a member of Stirling Adriatic Centre Inc ("the Club") and that the defendants are the management committee of the Club, and then the plaintiff claims:
"(a)a declaration that a resolution of the Defendants on 8 March 2005 that the Plaintiff had breached Rule 11(b) of the Club's Constitution:-
(i)is invalid by reason of the Defendants' failure to follow the procedure specified in Rule 12 of the Club's Constitution and
(ii)involved a denial of the Plaintiff's rights to procedural fairness and should be set aside.
(b)an order setting aside the Defendants' resolution of 8 March 2005;
(c)a declaration that the Defendants (or such of them who supported or voted in favour of the resolution of 8 March 2005) should disqualify themselves from hearing any further charge against the Plaintiff concerning the subject of that resolution and an order disqualifying those persons accordingly;
(d)an injunction permanently restraining the Defendants from suspending or expelling the Plaintiff from membership of the Club pursuant to the resolution of 8 March 2005;
(e)an injunction restraining the Defendants from suspending or expelling the Plaintiff from membership of the Club at a meeting on 19 April 2005 or any adjournment thereof;
(f)such further or other orders as the Honourable Court shall think fit;
(g)costs."
In support of the application for the injunction, the plaintiff relies upon four affidavits: first, an affidavit of Mr Viskovic, the plaintiff, sworn 14 April 2005; second, a supplementary affidavit of the plaintiff sworn 18 April 2005: The plaintiff himself has read into evidence affidavits filed on behalf of the defendants: first, an affidavit from the club president, Ms Hazel Vuleta, sworn 18 April 2005 and, second, an affidavit of the club secretary, Mr Richard Radica, also sworn 18 April 2005.
Before coming to the content of those affidavits, I should say something briefly about the Club. It is a duly incorporated association, previously known under the name Yugoslav Centre Inc but recently having had its name changed to Stirling Adriatic Centre Inc. Its rules are to be found in Exhibit DLV4 to the affidavit of the plaintiff sworn 13 April. Among the objects of the club are the following:
(a)to foster goodwill and social intercourse within the southern Slavonic community of Western Australia and the citizens of Western Australia;
(b)to establish, maintain and conduct a club of a social, cultural, educational, sporting, non‑political and non-sectarian character for the purpose of providing accommodation for the members of the club and their guests upon the club's premises or other premises hired for the purpose from time to time;
(c)for the purpose aforesaid to take on, lease, purchase or otherwise acquire various land and other property, to buy and sell land and other property, to arrange and foster within the club amusements of all kinds, to establish musical bands or orchestras, to form dramatic and choral bodies or organisations to conduct and enter the club and sporting competitions of all kinds, to establish a library and to encourage the study of literature in all fields, and in all other ways to encourage friendly and cordial relationships between all members of the southern Slavonic community of Western Australia and for this purpose to do all things permitted by the laws relating to registered clubs."
The objects go on to deal with other associated and incidental matters and make provision for the income and property of the club, however derived, to be kept separate and not to be held for or divided between members.
Counsel for the plaintiff accepts, and it is quite evident from the rules as well as from the legislation, that neither the plaintiff nor any other member of the club has any proprietary interest in the club's funds or property. It is also acknowledged that the club is not a vocational or professional body, membership of which is essential to, or in any way influential in, obtaining or retaining the professional or occupational opportunities or rights of the plaintiff or other members to earn their living or otherwise. It is essentially a social club.
The events which gave rise to the present controversy took place at the half‑yearly general meeting of the club held on 20 February 2005. According to the affidavit of Mr Radica, which was not in any way challenged, that meeting was attended by approximately 379 members and at this meeting, as is the practice at all half‑yearly general meetings, there is a period when members can speak to the meeting concerning general business. They do so by speaking into a microphone which projects their voices over the public address system.
At the meeting on 20 February, the plaintiff, a former president and long‑time member of the club, spoke during this stage of the meeting. He made a speech which, it is alleged, concerned the conduct and behaviour of another member, Mrs Mary Slavich. This and all other proceedings at the meeting were recorded on electronic or magnetic tape and a permanent tape‑recorded record was kept and remains in the possession of the club.
The allegation against Mr Viskovic is that in the speech which I have just described, he maliciously launched a verbal attack on an esteemed and valued member of the club, Mrs Slavich, who is the State President and Chairman of the State Match Committee, Australian Selection Committee and currently a life member of the Ladies Bowling Association.
The secretary, on behalf of the Club, has alleged that the sole aim of the speech in front of the assembled members of the Club was to besmirch and demean Mrs Slavich's achievement, character and reputation. In a letter addressed to the plaintiff by the secretary dated 28 March 2005, it is said that "this abusive speech is deemed by the committee to be another example of your recent unacceptable behaviour whilst on the Club premises which is clearly calculated to cause ill feeling and friction amongst members".
This letter, written by the secretary at the direction of the Management Committee to the plaintiff, concludes, and I quote:
"Accordingly, the management committee has resolved that this type of behaviour, which also has the effect of impairing the enjoyment of the club premises by its members, will not be tolerated. In order to defend this charge, you are hereby requested to attend the management committee meeting on Monday, 4 April 2005 at 7.30 pm."
Earlier in the letter there was a paragraph which said:
"At its meeting on 8 March 2005 the management committee resolved that you breached rule 11(b) of the club's constitution which deals with suspension or expulsion of members by the committee."
I will now go directly to the rules of the club. Rules 11 and 12 deal with suspension or expulsion of members. Rule 11 reads:
"The Management Committee shall have full power to suspend or expel any member of the Club, including any Member of the Management Committee:
(a)who fails in the observance of any rule or by‑law of the club or any order or direction of the management committee or any special or ordinary meeting; or
(b)who has in the sole and absolute judgment and discretion by resolution of the management committee been guilty either in or out of the club premises of any act, practice, conduct, matter or thing calculated to bring discredit on or in any way prejudicially affect the reputation of the club or calculated in any manner to impair or affect the enjoyment of the club premises by the members thereof or to cause any ill feeling or friction between or among the members, without prejudice, however, to his or her liability for any money then or theretofore due by him or her to the club."
Exactly how any such allegation is to be dealt with is the subject of rule 12 which reads:
"The following shall be the mode of procedure for the suspension or expulsion of members:
(a)a charge must in the first place be made in writing, either by a Member of the Club or by resolution of the Management Committee stating the nature of the offence of which the member is accused.
(b)the Management Committee shall then cause advice in writing of at least seven (7) days' clear notice to be sent to the Member complained against to attend before the Management Committee to answer the said charge and also to the Member laying the charge, if any other than the Management Committee, and the Secretary must on application by either party send a notice to any other Member to appear and give evidence, provided that such application must be made three clear days before the date of the hearing of such charge. Should either of the parties fail to attend, the Management Committee shall take evidence and decide the case the same as if all parties had been present. Such decision shall, subject to the right of appeal hereinafter set out, be final. Registered mail shall be sent by the Secretary to all Members involved in the hearing of the charges and Post Office evidence that such mail was used will be sufficient proof that the Members involved have received the correspondence.
(c)if after the hearing of the evidence the Management Committee shall be of the opinion that the charge is sustained, they shall inflict such penalty as they may think fit, either by fine, suspension from the privileges of Membership for a certain time or by expulsion and shall thereupon cause notice of such penalty to be sent to the Member charged. In the case of expulsion, the name of such Member shall be erased from the list of Members."
There is a further subpar (d) which I need not set out. Quite evidently the letter which I have already quoted, written by the club secretary on 28 March 2005 to Mr Viskovic, was intended to be notice of the offence of which the member is accused in purported compliance with the objections under rule 12(a).
Mr Viskovic, however, through his solicitor disputes this and says that that letter does not comply with the requirements of the rules and is deficient in a number of respects. The details of the alleged defects are to be found in a letter from the plaintiff's solicitors to the management committee dated 31 March 2005 which is Exhibit DLV2 to the plaintiff's first affidavit. This letter reads:
"My client has asked me to respond to your letter of 28 March calling upon him to attend the management committee meeting on Monday, 4 April 2005 at 7.30 pm.
Your letter states that the management committee at a meeting on 8 March has resolved that my client has breached Rule 11(b). In other words, the decision has already been made.
In passing that resolution, the management committee has failed to follow the procedure laid out in Rule 12. That procedure requires that the member be called upon to answer the charge before the committee makes a decision.
In the present case the management committee has made its decision without having laid a charge and calls upon my client to prove his innocence.
In any event, your letter of 28 March fails to give my client seven clear days' notice as required by Rule 12(b). It was sent by registered mail and received by my client today.
My instructions are to require a written undertaking that the management committee will not act to suspend or expel my client as a member of the club on the basis of the matters referred to in your letter without a charge first being laid.
If a charge is to be laid, then it should be in writing and should contain full particulars (as distinct from the generalised assertions set out in the 2nd, 3rd and 4th paragraphs of your letter) of the charge including the words which my client is alleged to have uttered.
If a charge is to be laid, then in my view, the existing members of the management committee (or at least those who voted in favour of the resolution on 8 March) should disqualify themselves from hearing the charge on the grounds of a reasonable perception of bias arising out of the fact that those Members have already made a determination of guilt without having given my client the opportunity to be heard.
Please provide the written undertaking as a matter of urgency, failing which my client will seek an injunction to restrain the Management Committee from suspending or expelling him.
Given that the last attempt to expel my client and his wife proved to be an expensive and unsuccessful exercise for the Management Committee, I would hope that some common sense might prevail on this occasion."
That prompted a reply from the secretary of the Club dated 6 April 2005 (Exhibit DLV‑3) not to the solicitors but to the plaintiff directly. In this the secretary wrote:
"I refer to a letter dated 31 march [sic] 2005 from your solicitor advising, inter alia, that you have not been afforded the seven clear days' mandatory notice.
The Management Committee has acknowledged this error at its meeting on 4th April 2005 and has resolved that another letter is to be forwarded to you requesting that you attend the next meeting of the Committee (ie on Tuesday, 19 April 2005) at 7.30 pm in order to defend the charge laid against you by the Management Committee pursuant to rules 11(b) and 12(a) of the Club's Constitution.
In addition, I wish to advise that the Committee has resolved not to extend an invitation to you to attend the Opening Ceremony on 10 April 2005 as a guest in view of the fact that you are facing a serious charge laid by the Management Committee."
There matters lay. The affidavits filed on behalf of the defendants describe the conduct in proper form of the proceedings at the meeting of 20 February and confirm that the tape‑recording is available for use by the management committee or by the plaintiff in order to establish precisely what was said at that meeting. No opportunity has been taken by the plaintiff who, because of his prior experience as an office‑bearer of the club at times when this practice of recording meetings was commonplace, must have known of the existence of such a tape, to listen to or obtain a transcript of the meeting. His counsel says that he has had an insufficient opportunity himself to have access to such a tape or a transcript of it before tonight's meeting and that there has been no response to the demand made by the plaintiff's solicitor in the letter of 31 March to include in the charge the words which his client is alleged to have uttered.
I do not regard it as an essential requirement for sufficient notice of the complainant under r 12(a) that the precise words should be disclosed to the plaintiff verbatim in a notice calling upon him to answer the charge. I consider that the letter of 28 February is unmistakable in its terms in informing the plaintiff that his conduct in making the speech alleged at the half‑yearly general meeting on 20 February is the matter of concern and the subject matter of the complaint.
That being sufficient notice, it was always open to the plaintiff to seek additional particulars and had he done so, it may be that he should have been entitled to access to the tape‑recording or a transcript of it, but the fact that this has not been sought so far does not, in my view, mean that the notice which was given was inadequate, informal or for that reason deficient.
However, there is one aspect of the letter of 28 March which suggests a partial failure to comply with the requirements of r 12(a). To repeat, r 12(a) requires that a charge must in the first place be made in writing and that it must state the nature of the offence of which the member is accused.
The letter of 28 March from the secretary, quoted previously, adds that "the abusive speech", referring to the speech on 20 February, "is deemed by the Committee to be another example of your recent unacceptable behaviour whilst on the Club premises which is clearly calculated to cause ill feeling and friction amongst Members".
There is no distinct or clear reference in this letter made to alleged "recent unacceptable behaviour" either by identifying the behaviour in time, place or content or by indicating why it is suggested that it is unacceptable or calculated to cause ill feeling. To the extent that the letter of 28 March involves a charge relying upon other "recent unacceptable behaviour", I do not consider that it complies with the obligation set out in r 12(a) to state the nature of the offence of which the member is accused.
Counsel for the management committee, however, submits that it is not the intention of the management committee to proceed to determine a charge which involves as a component, alleged recent unacceptable behaviour, whether alone or in conjunction with the speech on 20 February and that these are simply additional matters which will not be taken into account by the management committee. If that is the case, then obviously there is no necessity for more precision or detail in order to state the nature of the alleged recent unacceptable behaviour. That aspect of the matter can simply be excluded and deleted. However, that means, if that is the situation, that the letter of 28 March 2005 does not precisely state the nature of the offence of which Mr Viskovic is accused. It suggests that his conduct comprising the speech on 20 February and other "recent unacceptable behaviour" taken in conjunction constitutes a breach of the rule leading to a charge having been made. That seems to me to be deficient and Mr Viskovic appears to me to be entitled to a plain, unambiguous statement of precisely what it is that is alleged against him which excludes reference to any extraneous or other factors.
It may be that it is possible for the management committee of the club to produce a fresh statement of the alleged charge stating particularly what it is that is alleged against Mr Viskovic and if it is only his conduct in making the speech on 20 February 2005, then the allegation should be confined to that and a statement to that effect would in my view satisfy the requirements of par 12(a) of the rules.
Mr Viskovic has not had notice in that form and therefore has not had seven clear days' notice of the complaint against him. Were he to take the point that he was entitled to seven clear days' notice, he may, subject to the view of the Management Committee, succeed in obtaining an adjournment of the hearing listed tonight in order for that to be done and for him to answer the charge. If that were to be done, he would have an additional opportunity to have access to the tape‑recording or to obtain a transcript of it, if that can be achieved in a practical manner and without undue expense.
Whether he should be afforded that opportunity in all the circumstances, notwithstanding that it appears to be his entitlement under r 12, is a decision which I consider should be made by the management committee itself in the first instance and only if there were to be dissatisfaction with that decision resulting in irreparable prejudice should this Court be called upon to intervene.
I have no reason to act other than on the basis that the management committee will act responsibly, independently, fairly and in accordance with the rules of the association at its meeting tonight or at any adjournment of that meeting, and I am therefore not prepared to conclude that any decision taken by the management committee this evening, whether on an application for an adjournment; or for a refinement of the charge against the plaintiff; or for disclosure of the tape‑recording or a transcript of it, would be reached on anything other than a fair and impartial basis and, therefore, in my view, any such matters should be left to the management committee to decide.
I would not be prepared to intervene in these proceedings, notwithstanding some prima facie demonstration of lack of adequate notice of the charge, at a time when these submissions have not yet been put to the management committee or considered by it.
However, further submissions are made on behalf of the plaintiff in support of his claim for an interlocutory injunction and these assert that there is a risk of actual or perceived bias by the management committee in determining any further aspect of this charge, whether at the meeting tonight or otherwise, because in the letter of 28 March there is reference to the management committee resolving on 8 March that the plaintiff had breached r 11(b) of the Club's constitution. The submissions repeat the assertion made by the plaintiff's solicitor in his letter of 31 March that the decision has already been made. That accusation was soundly rejected by the defendants. In his affidavit of 18 April, Mr Radica says:
"The management committee never finally resolved that the plaintiff was guilty of a breach of the club's rules. All that they determined was that a charge should be laid and that the plaintiff should have the opportunity to defend that charge at a subsequent meeting. I believe that is clear from the final paragraph of my letter of 28 March and from the fact that no penalties are imposed on the plaintiff in that letter."
On one view, it is of course true to note that the form of the letter from the Club secretary of 28 March does say that the management committee resolved that there had been a breach of the rule, but I am satisfied with the explanation that, in effect, this is nothing more than an inaccurate and careless choice of words and that the letter read as a whole makes it clear that the plaintiff was being called upon to answer a charge and would be given an opportunity to do so in accordance with the rules of the club.
I therefore reject the submission that a prima facie case of actual or perceived bias has been made out against the defendants or any of them or that on that account there is any reason to prevent the management committee or any of its constituent members from further deliberations on this complaint.
In my view, the proper disposition of this case should be that this Court should decline any form of interlocutory relief and leave this matter for determination in accordance with the internal rules of the club acting on the legal principles which apply. As to the principles which apply, both in relation to applications for interlocutory injunctions to prevent expulsion or suspension of members of the Club or similar associations and in relation to the role which a Court should take on such applications, these are set out very fully in the judgment of Hasluck J in Rush v WA Amateur Football League Inc [2003] WASC 70 at [41] to [54]. I shall not read those but I accept and apply those principles in this case.
Similarly, an application of the principles to be applied is found in a more summary way in the judgment of Scott J in Harris v Liberal Party of Australia, WA Division Inc [2003] WASC 243. Another comprehensive summary of the principles, including a discussion of the many relevant authorities, can be found in the decision of the Court of Appeal of Victoria in Australian Football League & Ors v Carlton Football Club [1998] 2 VR 546, a judgment of Tadgell and Hayne JJA and Ashley AJA, especially in the reasons for decision of Tadgell JA.
In my opinion, there is no reason to believe that the management committee of the Stirling Adriatic Centre Inc will not act in accordance with the rules or accord procedural fairness to Mr Viskovic in the determination of this complaint. If he seeks additional particulars beyond those which have already been provided in the correspondence which has been given to him, he can do that by making application to the management committee at its meeting this evening. It may be that with the information which has been provided by counsel for the management committee in confirming that the only subject matter of the inquiry is going to be in relation to the speech made at the meeting on 20 February 2005, that is sufficient for Mr Viskovic to answer the complaint at the meeting tonight. If, however, he considers that it is not and he demands seven days' notice at least of the complaint under r 12, then that will be a matter for the management committee to decide.
There is no suggestion that the plaintiff would suffer irreparable damage of a pecuniary kind or that his occupation, property or welfare would be imperilled by any decision made by the management committee. It is suggested that he might be embarrassed or humiliated if an unjustifiable decision were to be taken. If there was a breach of the requirements of procedural fairness he would be able to proceed with an action challenging the validity of that decision and if he could make out his grounds, he could secure vindication and have it set aside. That does not seem to me to be any reason why this Court should depart from the long-established principle that, unless in exceptional circumstances, the management and determination of the affairs of an incorporated association should be determined by its own rules of internal management.
For that reason, I dismiss the application for the injunction.
Costs
This matter came before me this afternoon as an urgent interlocutory application for an injunction for the express purpose of preventing the management committee of the association from dealing with the subject matter of the charge at its meeting tonight. I have decided there is no reason to restrain the management committee from carrying out its duties and obligations under the rules of the Club. Therefore the plaintiff has failed and in my view should pay the costs of today's proceedings to be taxed.
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