Yema v Ethiopian Orthodox TEWAHIDO Church of DEBRE MEDHANIT MEDHANE Alem (Inc)
[2014] WASC 213
•18 JUNE 2014
YEMA -v- ETHIOPIAN ORTHODOX TEWAHIDO CHURCH OF DEBRE MEDHANIT MEDHANE ALEM (Inc) [2014] WASC 213
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 213 | |
| 18/06/2014 | |||
| Case No: | CIV:1871/2012 | 29 MAY 2014 | |
| Coram: | MASTER SANDERSON | 29/05/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's chamber summons dismissed Summary judgment for first and second defendants | ||
| B | |||
| PDF Version |
| Parties: | BIRUK YEMA ETHIOPIAN ORTHODOX TEWAHIDO CHURCH OF DEBRE MEDHANIT MEDHANE ALEM (Inc) TADELE FELEKE BELAY FANTAHUN MELKAMU ZELALEM ADISU GETAHUN BANK OF WESTERN AUSTRALIA LTD |
Catchwords: | Practice and procedure Application for summary judgment No prospect of claim succeeding Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ETHIOPIAN ORTHODOX TEWAHIDO CHURCH OF DEBRE MEDHANIT MEDHANE ALEM (Inc)
First Defendant
TADELE FELEKE
BELAY FANTAHUN
MELKAMU ZELALEM
ADISU GETAHUN
Second Defendants
BANK OF WESTERN AUSTRALIA LTD
Third Defendant
Catchwords:
Practice and procedure - Application for summary judgment - No prospect of claim succeeding - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's chamber summons dismissed
Summary judgment for first and second defendants
Category: B
Representation:
Counsel:
Plaintiff : Mr G J Carter
First Defendant : Mr S K Shepherd
Second Defendants : Mr S K Shepherd
Third Defendant : Not applicable
Solicitors:
Plaintiff : Butcher Paull & Calder
First Defendant : Fiocco's Lawyers
Second Defendants : Fiocco's Lawyers
Third Defendant : Not applicable
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: In ch 8 the author of Acts recounts how Phillip, 'one of the seven', while travelling from Jerusalem to Gaza met up with an Ethiopian. The Ethiopian was converted to Christianity. This meeting and the Ethiopian's conversion may or may not have led to the establishment of the Christian Church in Ethiopia, or as the Romans called it Abyssinia. Either way Christianity in Ethiopia, both orthodox and unorthodox, has a long history. Migrants from Ethiopia to Australia have unsurprisingly brought their religion with them.
2 Although members of a Christian community may worship the same deity they do not necessarily agree amongst themselves. Such divisions were apparent from the earliest times. In Paul's first letter to the Corinthians he urges the faithful to put aside their differences. History does not record whether Paul's words were heeded. Perhaps the disputes ended up in the Supreme Court of Greece.
3 This was the return of two interlocutory applications. The first in time was the plaintiff's application for injunctive relief against the first and second defendants. The defendants applied for summary judgment or to dismiss the application as an abuse of process.
4 At the conclusion of the hearing I indicated to the parties I would grant summary judgment to the first and second defendants against the plaintiff. I also indicated I would dismiss the plaintiff's chamber summons. These are my reasons for reaching that decision.
5 In an application for summary judgment by a defendant it must be accepted the matters pleaded in the statement of claim are correct. It must also be accepted that the plaintiff's claim is pleaded out in its entirety. In this matter the statement of claim was endorsed on the writ. The first defendant is identified as an association incorporated under the Associations Incorporation Act 1987 (WA). The plaintiff was, at the date of the issue of the proceedings, chairman of the association. It is pleaded the association's activities were governed by a set of rules referred to in the statement of claim as 'the Constitution'.
6 Paragraph 5 of the statement of claim pleads certain provisions of the Constitution. For present purposes it is enough to say the Constitution anticipates an executive committee elected for a two year period with elections held biennially. It is pleaded that an annual general meeting should have been held no later than 30 October 2011 but the meeting was not held.
7 The plaintiff claims he and the treasurer (the treasurer not being a party to these proceedings) were unlawfully removed from their positions with the first defendant. It is alleged two individuals who thereafter purported to be the chairman and treasurer of the first defendant were invalidly appointed. The statement of claim then goes on to make a series of allegations about failure to deposit into, and improperly withdrawing funds from, the first defendant's bank account with the third defendant. One of the main complaints is a parish priest was paid by the association. In some way it seems this was said to be improper.
8 The prayer for relief seeks four remedies. They are:
(1) an order that an annual general meeting of the association be held within 21 days of the date of this order;
(2) a declaration that pending an annual general meeting Biruk Yema continues to be chairman of the association;
(3) a declaration that pending an annual general meeting Yegra Amero continues to be the treasurer of the association; and
(4) a declaration that the removal of Biruk Yema and Yegra Aemro as signatories of the bank account was void ab initio.
9 It can be seen immediately none of the orders sought is of any utility. The plaintiff pleads he was elected chairman of the first defendant in February 2010. He pleads pursuant to the Constitution he was elected for a two year period. So his term of office and that of Mr Aemro expired in February 2012. That really is the end of the matter. But if that was not enough consent orders were made on 13 June 2012 to the effect the first defendant would hold an annual general meeting. That meeting was held on 22 July 2012. There is nothing to suggest that meeting was improperly convened or the persons elected to the committee were not validly appointed. But even if they were these events occurred after the issue of these proceedings and could not be litigated as part of this action.
10 The plaintiff's application can be dealt with quite simply. There is no longer an application to add plaintiffs or to amend the statement of claim. The plaintiff appears now to appreciate any causes of action which were foreshadowed in a draft amended statement of claim arose after the issue of the writ. It would be necessary for the plaintiff and others to issue fresh proceedings. There is an attempt in the summons to enforce an undertaking given by the defendants in relation to the expenditure of funds. This is effectively a motion for contempt. It is not properly brought in a chamber summons. If the plaintiff wishes to pursue this issue he must find an alternative mechanism for doing so.
11 This matter has been the subject of two mediations both of which have failed to resolve the differences between the parties. The evidence suggests the plaintiff and his followers have now set up an alternative church. Whether they have done so or not is really irrelevant to the resolution of this dispute. But it serves to highlight the pointlessness of allowing this action to continue. It will achieve nothing and waste the precious resources of the community. That is why I decided to grant summary judgment.
12 Of course the application for summary judgment is well out of time. But I am satisfied the delay is satisfactorily explained. The parties have been attempting to resolve their differences and doubtless have been acting in good faith. Moreover the strength of the defendants' case is such as to outweigh any prejudice to the plaintiff in a summary determination of the action. Accordingly the extension was granted.
13 'Every kingdom divided against itself is brought to desolation; and every city or house divided against itself shall not stand': Matthew 12:25. It is time the parties put their words into practice.
14 The parties should file brief written submissions on costs within seven days.
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