Ehiozee v EDO Nigerian Association of New South Wales Incorporated

Judgment 1The plaintiff, Mr Ehiozee, a founding member of the first defendant, the EDO Nigerian Association of New South Wales Incorporated ('the Association'), understood that he was the patron of the Association, having been appointed to that position by the Executive of the Association in 2002. It was after these proceedings were brought, that it came to the attention of the parties, that amendments made in 2002 to the Association's constitution, which established the patron's position, were never registered with NSW Fair Trading, as they were required to be, given the Association's registration originally under the Associations Incorporation Act 1984 and now under the Associations Incorporation Act 2009 ('the Act'). That discovery has had an impact on the course which these proceedings have taken. 2The proceedings were commenced in 2011, after a decision by the then members of the executive committee of the Association, who are the second to seventh defendants in the proceedings, that Mr Ehiozee be removed from the position of patron. That decision was made in the aftermath of a dispute between Mr Ehiozee and the second defendant, Mr Vincent Evbuomwan, the then president of the Association, over the Association's acceptance of Mr Ehiozee's gift of three goats, which were intended to be eaten by members of the Association, at its end of year festivities in 2010. 3While the goats were eventually received and eaten, the dispute led not only to Mr Ehiozee's removal from the position he understood that he held, but also to the publication of certain information about the dispute. In the result Mr Ehiozee refused to attend a 'peace meeting'; or a disciplinary committee meeting. A special general meeting of the Association was called to deal with the dispute, which Mr Ehiozee addressed, but which concluded without any resolutions about the dispute being put, because of the announcement of the executive committee's decision to 'deconfer' Mr Ehiozee as patron. This escalated the disagreement. A 'peace committee' was established to try to resolve the matter. That failed and these proceedings were commenced. Terms of settlement were later allegedly agreed, but were not implemented, as the result of a dispute over the defendants' costs. It is claimed that reports were published on Facebook and elsewhere, with the result, Mr Ehiozee claims, that he has not only been defamed by these publications, but has suffered psychological and other injuries as a result of the defendants' alleged breaches of the Association's Constitution. 4The proceedings were commenced by summons filed in February 2011. A statement of claim was filed in July and later that month, an amended statement of claim, which first raised the claims brought in defamation. The matter came before Slattery J in August 2011. His Honour took the view that urgent steps should be taken to endeavour to resolve the dispute. He directed that the plaintiff file and serve certain evidence, as well as a reply to the defendants' request for particulars; that the defamation aspect of the claim go into the defamation list; and that the matter be referred to mediation. 5Mediation occurred in September 2011, but failed to resolve the dispute or Mr Ehiozee's claims. Various directions were given as to the further preparation of the matter. The difficulty with the Association's Constitution emerged. By motions which they filed, the defendants complained about delay and the pursuit of Mr Ehiozee's claims against the personal defendants. On their approach, he ought only to be pursuing the Association. 6This judgment deals with three motions, two filed by the defendants in October and December 2011, by which various orders were sought, including that the proceedings be dismissed for want of prosecution and that the amended statement of claim filed in July be dismissed against the personal defendants, together with an order for costs in their favour. By a motion filed in December 2011, Mr Ehiozee sought leave to file a further amended statement of claim, served in November 2011, which takes account of the fact that the 2002 amendments to the Association's Constitution were not registered. 7It is now common ground between the parties that Mr Ehiozee's appointment to the position of patron was never effective, given the Association's failure to register the 2002 amendments to the Constitution. Nevertheless, Mr Ehiozee still seeks to pursue his claims that the defendants, both the Association and the individual members of the executive, damaged him by their failure to deal with the dispute over the goats in accordance with the provisions of the Constitution which governed the resolution of disputes between members of the Association. He also still seeks to pursue his claims in defamation. Given that both of his complaints arise out of the same facts, he now seeks to have both aspects of his case dealt with in the one proceedings. 8The defendants oppose the leave which Mr Ehiozee seeks. Their case is that given his delays in the prosecution of these proceedings, the leave sought ought to be refused. Mr Ehiozee now accepts that he was never validly appointed to the position of patron. It was submitted that it followed that there was no reasonable prospect that the relief which he seeks to pursue by the further amended statement of claim in respect of the alleged breaches of the Constitution will be granted: 'equity does not act in vain'. 9It was further argued that the members of the executive had 'immunity' under s 26 of the Act from personal liability for the relief which Mr Ehiozee seeks to pursue; that they have unreasonably incurred legal costs in the proceedings to date; that Mr Ehiozee's late tactical change should not be permitted (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ); that the alleged defamation occurred in February 2011; that the publications complained of were issued by the Association and not by the members of the executive; that Mr Ehiozee had himself published confidential matters to the community, with the result that the Association was obliged to report developments in the matter; that he had not only failed to mitigate his damages, he had contributed to the damages he claims to have suffered; that he had demonstrated 'commercial toughness' in relation to his dealings with the matter; that he had also persistently and wilfully acted in a manner prejudicial to the interests of the Association, contrary to the requirements of its Constitution; that even if there was an error in the application of the volunteer executive committee's powers, its members had a right and duty to act in relation to his conduct; that if Mr Ehiozee were successful, he would bankrupt the Association, which had no assets of any substance, rendering his claims futile; and that the comments in issue were truthful or legitimate comments, protected by common law privilege. 10Mr Ehiozee was invited to discontinue his actions against the personal defendants and to consent to an order for costs in their favour, so that the Association could consider whether to obtain funding from the membership to defend itself, against the claims brought against it, or to consider voluntary winding up. That invitation was not accepted. 11It was also submitted that the relief which the defendants sought would be granted, because it was evident that even if he were successful, Mr Ehiozee could only achieve limited damages, out of all proportion to the costs of the litigation. He had not been excluded from membership of the Association, but had been removed from a position which the parties now accepted never existed. In the result there was no justiciable controversy between the parties and the Court had no jurisdiction to entertain the damages claimed for breach of the Constitution.