His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski

The First Plaintiff Applies to Lift a Stay

1. The first plaintiff, His Eminence Metropolitan Petar, was appointed in 1995 as the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand. The second plaintiff, Father Mitro Mitrev, was appointed by the first plaintiff in 1996 as the parish priest of the parish of St Petka in the Sydney suburb of Rockdale.
2. The first five defendants were in April 1997 the members of the executive council of the sixth defendant, which is an incorporated association known as the Macedonian Orthodox Community Church of St Petka Incorporated ("the Association"). The Association is the legal owner of the land on which the church of St Petka stands and holds other real and personal property associated with the Rockdale parish ("the parish"). The first to fifth defendants are from time to time throughout these reasons referred to collectively as "the executive council members".
3. The seventh defendant has been dismissed from the proceedings. The eighth defendant is another priest who was for a temporary period appointed (not by the first plaintiff) to perform priestly ministry at the parish. And the ninth defendant, the Attorney General of New South Wales, was joined as a party because these proceedings are in substance charitable trust proceedings.
4. The Court has had the advantage of Brereton J's 2012 summary of the issues underlying these proceedings, given in his Honour's judgment of 3 February 2012: Metropolitan Petar v Mitreski [2012] NSWSC 16 at [1], where his Honour said, despite the proceedings being in substance charitable trust proceedings, the following: "But at their core is a contest for control of the affairs of the parish of St Petka between the Church hierarchy represented by the Bishop and his appointed priest on the one hand, and on the other the Association which claims to represent the parishioners. At the heart of the dispute is a dichotomy between adherence to church law, and adherence to the constitution of the Association: those in control of the Association maintain that ownership and disposition of Association property reside with it, and are not amenable to control by the Bishop - in short that, except perhaps in relation to spiritual matters, they are legally bound by the constitution of the Association and not by the laws of the Church; whereas the Bishop contends that the Association is no more than a manifestation of the parish assembly, and that its affairs must be conducted not only in accordance with its constitution but also in accordance with church law."
5. The Court dealt with this long-running dispute in three phases. Hamilton J in 2003 determined a number of preliminary separate questions. He made declarations that certain parish property, including the parish church, was prior to its transfer to the Association, held on trust to be used by the Macedonian Orthodox Church ('the Church") as a parish church. This finding of the existence of a trust did not cover all the ancillary real property contiguous to the parish church. The trust so declared Hamilton J found was a valid charity, which trust bound the Association upon the vesting of the property in the Association: Metropolitan Petar v Mitreski [2003] NSWSC 262. Hamilton J reserved costs: Metropolitan Petar v Mitreski [2007] NSWSC 70 at [13].
6. Hamilton J's decisions left open more detailed questions concerning the precise terms of the trust, as they related to the plaintiff's allegations of breach of trust. Young CJ in Eq dealt with these matters in 2009: Metropolitan Petar v Mitreski [2009] NSWSC 106. Young CJ in Eq considered what relevant Church law was applicable to the parish of St Petka and whether the whole or parts of Church law were incorporated into the terms of the trust that Hamilton J had found. Whilst the full detail of many of the breaches of trust that were alleged is not of present relevance, the theme of these alleged breaches was generally the exclusion of the first plaintiff as Diocesan Bishop, and the second plaintiff as his appointed priest, from conducting services at the parish church and participating in the administration of the parish.
7. Young CJ in Eq found (at [2009] NSWSC 106 [375]) that the matters complained of by the plaintiffs, if established, were a breach of Church law. To the extent the terms of the trust were material to the alleged breaches, Young CJ in Eq found ([2009] NSWSC 106 at 499]) that "the terms of the relevant trust do not justify the exclusion of the Bishop from the parish church of St Petka nor the employment of any priest not authorised by the Bishop, nor the closing, alteration, addition to the church building or its ornaments without the Bishop's approval".
8. Young CJ in Eq made a costs order against the Association. Young CJ in Eq found the alleged breaches of trust propounded by the plaintiffs were established as possible breaches of trust. Young CJ in Eq was not required to determine whether breach of trust had in fact been established but rather: whether, if what had been alleged were established, it would amount to a breach of trust. In relation to that question the case propounded by the plaintiffs was successful before Young CJ in Eq, so a costs order was made against the defendants.
9. In February 2012 Brereton J dealt with the remainder of the proceedings at first instance. He did so in three judgments. In the first, Metropolitan Petar v Mitreski [2012] NSWSC 16, Brereton J dealt with the questions: what property was held by the Association on charitable trust; whether any breach of trust was established against those provisions of Church law that Young CJ in Eq had held to be terms of the trust; and what relief was available with respect to any established breaches of trust, to which there was no defence.
10. In the February 2012 judgment Brereton J concluded that certain additional ancillary real property was held on the same trusts as Hamilton J had held applied to the principal parish property. The executive council members did not dispute that the Association's exclusion of Father Mitrev from conducting services at the parish was a continuing breach of trust. Brereton J concluded: that excluding the first plaintiff from conducting services at the parish is a breach of trust; that unauthorised renovations and the relocation of religious icons amounted to a breach of trust; that certain payments to priests were a breach of trust; but that the exclusion of Father Mitrev from the executive council of the Association was not a breach of trust.
11. Issues of alleged breach of trust concerning the make-up of the membership of the Association constituted a significant part of Brereton J's February 2012 judgment. His Honour made findings and drew conclusions on this issue as follows. He found that the practice of the Church, in accordance with diocesan statutes, is that the parish priest maintains a register of those to whom he ministers as parishioners. The register is known as a domovnik, or a register of households within the parish. All the voting members of the parish should appear in the priest-maintained domovnik. Since his expulsion from the parish, Father Mitrev claimed that he continued to keep the domovnik. After Young CJ in Eq's 2009 decision, the plaintiffs' lawyers lodged a large number of applications from Father Mitrev's parishioners for membership of the Association. But the Association refused to entertain the applications on the grounds that they had not been proposed and seconded by existing members of the Association. The net result of this refusal by the Association was that voting membership of the Association no longer corresponded with what was required for a parish assembly under the diocesan statute, which on Young CJ in Eq's findings, resulted in a breach of Church law.
12. Moreover, the Association, which had responsibility for the affairs and property of the parish and which is entitled to use the church and other trust property, had a membership that differed from that required by church law and excluded a significant part of believing Church members in the parish. This inhibited the achievement of the purposes of the charitable trust and meant that the trust property was not being used for the Church or the practice of the Macedonian Orthodox religion but rather for a schismatic purpose. Breerton J found that a breach of trust was established and was continuing.
13. In March 2012, in Metropolitan Petar v Mitreski [2012] NSWSC 167, Brereton J made orders giving effect to his February 2012 judgment. Those included Order 4(d) in the following terms, which his Honour then immediately stayed: "4. ORDER that in its control and administration of the Trust Property, the Sixth Defendant, by itself, its servants and agents: (d) by 2 April 2012, admit into its membership those who are the subject of the membership applications referred to in paragraph 47 of the Affidavit of the Second Plaintiff sworn 4 August 2010 (except to the extent that any such applicant has by then informed the Sixth Defendant in writing that he or she no longer wishes to proceed with such application); and thereafter take all reasonable steps to facilitate the obtaining or renewal of membership by believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the Constitution of the Church, the Diocesan Statute and any Parish By-Laws; and be restrained from accepting or renewing any application for membership from any person who does not satisfy those criteria. [Emphasis added]"
14. On 21 December 2012, in Metropolitan Petar v Mitreski [2012] NSWSC 1610, Brereton J dealt with two outstanding issues: the alleged accessorial liability of the executive council members and issues of costs. Brereton J found that each of the executive Council members (other than the third defendant) was liable as an accessory to account for certain of the breaches of trust that had been found. Brereton J also determined that the Association pay 75% of the plaintiff's costs of the proceedings. Order (3) of the orders made on 21 December 2012 was in the following terms: "(3) Order that the Sixth Defendant Association pay 75% of the Plaintiff's costs of the proceedings, including reserved costs, not otherwise the subject of any specific costs order (including any specific "no order"), and that the First, Second, Fourth, and Fifth Defendants be jointly and severally liable with the Association for one third of those costs, that is to say 25% of the Plaintiff's costs of the proceedings not otherwise the subject of any specific costs order."
15. This order, as amended by the later orders of the Court of Appeal, is the subject of the first plaintiff's present motion.
16. Brereton J observed in his 21 December judgment (at [39]) that "it will rightly be a matter for the plaintiffs to decide whether they wish to enforce any costs order against trust assets".
17. The defendants appealed against a number of matters arising out of the judgments and orders made by Hamilton J, Young CJ in Eq and Brereton J's judgments, including Brereton J's costs orders: Macedonian Orthodox Community Church of St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223.
18. In the Court of Appeal's second judgment, Macedonian Orthodox Community Church of St Petka Incorporated v Metropolitan Petar (No 2) [2013] NSWCA 385 the Court of Appeal gave judgment varying the cost orders made at first instance and also made costs orders on the appeal. The Court of Appeal varied order (3) made by Brereton J on 21 December 2012 by substituting 50% for the percentage of 75% and substituting 10% for the percentage of 25%. The Court of Appeal then stayed order (3) of the orders made by Brereton J 21 December 2012 and Young CJ in Eq's costs orders of 9 June 2009, in the following terms: "(3) Stay order (3) made by Brereton J on 21 December 2012, as varied, and also the cost orders made by Young CJ in Eq on 9 June 2009, against the defendants until the earlier of the date upon which the defendant's entitlement to indemnity from the trust assets is determined and a date appointed by a judge of the Equity Division for this stay to conclude."
19. These Court of Appeal orders contemplated that the Association would be able to make an application to have itself indemnified out of trust assets in order to meet the enforcement of any costs order against it. Those indemnity arrangements should be in place, for the protection of the Association, before the first plaintiff actively moved to enforce the costs orders. But between 2013 and 2017 the Association did nothing to move the Court for orders that it be entitled to an indemnity out of trust assets. It explains this delay by saying that the first plaintiff did nothing to enforce the costs orders.
20. In the Court of Appeal's second judgment. In that judgment Macfarlan JA (at [30]) explained the reasons for the form of the Court of Appeal's order (3): "The Plaintiffs and Defendants agreed that this Court should remit to Brereton J for determination the question of whether the Association is entitled to be indemnified out of the trust assets in respect of costs ordered to be paid by it. This is an appropriate issue for resolution at first instance. However, as it was not one that arose on the appeal, it is not appropriate for this Court to make an order for remittal. The issue can be determined at first instance without such an order. The same position applies in relation to the question of whether the Association is entitled to be indemnified for its own costs."
21. Finally, the Court of Appeal ordered the Association to pay 75% of the plaintiff's costs of the appeal.
22. The issue of the Association's right of indemnity out of trust assets has continued to trouble the parties in these proceedings. The first plaintiff's submissions (said in [29]) that "the first plaintiff does not wish to enforce the costs orders in his favour against trust assets". This statement led to a degree of misunderstanding between the parties. What that sentence was clarified to mean is that the first plaintiff himself is not going to apply to the Court to claim that he was entitled to be indemnified for his costs out of trust assets but the first plaintiff does not wish to deny the Association the right to be paid out of trust assets. That the Association is entitled to be so paid may not ultimately be contentious.

The 2014 Proceedings

1. The present contest as to whether the stay on Brereton J's Order (3) and Young CJ in Eq's costs orders should continue, emerged from certain findings that Stevenson J made in separate but related proceedings (the 2014 proceedings) involving some of the present parties: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215. The 2014 proceedings before Stevenson J concerned the entitlement or otherwise of a certain class of persons (who were represented by the defendant in those 2014 proceedings) to become members of the Association. The first plaintiff in the present proceedings, who was also the plaintiff in the 2014 proceedings, maintained that the class was not entitled to membership of the Association, because their names did not appear in the parish domovnik, which Father Mitrev claimed that he maintained. The plaintiff in the 2014 proceedings was unsuccessful and could not secure a declaration that the defendant or the rest of the class were not entitled to members of the Association.
2. In the 2014 proceedings, the defendant succeeded, in part because it contested the manner in which Father Mitrev had maintained the parish domovnik. Father Mitrev had deposed that in 2009 he had countersigned some 321 documents, which appeared to him to be applications for membership of the Association and that he had only signed those documents after having checked that the names of all the applicants were on the domovnik. Stevenson J made strong findings that Father Mitrev had given false evidence on this issue.
3. The Association contends in the present proceedings: that Stevenson J's findings in the 2014 proceedings - that Father Mitrev had given false evidence - amounted to findings that Father Mitrev had given wilfully false evidence; that Stevenson J's findings undermine the whole basis upon which Brereton J found that the Association committed a breach of trust; that the findings further erode the basis for the orders which Brereton J made; that the Association is now therefore (subject to obtaining judicial advice) in a position to bring proceedings to set aside the orders Brereton J made and some of the orders that Young J in Eq made, including the costs orders on the grounds that those orders were procured by Father Mitrev's fraud. To complicate matters Father Mitrev has now been charged with perjury in respect of the evidence that he gave before Brereton J. His criminal trial for perjury is said to be due to take place in 2018.

The First Plaintiff's 21 July 2017 Motion

1. The first plaintiff's motion filed on 21 July 2017 seeks an order "lifting the stay on order (3) made by Brereton J on 21 December 2012…as varied by the Court of Appeal…and the costs orders made by Young CJ in Eq on 9 June 2009". The first plaintiff's motion does not directly attack any part of Hamilton J's orders.
2. The motion was argued on 20 November 2017 and briefly on 5 December 2017. Mr J. Simpkins and Mr A. Olsen of counsel appeared for the first plaintiff. Mr J. Horowitz of counsel and Mr L. Carney, solicitor appeared for the Association. Mr K. McConnell, solicitor, appeared for the 1st to 5th and the eighth defendants. Mr G. Stapleton and Mr V. Colaluce, solicitor, appeared for the ninth defendant, the Attorney General of New South Wales.
3. Pursuant to Charitable Trusts Act 1993, s 6, the Attorney General authorised the commencement of proceedings for judicial advice in relation to whether or not the Association should bring proceedings to attempt to set aside Young CJ in Eq's and Brereton J's orders ("the challenged orders") on account that they were procured by fraud. But at the time of the hearing on 20 November 2017 that consent was subject to revision, because an error had been found in the Association's financial accounts. The revised accounts were put before the Attorney General. His consent for the bringing of judicial advice proceedings was renewed before the adjourned hearing date of 5 December 2017.
4. Mr McConnell on behalf of the executive council members did not have instructions at the time of the hearing to put submissions either way in support of or against the motion. Although he indicated that were he free to do so he would be supporting the position put on behalf of the Association. Thus, the ultimate contest was between the first plaintiff and the sixth defendant.
5. The Association accepts that if the Court declines to give advice to the effect that the Association is justified in attempting to bring proceedings to set aside the Young CJ in Eq and Brereton J judgments and orders then the Association would not have a basis for opposing the lifting of the stay. In the meantime the Association says that the stay should remain in place.

Analysis of the Parties' Submissions

1. The Association is successful in resisting the relief sought on the motion. The stay will remain in place. The first plaintiff's arguments on the motion and the Association's various arguments are set out in this section, together with the Court's analysis of them.
2. Want of parties? The Association argued a threshold issue: that the first plaintiff must fail because the second plaintiff has not jointly brought the motion for a stay. The second plaintiff has not been actively involved in the proceedings for some time. Certainly, the second plaintiff was neither seeking to have the stay lifted nor to enforce Young CJ in Eq's and Brereton J's costs orders against any of the defendants.
3. The Association submitted that without the participation of the second plaintiff the first plaintiff has not demonstrated there would be any utility in granting the orders sought in the motion. The Association submitted that the application to lift the stay should properly have been bought only by both plaintiffs jointly, and both plaintiffs should join in any application to have those costs assessed, as the parties have a joint right to costs, not a joint and several right: Farrow Mortgage Services Pty Limited (in liquidation) v Emanuele [1998] FCA 1236; Re Thompson; Ex parte Thompson v Grimley Pty Limited (1995) 135 ALR 700, at 708 - 710 and Australian Workers Union v Bowen (1946) 72 CLR 575, and 591 ("Bowen's Case"). The Association further argues that were the second plaintiff in fact to be joined as a co-plaintiff that the plaintiffs should be denied relief on the basis of the second plaintiff's alleged "unclean hands".
4. But the first plaintiff's answer to this submission is persuasive. Legal Profession Act 2004, ss 353 and 356 (and any other applicable predecessor legislation) confer a right on the first plaintiff to apply for an assessment of costs without the second plaintiff. And Bowen's Case stands for the proposition that one joint creditor can compel another joint creditor to lend his name to an action to recover a debt, upon offering the other creditor an indemnity against liability for costs, and if the other creditor refuses the other creditor may be joined as a defendant. Moreover, payment of a joint debt to one creditor discharges the debt. From this it logically follows (as Hodgson J noted in Manzo v 555/255 Pitt Street Pty Limited (1990) 21 NSWLR 1, at 7F) that it must be open to one joint creditor to demand payment of a joint debt. And, it would be odd if the law were as the Association contends; otherwise creditors would be able to play joint debtors off against one another.
5. The second plaintiff's non-involvement in the present motion does not present any difficulty for the first plaintiff in seeking to remove the existing stay. Were the stay to be lifted, the first plaintiff is in a position to join the second plaintiff to any application for the enforcement of the plaintiff's costs orders against the defendants, if the second plaintiff is otherwise unwilling to cooperate in their enforcement.
6. But the first plaintiff was less successful on the remaining arguments.
7. Association's Action Futile? The first plaintiff challenged the Association's defence to the lifting of the stay on the basis that the Association's proposed proceedings are doomed to failure. Various arguments were developed to support the conclusion that the Court should not defer lifting the stay because the whole enterprise the Association contemplated was fruitless. This argument was put in a number of different ways. But none of the ways it was put was persuasive.
8. The first plaintiff argued that any proceedings to set aside the challenged costs orders were unlikely to be successful. The law does not permit collateral attacks on judgments for the perjury of a witness: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 ("Cabassi"). A direct attack is possible but depends on establishing causative fraud based on fresh evidence, and the mere proof of perjury may not be enough on its own: Wentworth v Rogers (No. 5)(1986) 6 NSWLR 534 at 538 and Cabassi at 147. Another argument was that Father Mitrev's false evidence as to the keeping of the domovnik did not necessarily negative Brereton J's conclusion that the rejection of the applications for membership had been a breach of trust. Father Mitrev's evidence is said to go to the separate question of whether Brereton J's requirement upon the Association to admit members was whether those members were indeed on the Parish Registry, the domovnik.
9. But these matters cannot be determined now. Whether there is arguable merit in these points will be evaluated in the judicial advice proceedings, which the first plaintiff proposes to bring. This Court is not now in a position to decide that the proceedings to set aside the challenged costs orders for fraud are bound to fail. If the Court is prepared to give judicial advice that the proceedings were at least maintainable, there seems every reason to at least leave the stay in place until the opportunity to take judicial advice is offered to the Association.
10. The Association accepts that if it does not get judicial advice to that effect the stay can be lifted, the appropriate course is to give the parties liberty to apply for the lifting of the stay if the judicial advice to proceed does not support the Association making an application to set aside the challenged orders.
11. A Note of Caution. In putting his argument Mr Horowitz appeared to approach the issues on the basis that counsel had conceded on behalf of Father Mitrev that he had given deliberately false evidence. The matter need not be debated now. The details will be considered on another occasion. But neither a perusal of the transcript of the admission, nor the experience of the counsel who gave it, Mr Parker SC, as his Honour then was, gives much support for the conclusion that an admission of deliberately false conduct was made by counsel. There does appear to be a concession from counsel of the evidence being false, based upon the cross-examination that had taken place. But a Court would not readily infer that experienced counsel would make public admission of criminal conduct on behalf of a client. These observations show that the fraud alleged to underlie the application to set aside the challenged orders may perhaps not be easily established.
12. Purpose of the Stay. The first plaintiff argues that the basis for the making of the stay order was to allow determination of the question of whether the Association was entitled to be indemnified out of trust assets in respect of the costs orders that it may have to pay. The first plaintiff argues that because the Association did not make an application for indemnity out of trust assets that the underlying purpose of the grant of the stay has failed and it should now be lifted.
13. But there are three answers to this. First the Court gave a general discretion to re-visit the matter and determine when the stay should be lifted, not limited by the purpose of applying for indemnity out of estate assets and that is what is happening now. Second, even though the original purpose for the stay may have been an opportunity to clarify the Association's right of indemnity from trust assets, that does not preclude the Court from, upon a change of circumstances, considering other reasons for maintaining the stay, in light of developments such as those in the 2014 proceedings. Third, the Association is taking the reasonable position that the stay should not survive the giving of judicial advice - that the Association would not be justified in commencing proceedings to impugn the challenged orders. So, the stay will quickly dissolve if the new purpose is not fulfilled.
14. The first plaintiff further argues that even if, based on Father Mitrev's alleged perjury, proceedings were commenced to impugn the challenged orders, that those proceedings would only target some smaller proportion of the existing costs orders and not all the costs orders to which the first plaintiff is actually entitled.
15. But in my view it is not easy to isolate any parts of Brereton J's and Young CJ in Eq's reasoning and final costs orders that are unaffected by the impugning of the challenged decisions. That difficulty means, in my view, that the appropriate course is to leave the stay fully in place for the time being.
16. The Other Defendants. Finally there is the question of the individual executive council members. The first plaintiff argues that to the extent that the costs orders against the individual executive council members are also stayed, as distinct from the costs orders against the Association, the stay should not remain, as it is for the Association to make an application to determine whether it can have a right of indemnity against the trust assets and the individuals do not apparently have that right.
17. But the individual executive council members have the benefit of a written indemnity as to their costs from the Association. This indemnity represents one of the Association's costs liabilities of the proceedings, in respect of which it would be arguably able to claim an indemnity out of trust assets. Whether or not the stay is lifted against the executive council members, it is logical that their ability for their costs to be paid out of trust assets be considered first. There seems no rational basis for separating out the pursuit of costs orders against the individuals from enforcement against the Association. The stay will remain in place in respect of them as well.

The Further Conduct of the Proceedings

1. If the stay is not to be lifted, as these reasons have found it should not, it is imperative that proceedings as long-standing as these, be concluded with due expedition. There is every reason therefore why the stay should now only be continued on terms that the Association proceed with due expedition to pursue any application for judicial advice and to pursue any proceedings to set aside the judgments on which the costs orders are founded. The orders made below reflect this requirement. If it remains an issue, the Association should also pursue with due expedition the original question of whether the Association can indemnify itself out of trust assets in respect of costs orders against it and in respect of defence costs.

Conclusions and Orders

1. In summary, the Court is persuaded that the continuation of the stay effected by Brereton J's orders of 21 December 2012, as varied by the Court of Appeal, is warranted, at least for a limited period. But the stay should only be continued on terms that require the sixth defendant to expeditiously obtain judicial advice, and thereafter to expeditiously bring such proceedings as it is advised to challenge Brereton J's orders and Young CJ in Eq's orders on the grounds that those orders were procured by fraud, together with any proceedings to have costs orders against it and defence costs paid out of trust assets.
2. For the reasons given, the Court makes the following orders and directions: 1. the relief sought in order (1) of the first plaintiff's motion of 21 July 2017 is dismissed; 2. the stay effected by order (3) of the orders made by Brereton J on 21 December 2012 upon the orders for costs against the defendants made that same day, as varied by the orders of the Court of Appeal in March 2013 to include the costs orders Young CJ in Eq made on 9 June 2009, will continue until further order but upon terms that the sixth defendant (a) must expeditiously seek judicial advice as to whether or not the sixth defendant is justified in commencing proceedings to set aside the said costs orders, and then in light of any judicial advice so given; (b) must expeditiously take proceedings to set aside the said costs orders; and (c) must also apply with expedition to have any costs orders made against it and its defence costs paid out of trust assets. 3. Direct the parties to confer before the end of February 2018 with a view to resolving any issues of costs consequent upon the giving of these reasons and the making of these orders; 4. Unless the parties agree upon the costs outcomes of the plaintiffs' motion, direct the parties to exchange submissions on issues of costs by 4 pm on 5 March 2018; and 5. Adjourn the proceedings for any argument on costs and any other consequential orders to 9:30am on 9 March 2018. 6. Liberty to apply.

Amendments 29 January 2018 - representation on coversheet [29] first line "Association" replaced with "defendant" [30] spelling of representation amended. 07 February 2018 - coversheet - parties inserted 09 March 2018 - [24] last line, "and nothing" changed to "did nothing" 09 March 2018 - ";'s" deleted from title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018