Plaintiff v Defendant

Plaintiff v Defendant - [2014] VSC 36 - VSC 2014 case summary — Zoe

[19]

(a) on 30 September 2008 Mr Missingham sent an email to all state chairmen of the Federation informing them that the plaintiff had been suspended from his position as Secretary-General, and that the plaintiff was to be excluded from any email, mail or telephone communications regarding Federation activities until further notice;

(b) on 5 October 2008 Mr Keith, the President of the Oceania Wu Shu Federation, sent an email to the Secretary-General of the IWUF (and others) stating that the Federation had advised him of the plaintiff's suspension from the position of Secretary-General of the Federation as a result of "accusations of serious misconduct", and that as a consequence, the plaintiff was automatically suspended from any position he held in the Oceania Wu Shu Federation. At that time, the plaintiff was the Oceania Wu Shu Federation's Technical representative to the IWUF;

(c) on 5 October 2008 Mr Missingham sent an email to the Secretary-General of the IWUF stating that the plaintiff had been suspended and charged with "a range of charges relating to financial and administrative misconduct";

(d) on 7 October 2008 an email was circulated among the Federation's membership stating that Mr Missingham wished to meet with all possible members of the Federation on 9 October 2008 to discuss, among other things, the plaintiff's suspension (however, the placement of this issue on the meeting agenda was subsequently revoked);

(e) on 8 October 2008 the plaintiff sent an email to Mr Missingham which, among other things:

(i) stated that the charges set out in the attachment to the 29 September email referred to breach of rules 11(b) to (d) and 11(f) of the Rules but no such rules existed;

(ii) requested a copy of any complaint received by the Federation about his conduct;

(iii) asked what power there was to suspend him as Secretary-General; and

(iv) asked to be informed of the basis upon which he was to be prevented from contacting any witness.

(f) on 8 October 2008 Mr Missingham replied to the plaintiff's email suggesting that the plaintiff read the Rules as they answered most of what he had raised;

(g) on 9 October 2008 the plaintiff received an email from Mr David Crook, the Chairman of the Federation's Ethics Committee, which stated that the 14 day period provided by the Rules for the plaintiff to respond to the Charges was "finite";

(h) also on 9 October 2008 the plaintiff was provided with a copy of an email sent by the Chairman of the Federation's Competition and Events Committee to all members of that committee stating that Mr Missingham had directed that no communication be directed to the plaintiff; and

(i) on 14 October 2008, the plaintiff instructed his solicitor, Mr John Price of Garland Hawthorn Brahe ("GHB") to send an email to Messrs Missingham and Crook which:

(i) gave notice that the plaintiff required more than 14 days to prepare his submissions with respect to the Charges;

(ii) sought confirmation that the reference to rules 11(b) to (d) and 11(f) was in fact intended to refer to rules 11(1)(b) to (d) and (f);

(iii) sought an explanation as to the basis upon which the plaintiff was suspended as Secretary-General, given that there was no such power in the Rules, and there was no "rule 10, appendix 5" as referred to by Mr Missingham in correspondence; and

(iv) sought further information in respect of the charges, in particular, copies of Account Operational Requirements, emails and meeting minutes referred to in the Charges, full and precise details of amounts said to have been misappropriated by the plaintiff, and full details of inappropriate conduct said to have been engaged in by the plaintiff.

[120]

That Song Jin Han (SJH) did, in contravention to the two signatory requirement, create an electronic banking facility enabling him to transfer money from the Wu Shu Account without the need for a second signatory and that in excess of $14,000 was removed from the Wu Shu account via this method.
That SJH did transfer funds from the Wu Shu account into his private bank account.
That SJH did issue unauthorised 'loans' to himself with funds from the Wu Shu development account and that these 'loans' were only repaid when SJH was notified of an examination of the Wu Shu account.
That SJH did expend funds, exceeding five hundred dollars, from the Wu Shu development account without authorisation.
That SJH did not keep or provide proper invoices/receipts for a number of withdrawals from the Wu Shu account.
That SJH did operate the Wu Shu account outside of the Account Operational Requirements provided to him.
That SJH did fail to include in his Annual Reports to members cumulative deposits of $57,437 into the Wu Shu Account between 2001 and 2008.
That SJH did provide information to AKWF members that there were no monies being allocated for Wu Shu development in spite of the fact that over $57,000 was received and under his control for this purpose.
That SJH, in December '07, did request and was provided a laptop computer to assist with his administrative duties stating that he needed this laptop as he did not have one. SJH had purchased, via the Wu Shu account a laptop two months earlier.
That SJH did either coerce, influence or collude with others to create minutes authorising expenditure that exceeded the account operational procedures.
That the cumulative effect of the actions of SJH have undermined and impacted on the national and international image of the AKWF and OWUF and that SJH's actions have been a deliberate attempt to circumvent the constitutional, operational and administrative functioning of the AKWF and said actions have demonstrably been contrary to the interests of the AKWF and its members and the broader Chinese martial arts community. Said actions may include but may not be limited to the following:
1. That SJH has presided over a 'culture of fear' within the Chinese Membership of the AKWF and has intimidated AKWF members with methods that include but are not limited to: threats of influencing residency visas, withholding or removing athlete selection to international events.
2. That SJH, via a series of intermediaries has attempted to undermine the management of the AKWF including but not limited to that SJH, in February 2008, did attempt to seriously undermine the AKWF, at a critical time in its attempts to secure funding and conduct the Australian Championships, via a series of emails that were authored by SJH but sent via another AKWF member who was influenced by SJH for this purpose.
3. That SJH has coerced, influence or threatened AKWF members to withdraw entries and/or to not lodge entries into State and National AKWF events.
4. That SJH has coerced, influenced or threatened AKWF members to withdraw and/or not participate as Committee members with the CEC.
5. That SJH has behaved in a racially intolerant and inciteful manner in that he did denigrate and demean the Caucasian management of the AKWF and did suggest that the AKWF should be governed by only Chinese people.
6. That SJH did use his position for person profit at the expense of AKWF members.

At a glance

Court

Decision date

Before

Source

Judgment (133 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (2)