Plaintiffs v Defendant

ESTOPPEL - Claim to membership of Association by estoppel - Whether representations made with the authority of the Association - Whether estoppel would undermine statutory scheme of incorporated associations - Whether estoppel elements established - Reasonableness of reliance, knowledge of assumption and unconscionability not established - Estoppel not established.

FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INC

1 This dispute is about who the members of the defendant, the Free Wesleyan Church of Tonga in Australia (Victoria) Inc ('the Association'), are. The Association exists to assist people, mainly people who were born in Tonga or people who are of Tongan descent, to worship God in accordance with Christian principles. It is linked to the teachings of John Wesley in the eighteenth century. It originated with a few people joining in worship in a garage in Deer Park. In the early 1980s, it became known as a Fellowship and in 1991 was incorporated. It owns church properties in Sunshine, Werribee and Dandenong. This proceeding arises from a dispute in 2014 between warring groups in the Church, which at least in part, was about the control of the Werribee Church property.

2 The term 'Fellowship' will be used to refer to the Church prior to its incorporation in 1991, and the term 'Association' will be used to refer to it during the period thereafter.

3 The dispute about the identity of the members of the Association has been refined to the identification of its members immediately prior to its incorporation on 4 March 1991, because those members automatically became members of the Association by operation of statute.[1] The identification of those persons is also significant because the parties agree that, save for the possible membership of six plaintiffs who claim membership by estoppel, no new members joined the Association between 4 March 1991 and 18 July 2015, because the requirements for admission of members to the Association under its 1991 rules were not observed. All parties seem to have ignored them or been unaware of their requirements. The date of 18 July 2015 is important, because on that day the Association purported to adopt new rules, with new procedures for the admission of members. A number of people have been purportedly admitted as members under those rules. But the plaintiffs challenge those rules and the validity of the meeting that adopted them, alleging that notice of the meeting was not given to all members, that proxies held by two of the plaintiffs were wrongly excluded and that a number of people who were not members participated in and voted in the meeting.

4 Arising from those facts in this unfortunate dispute, the following issues must be answered:

(a) Issue 1, the membership rule: who are the members of the defendant Association? This question turns in part on who the members of the Fellowship were on 3 March 1991 immediately prior to incorporation. That turns on identifying the membership rule of the Fellowship and whether, as the defendant contends, by custom and practice it included a provision that only persons who had attained the status of Lotu Fehu'i could be members.

(b) Issue 2, cessation: which of the plaintiffs who were members of the Association have ceased to be members because they have left congregations or ceased their involvement with it or did not reply to the Secretary's letter of 27 July 2015 by stating that they wished to remain a member of the Association? The validity of that letter turns in part on whether the 18 July 2015 amendments were validly made.

(c) Issue 3, the 2015 amendments: were the 2015 rules validly adopted, and if not, do the 1991 rules continue to apply?

(d) Issue 4, estoppel: is the Association estopped from denying the membership of six persons, being the first, third, fourth, sixth, seventh and twenty-sixth plaintiffs who contend that the Association is estopped from denying that they became members after its incorporation on 3 March 1991?

5 As I have mentioned, it is common ground that no person became a member of the Association under its 1991 Rules, meaning that no persons became members between 3 March 1991 and 18 July 2015. The possible exceptions to this are the six estoppel plaintiffs.

Church terminology: Lotu Fehu'i, Akonaki, Malanga and Confirmed Members

6 At this introductory stage of this judgment, it is necessary to refer to and explain four terms of significance, which concern roles or statuses in the Church.

7 During the Fellowship years, and indeed after incorporation, the Church had three principal spiritual roles or ranks other than Minister. These roles were voluntary and involved the making of a commitment to adhere to the rules of the Church and to Christian teachings. Their relevance to this proceeding is established by the defendant's pleading that the attainment of the role of Lotu Fehu'i was the means by which one became a member of the Fellowship before incorporation.

8 The first position is that of 'Lotu Fehu'i'. This term translates to 'prayer requester',[2] which is reference to the fact that Lotu Fehu'i have begun their spiritual journey and require the help of prayers.[3] This spiritual role is provided for by the Free Wesleyan Church of Tonga Constitution, the third edition of 1969, and in the Church's second edition of its Constitution of 1986 - in Chapter 4 entitled 'Spiritual Responsibilities'.

9 Lotu Fehu'i status is open to 'anyone who wants the truth about Godly life and who participates in the meetings to share and have discussions with his/her fellow peers'.[4] The Church's Constitution requires that they meet monthly with the Minister or a lay preacher, discussed below, for counsel and support. In order to attain Lotu Fehu'i status, one must make a solemn commitment to obey the rules of the Church and must be a trainee for one month.[5] A person will be appointed Lotu Fehu'i if their 'character and conduct is assessed as satisfactory by the Minister'.[6] Once a person becomes Lotu Fehu'i they are unable to consume alcohol, have pre-marital relations, go dancing or gamble.[7]

10 Ms Haitelensia Tu'akoi described the step of becoming Lotu Fehu'i as follows:

I suppose when you become a Lotu Fehu'i you place yourself under the spiritual authority of the church and of the president or the minister of the church. Like I said before, you feel like you belong. There's a sense of belonging.[8]

11 The position of Akonaki is also provided for in the Tongan Constitution and Chapter 4 of the Church's second Constitution. The role of Akonaki is available only to those women who have been Lotu Fehu'i for at least six months. Upon application, a Minister may appoint a person Akonaki after consideration of her character and suitability.[9] The role in English is referred to as the 'female advisers'.[10] Akonaki are to hold quarterly meetings with the Minister to check on their lives and progress within their assigned roles. If attaining Lotu Fehu'i status is the first step upon a churchgoers' spiritual journey, Akonaki is a further step in advancement.

12 Akonaki are afforded greater responsibilities than Lotu Fehu'i, which include the privilege of running a service and preaching from the Church's pulpit,[11] whereas Lotu Fehu'i may run a service only from a table in the church. Akonaki remain bound by their commitment to adhere to the word of God and the rules of the Church, such as refraining from the consumption of alcohol.

13 The position of Malanga is also provided for in the Tongan Constitution and Chapter 4 of the Church's second Constitution. The role of Malanga is open to men or women who have attained Lotu Fehu'i status. A Malanga is a 'lay preacher' who is appointed by the Church to preach at services. A person wanting to become Malanga must undertake 9-12 months of probation after which they are assessed by the Minister on their knowledge of the Bible.[12] If found to be of good character they will be nominated by the Minister. Their principal role is to 'preach the Gospel and spread the same good news to the world'.[13] They are to meet monthly with the Minister and be questioned on the status of their spiritual journey and how they are coping with their responsibilities. Their conduct is subject to continued scrutiny and their status as lay preacher may be removed if their character and conduct is deemed to be unbefitting of their role.[14]

14 Some evidence was led at trial that the role of Akonaki was the female equivalent of the role of Malanga.[15] While is possible that is how the roles operate in practice, both the Tongan Constitution and the Church's second Constitution distinguish between the roles. Further, the role of Malanga is expressly available to men and women under chapter 4, clause 3 of the second edition of the Constitution. It is therefore the case that the roles are distinct, and the evidence of Ms Kalu at trial suggested that the role of Malanga was superior to that of Akonaki:

So that is a Lotu Fehu'i, which is like the beginners entry into first steps of your walk with God; and then you become an Akonaki; and then you become a Malanga.[16]

15 It appears that the role of Akonaki is a unique 'adviser' role for women within the Church which grants certain responsibilities, but that Malanga remains a distinct role of preaching.

16 The term 'confirmed member' appears to be used interchangeably with 'Lotu Fehu'i'. Both the plaintiffs' and the defendant's witnesses often used the two terms as equivalents, responding to questions regarding Lotu Fehu'i with answers describing confirmed members and vice versa.[17] One of the plaintiff's witness, Mr Sione Halahala, explicitly agreed that Lotu Fehu'i were what other witnesses had described as confirmed members,[18] and Mr Robert Wall, a witness for the defendant, stated that 'A Lotu Fehu'i is a confirmed member'.[19] However, it seems likely that 'confirmed member' also refers to Malanga and Akonaki. This broader meaning is consistent with how the cited witnesses used the term, and also reflects this helpful exchange between the defendant's counsel and Mr Ofamo'oni:

Yes, now let me ask you that. A confirmed member is Lotu Fehu'i; correct?

MRS BEALE (interpreter): Lotu Fehu'i. Sorry, can I rephrase again? (Question interpreted.)

WITNESS: Yes, this is the first step to be confirmed but you still be called confirmed member if you a lay preacher.

MR MARKS: It was a step up in the rank, Mr Ofamo'omi. You got Lotu Fehu'i first and then Malanga later, and by Malanga become a lay preacher if you wanted to; is that correct?---Yes.[20]

17 I will also mention the word 'Church', which was used with different meanings throughout the hearing. Most commonly it was used as an alternative to the more formal terms of Fellowship or Association. Many people understandably regarded themselves as belonging to a Church, which in this instance was a religious congregation which worships God according to Christian beliefs. Although, the legal questions for determination are whether the plaintiffs belonged to a Fellowship or an Association, it was clear in the evidence that witnesses in using the word Church were mostly intending to refer to the religious group to which they considered that they belonged, whatever its formal title. I did not understand most witnesses as regarding themselves as members of the Fellowship or the Church, merely by being a congregational participant at church services.

The July 2014 dispute and the 2014 proceeding

18 The dispute between the parties first led to litigation in a proceeding in 2014. A disagreement had been brewing amongst the congregations of the Melbourne Church for about 12 months prior to a meeting in July 2014. At that meeting, three people had their status as preachers removed: Pita Ofamo'oni, Fohe Tautalanoa and Haniteli Tauatevalu.[21] There was also dispute about who could vote for members of the Association's management committee. As a consequence of the dispute and the removal of preachers, a group of people walked out of the meeting.[22] This group and their supporters began independently worshipping at the Werribee Church.

19 This dispute led to the commencement of the first proceeding, S CI 2014 06108 ('the 2014 proceeding') in which the Association sued Pita Ofamo'oni for possession of the Werribee church and property. Mr Ofamo'oni sought an injunction that the Church be restrained until further order from dealing with or disposing or selling, mortgaging or otherwise encumbering the church at Werribee. The Association brought a cross-summons seeking an order that it be authorised to sell the Werribee property and that the defendant not interfere with the sale and vacate the property.

20 Throughout this dispute, the Association undertook that it would not sell, dispose or otherwise deal with the property, first prior to 17 February 2016, which date was later extended. The defendant, Mr Ofamo'oni, undertook that he would permit the Association to inspect the property as to its state and condition upon giving seven days prior written notice of its intention so to do. These undertakings are contained in various orders including those made by Rush J on 5 December 2014 and those made by Almond J on 28 August 2015. Ultimately, by orders I made on 22 April 2016, the Association was released from its undertaking in light of a similar such undertaking having been made in this 2015 proceeding.

21 This proceeding - S CI 2015 04742 - was commenced in the Magistrates' Court of Victoria in November 2014, seeking orders under the Associations Incorporation Act 1981 (the '1981 Act'), alleging oppressive conduct by the Association. Specifically, the plaintiffs alleged that the Association's failure to keep the Werribee church open and to compile a proper list of members, and to give those members proper notice of annual general meetings, constituted oppressive conduct. That conduct was said to have been unfairly prejudicial and discriminatory against certain members of the Association and contrary to the interest of all its members. The proceeding was subsequently transferred to this Court pursuant to s 69 of the Associations Incorporation Reform Act 2012 (the '2012 Act').

22 Both the 2014 and the 2015 proceedings were mediated in February 2017, and on 10 March 2017 the parties signed a mediation agreement. It is sufficient to say that, under the agreement, if the parties could not reach agreement, then it was for the Court to determine the issue of membership and the list of members.

23 The parties could not reach agreement about the membership rule or the identity of the Association's members, so in this, the 2015 proceeding, the Court must determine the membership rule and whether the plaintiffs are members of the Association.

24 The case was delayed to a large degree by issues arising from the plaintiffs' pleadings, the question of the appropriate parties and, most fundamentally, the identification of the membership rule on which they relied. Delay occurred in the plaintiffs deciding how many plaintiffs there were to be and whether a representative action should be commenced. The addition of an estoppel claim also led to pleading disputes.[23]

25 The proceeding was adjourned on a number of occasions, principally because of issues with the plaintiffs' pleadings and decisions to allow the plaintiffs to file further amended statements of claim. A number of directions days dealing with interlocutory matters were required. Time was also required to ensure that parties, many of whom were not proficient in English, were aware of the nature of the proceeding and the consequences for them of its possible outcomes.

26 Five days of hearing occurred in May 2017, during which three of the plaintiffs' witnesses gave evidence, but it was clear at the end of that week that the pleadings were not in a state to permit the trial to embody the case that the plaintiffs desired to bring.

27 The proceeding was due to recommence in late September 2017, but unfortunately counsel for the plaintiffs was unable to continue with the case. The proceeding was further adjourned and resumed on 12 February 2018.

28 The proceeding continued to be heard through February and early March 2018, and a number of further written submissions were filed in March 2018, after which the Court reserved its decision.

29 Many of the witnesses required the assistance of Tongan interpreters. But there are only a limited number of such interpreters, and there were none who the parties accepted as being perceived as having no direct or indirect connection with persons involved in the proceeding. The only solution was to swear two interpreters, one nominated by the plaintiffs and the other by the defendant and to allow the plaintiffs' interpreter to interpret the evidence of the plaintiffs' witnesses, with the defendant's interpreter present and able to provide a separate interpretation if that was thought necessary. The same approach was applied with the defendant's witnesses save that the defendant's interpreter took the principal role of interpreting the evidence of the defendant's witnesses.

30 A number of the documents to which I refer were written in Tongan and then translated into English and on occasions, witnesses said in effect that there was no exact equivalent word or phrase for the Tongan text.

31 The Fellowship of the Free Wesleyan Church of Tonga in Australia (Victoria) had its beginnings in a group of no more than 15-20 Tongan people,[24] who joined together on Sundays for worship in 1978[25] at the home of Ms Ana Grima's sister in Deer Park.[26] Ms Grima is the fifth plaintiff and was Treasurer of the Fellowship, and later the Association, between 1983 and 2012.

32 Mr Fohe Tautalanoa, the first secretary of the Fellowship following election in 1983, stated that he became a member in 1979 when the church was called the Tongan Fellowship Church, which was held 'in the garage of Lose Tuxworth who is not named in the list of original members'.[27] The Fellowship was unincorporated.

33 Mrs Vika Tautalanoa, who is married to Fohe Tautalanoa, described the commencement of the Fellowship as:

Because in those days, those wives who married to Australians, and we start moving to the country and we get together and then we decided we better start a fellowship so we can do something on Sunday.[28]

34 Ms Grima agreed that at about that time the Fellowship started to become more formal and it started to have meetings and rules. But she said:

All the time they had in mind, when they were forming their rules, keeping true to the spirit of the Tongan church and its teachings? ---Yes, but this was all verbal. There was nothing written and give[n] to the member. The rules, yes, we do know, we have some rules, but there was nothing written and give[n] to the members.

It was all quite informal for a while, wasn't it?---It was only verbal.

Yes, because they were quite a small group and everybody was glad to be there and glad to be among friends; correct? ---Yes.

And glad to have a common affiliation; correct?---Yes.

With the Tongan church back home? ---Yes we used the same hymn, the same Bible.

And the same rules, more or less?---Similar rules, not all rules.

And over time, things became more formal and, when they did, the little group started to formulate its rules; correct? ---Yes.[29]

35 The defendant summarised the origins of the Fellowship and later the Association as follows:

It appears to be common ground that the Fellowship started life in 1978 as a small group of like-minded individuals who met for worship regularly at the Deer Park Uniting Church. Most of these persons came to Australia from Tonga, where they had been brought up in the traditions and customs of the Free Wesleyan Church of Tonga, which is the main Christian Church in Tonga, and most were members of that church. They sought to replicate the practices of the Tongan Church, in circumstances where there was no Tongan Church in Melbourne at that time.[30]

36 A service was held every second Sunday at the home of members. The Uniting Church at Deer Park was situated across the road from the home of Ms Grima's sister. Once a month the Fellowship would hire that Church to hold a service.

37 In 1982, due to increased membership, the Tongan people who worshipped God at Deer Park started to develop into a more formal group and decided to draw up a Constitution. A committee or group of worshippers was formed to commence this work. The word 'Fellowship' began to be used to describe the group. It is a word often used to describe a group of worshippers of the same church or religious community or belief.

38 During this early period of the Fellowship, the caretakers, who later became 'office-bearers' of the Church, were elected by vote of the entire congregation.

39 Office-bearers were first elected at a Meeting for the General Election of the Free Tongan Fellowship held on Sunday 16 October 1983, the minutes of which provide a good insight into the life of, and customs and practice of, the Fellowship five years on from its establishment in the garage of a Deer Park home.[31] There is no reference in the minutes to candidates for election having to have attained the status of Lotu Fehu'i. The minutes suggest that it was a lively meeting with many contested elections of office-bearers. For instance, the entry in respect of the election of Mr Fohe Tautalanoa as the Secretary is as follows:

1. SECRETARY -Three names were nominated, 1. Pauline Liu, 2. Hulita T., Fohe Tautalanoa. Votes were taken and the general meeting elected Fohe Tautalanoa to be the Fellowship Secretary.

40 The minutes record that, in respect of one position, two persons showed anger at the election result saying that he was not good enough for that position.

41 Based on Ms Grima's evidence as to the number of Lotu Fehu'i in the Fellowship, referred to below, it seems clear that many of the people who were nominated for offices were not Lotu Fehu'i. Ms Grima was one of two candidates for the Treasurer's position and was elected, although she was not then Lotu Fehu'i.

42 More than one candidate was nominated for all of the office-bearer positions save for the position of the Sunday School Teacher, although some persons declined to accept nomination.

These office-bearers have been elected to carry out their various duties for one year. However, anyone who may not be doing his/her duty well will be dealt with accordingly. The meeting asked the Secretary (Fohe) to make sure that everything is alright with the Church at Footscray when we move to start there next month (November). Meeting closed with a hymn and benediction.

44 The Fellowship had a small management committee and a constitution was developed.

45 The Fellowship decided to move their services to the Uniting Church at Barkly Street, Footscray and did so in November 1983. There was no suggestion that only Lotu Fehu'i voted on this decision. This move coincided with the appointment of the Fellowship's first Minister, Mr Taniela Vaotangi, who lived in Burwood,[32] which is closer to Footscray than to Deer Park.[33] He was the Minister until 2010, when he was replaced by the current Minister Mr Sione Tu'akoi. Mr Vaotangi was unable to give evidence. It is unclear from the evidence whether initially he was the full time minister of the Fellowship.[34] It seems that during the Deer Park days he would conduct services intermittently. He then spearheaded the establishment of the Footscray Church.

46 The congregation moved to premises at Francis Street, Yarraville in about 1991 or 1992. A congregation at Werribee was established in 1992; which worshipped in the Werribee Uniting Church building until its own church was built in 1998. A congregation at Dandenong was established in about 2000.

47 The present Sunshine Church appears to have been built in 2007, at which time the Yarraville congregation moved there and became the Sunshine congregation.[35]

48 For the better structure of this judgment, I have set out in an Appendix the relevant parts of the lengthy texts of the Fellowship's Constitutions, the Association's rules and the relevant provisions of the 1981 and 2012 Acts. But I also set out in the judgment key parts of those instruments or documents when they are relevant to the particular issues being considered. Some repetition in this judgment is inevitable and required in respect of those documents and other matters.

49 A printed version of the two editions of the Constitution of the Free Tongan Fellowship, Melbourne, contained a 'Short Explanatory Note on the First Edition' which stated:

The Free Tongan Fellowship was established by a small group in 1978. They met for worship every third Sunday of the month at the Uniting Church, Deer Park.

In 1982, due to increasing membership, it was considered crucial that a Constitution be developed. A Committee was set up to work with the Fellowship towards this aim through meetings and discussions. The General Meeting of January 1983 approved a Constitution for implementation one year later.

The Church at Deer Park was getting small so the General Meeting of 16 October 1983 decided to move the Fellowship to the Uniting Church at 300 Barkly Street, Footscray. Then in January 1984, the General Meeting finally gave full endorsement that the Constitution be adopted.

As representatives of the Free Tongan Fellowship, we hereby certify that the General Meeting approved through a ballot and duly confirmed the Constitution and Regulations. Dated 16 January 1984.

AIMS: i.. Try to learn and know more about Christian teaching and values and then endeavour to share those experiences with others.

1. Encourage members to keep and observe Tongan customs and ways that are thought to be good.

iii. To create good personal relationship among members.

51 Sections 3 and 4 of the first edition of the Constitution stated:

1. Membership is free for all people, provided their names are registered in the Fellowship Registration Book.
2. Any member or members who have refused to accept decisions already made by the General Meeting may be asked to give their reason. If their answers are not satisfactory, then the General Meeting with 2/3 majority got the right to have their names deleted from the Registration Book, which would mean that they are no longer members of the Free Tongan Fellowship.

1. Election is to be held once a year; before this election the Chairperson should formally announce that all current positions are vacant.
2. No person should be allowed to hold an office in the Fellowship unless she/he is an Australian permanent resident and has been an active fellowship for at least one year.
3. One has to be an active member of the Fellowship for three months before she/he is eligible to vote.

52 In 1986, a second edition of the Constitution of the Fellowship was developed ('the second Constitution' or 'the 1986 Constitution'). At this time, approximately 70 people attended the Sunday Service in Footscray.[36]

53 The second edition of the Constitution contained the following introduction or Explanatory Note:

THE SECOND EDITION

In late 1984, a request was received to revise and extend the scope of coverage of the Constitution to include more of the Fellowship's spiritual activities. Revisions were carried out and in February 1985, the General Meeting reviewed and discussed the revisions and extensions, which were eventually endorsed.

The General Meeting of January 1986 decided to adopt this second edition of the Constitution.

As representatives of the Free Tongan Fellowship, we hereby certify that the General Meeting confirmed through a ballot the revisions and extensions of the scope of the Constitution contained herein. Dated 26 January 1986.

54 The 1986 Constitution added rules in relation to baptisms, descriptions of meetings, and made provisions for 'class leaders'.[37] The objectives of the 1986 Constitution were expressed as:

1. Try to learn and know more about Christian teaching and values and then endeavour to share those values with others.
2. Encourage members to retain certain aspects of the Tongan customs and culture that are good and just
3. To maintain lasting relationships that are peaceful, joyful and loving between all members

55 The 1986 Constitution's membership rule stated:

1. Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.
2. If any member or members disagree with a decision made by the General Meeting that causes them to be in absentia or being critical in an adverse manner, the General Meeting has the authority to suspend them with their names removed from the Registry Book provided that the vote is passes by a two thirds (2/3) majority.
3. Those whose names have been removed from the Registry Book will no longer be part of the Fellowship and they will have no entitlements to assets, finance or any other goods.

1. Election of office-bearers is to be held once a year but prior to the election, the Chair will announce and release all positions available for election.
2. No person will be allowed to hold office if he/she is not a permanent resident/citizen of Australia and an active member of the Fellowship with no less than one year membership.
3. No person will be allowed to vote unless one has been a member for three months and above.
4. The General Meeting shall have the right to confirm whether voting is to be by show of hands or by paper ballot.
5. If required, the Constitution may be read during the General Meeting.

57 The question of whether a Registration or Registry Book ('the Registry Book') of members was kept is important because of the terms of rule 3 of the Constitution. Fohe Tauatalanoa, the Fellowship's first secretary, stated that:

To my knowledge there was no registry book as such however there were minute books in which members who were assigned to certain cell groups were recorded as being members. The cell groups were small groups of members that were assigned for fund raising and to attend to pastoral care matters concerning the cell members within the group. The rules did not provide a separate category of membership for cell members and the rules did not in fact cover the issue of cell members however in order to be part of a cell group you had to be a member of the Church. You could not participate in a cell group if you were not a member within clause 3(i) of the Rules.[38]

He said that it was up to the Minister to keep a record of members.[39]

58 This evidence was consistent with that of the first treasurer Ms Grima, who stated that:

Once you let the steward, Minister or Secretary know that you wish to become an active member of 'the church' you would then be allocated to a cell group. Where a cell group leader will introduce you to other group members, and keep you informed of what is going on within the church outside of what you would be told at church. The cell group leader are automatically members of the Committee for the purpose that they would be able to report back to the cell group what was discussed a committee meetings, and keep points of discussion between the cell groups and the committee connected at all times.

When you are a member of [a] cell group you are then listed as a member, as you are now committed to what [the] cell group decides on doing and what the church agrees the cell groups carry out and do.

I have always been a member of a cell group and know how it works and the reason for the cell groups existence, we are members of a cell group, and we the members of the cell group work closely together to look after one another, and to work together to reach our cell group allocated funds for our annual offering for the church's work and visions which have been agreed on by the members of 'the church'.[40]

In the period of time [in] which I was treasurer there was no formal list of members of the Church as such. There was never a list of persons purporting to be members stating their address and the date upon which they became members.[41]

60 After the adoption of the second edition of the Constitution, the Fellowship began to conduct quarterly meetings ('quarterly meetings').[42] These meetings would occur immediately after the Sunday Church service. From 1985 until 1992, Mr Tautalanoa kept a record of the people who were Lotu Fehu'i, Akonaki and Malanga who attended quarterly meetings.[43]

61 The first written record of what appears to have been a quarterly meeting took place in late 1985. In the following year the Fellowship adopted the second edition of the Constitution which dealt with quarterly meetings as part of the spiritual activities of the Fellowship. The minutes of an early quarterly meeting describe the meeting as including Lotu Fehu'i, Akonaki and Malanga. The minutes recorded a roll call and listed eight questions to be asked during the meeting, including how people were performing their spiritual duties, whether there were any persons nominated as Malanga or Akonaki and about prospective training for preachers or lay preachers.[44] The next apparent quarterly meeting was on 29 December 1985 and was described as a meeting of the Preachers (Malanga) and was mainly concerned with spiritual issues.[45] The first meeting that the minutes actually described as a quarterly meeting occurred on 29 June 1986 and considered spiritual matters.[46]

62 On 22 October 1989, steps towards incorporation of the Fellowship commenced, with a meeting of members who comprised a 'Board of Trustees', under the second edition of the Constitution, meeting at the Secretary's house. This step was associated with plans for the possible purchase of property.

63 By 30 December 1990, the Board of Trustees with the assistance of a Sydney lawyer had drafted a new Constitution or rules for the Fellowship, in order to satisfy the statutory rules of incorporation.[47]

64 In about 1990, the Free Wesleyan Church of Tonga, which is the main Church in Tonga, gave permission for the Fellowship to use its name in Melbourne and to use its Constitution.[48]

65 On 4 March 1991, the Fellowship became an incorporated association pursuant to the 1981 Act. The Association's 1991 registered Rules stated in relevant parts:

The object of the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA is to promote religion and to uphold christianity and christian teachings and principles of the bible as observed and practised by the Free Wesleyan Church of Tonga.

SECTION 3: MEMBERSHIP

As a religious body, a person who accepts the doctrines of the said Church through baptism within the Church, truly acceptance of Christ and willing to become an active member of the Church, will be eligible to be a member of the Church.

There is no entrance fee or annual subscription to be paid to become a member of the Church.

66 Ms Grima gave evidence that the members did not see, in the sense of were not provided with, a copy of the rules.[49]

67 After incorporation in 1991, the Melbourne Church grew to the three congregations or districts previously mentioned: Sunshine, Werribee and Dandenong. They are governed by a single management committee.

68 The Werribee congregation branched off to establish its own congregation in 1991, as the number of members grew substantially over a short period of time and a number of them lived in the Werribee area. The management committee of the Association favoured purchasing land at Werribee to build a church. At a meeting of the whole congregation of the Association at Sunshine, a majority of the congregation voted in favour of the recommendation.[50] The management committee by a separate vote then decided to proceed with the purchase.[51] In 1994, the Werribee land was purchased for $160,000 of which over $100,000 had to be raised. The church building was erected in 1998 at an approximate cost of $300,000.[52]

69 Class or cell group leaders were instructed to raise funds for the purchase of the Werribee land. Each class group was given a target of approximately $10,000 to raise, although most groups raised more than this.[53] The functions of class groups are described below.

70 I will next consider features or parts of the Church's structure.

71 The management committee, sometimes referred to as the 'steering committee', was responsible for the running of the Church.[54] After incorporation, one committee was responsible for the Association and its three congregations, and it included representatives from each congregation.[55]

72 The Association's rules provided for the composition of the Committee as follows:

SECTION 6: APPOINTMENT OF THE COMMITTEE

(a) The Committee shall consist of a:- Chairperson Secretary Treasurer and such Other Officers as shall be decided by the members of the Church at the Annual Regional Conference.

(b) The office-bearers and other members of the Committee shall be elected ANNUALLY at the Annual Regional Conference of the Church in April each year.

73 Some committee positions were held by direct appointment, such as the Secretary. Other positions, such as the Steward of each congregation, automatically held office on the Committee upon their election to that local position.[56]

74 Office-bearers included Secretary, Treasurer, Chairperson and various other roles as determined from time to time by the Church.[57] These office-bearers were elected by a show of hands at the annual general meeting at Sunshine.[58] Each congregation would appoint its own office-bearers at its own meeting.[59]

75 Under the first and second editions of the Constitution, office-bearers had to be permanent residents or citizens of Australia and a member of the Fellowship with no less than one year's membership, with the first edition requiring that the person be an 'active' member.[60] Voting for office-bearers was by members of at least three months.[61] A General Meeting was to be held once a year and all members were free to attend it,[62] although there was some evidence that it was not held each year.

76 Most of the evidence suggested that only Lotu Fehu'i could stand for election. However, this was not a universal rule, for instance Ms Grima was not a Lotu Fehu'i, when she became Treasurer.

77 The 1986 second edition of the Constitution described the role of the Minister as follows:

5. THE MINISTER

1. His main role is to try and save the spiritual lives of the people that he provides pastoral care to.

2. To attend church activities and to ensure that in all of the Fellowship's work, the Rules and Regulations of the Fellowship must be followed. However, more importantly and beyond all other roles, he must listen and obey the might power and leading of the Holy Spirit.

3. Here are some of his duties:

i. To be the Chair of the Fellowship, but he is allowed to nominate someone else to chair.

ii. To recommend the appointment of a Catechumen or to recommend the demotion/removal of a Catechumen.

iii. To visit members of the Fellowship and provide them with spiritual guidance.

iv. To ensure that the Regulations are followed in the activities of the Fellowship and its congregations, including the sermons, the two Sacraments of the Lord's Last Supper and Baptism, and the conduct of marriage ceremonies and funeral rights.

v. To collate and keep in good order all records pertaining to the Fellowship. In the event that the incumbent Minister is transferred, then the replacement Minister will continue to keep the records. The Minister is also allowed to authorise the Secretary or a Lay Preacher to keep such records on a temporary basis only.

vi. To encourage members of the Fellowship to contact him on a regular basis regarding anything that would help enhance the work of God.

4. Should the Minister show any characteristics which are considered undesirable such as improper behaviour, inability to abide by the Regulations and Constitution, failure to deliver work that is fitting and appropriate by Christian principles and values, then the Meeting of Lay Preachers and Class Leaders shall have the authority to temporarily suspend him until the next General Meeting when a final decision is to be made.

78 The Association's 1991 Rules and Regulations state:

SECTION 2: MINISTER OF RELIGION

The Minister of the Church is the head representative and the chairperson of every meeting. He is responsible to the management of the Church "subject to the advice from the main Conference of the FREE WESLEYAN CHURCH OF TONGA". Moreover, he will organise both the spiritual and social activities of the Church in Australia.

79 The Minister or Secretary of each congregation of the Melbourne Church allocated members into class or cell groups. This occurred once they expressed an interest in becoming an active member of the church. Members of the same family would be placed in the same class group. In the 1980s there was only one class group in the Fellowship. Class groups consisted of about 10 members, who would meet regularly and discuss spiritual matters.[63] They could also discuss and vote on church business referred to them and the class group leaders would then convey their views to the management committee.[64]. Participation in class groups was, or became, a step in the process of obtaining Lotu Fehu'i status. 'Misinale', which was a form of fund raising, was co-ordinated through class groups,[65] with each being given an annual fundraising target, for example the sum of $10,000.00.[66]

80 The Class Leaders' responsibilities included 'to look after the Catechumens assigned to him/her'.[67] The role of Class Leader was outlined in the Fellowship's second Constitution as follows:

1. A Class Leader is to meet with his/her group once a month, to discuss how their Christian lives are progressing. It is also good to provide this support through encouragements and reproach if the latter is useful.

81 Misinale is an annual celebration of the Church, during which churchgoers raise money for the betterment of the Church community. Misinale means 'donation' or 'offering',[68] and has been a core aspect of the Free Wesleyan Church dating back to the time of John and Charles Wesley.[69] The Church holds an annual Misinale feast which celebrates the raising of money for the Church community.[70] The funds raised are essential to the functioning of the Church, for example they have paid for the purchase of new land and the construction of a new church building, and they are the mechanism by which the Church pays the minister's salary, utility bills and other expenses.[71]

82 Annually, the committee sets a Misinale target for each class group to strive to achieve.[72] There was a suggestion from Minister Tu'akoi that each class group would be set a target of approximately $13,000.00 annually.[73] Churchgoers perceived the giving of money as part of Misinale as a commitment to their faith and was given 'because they were part of the Christian family'.[74] There was no formal requirement that churchgoers donate money as part of Misinale, however all would contribute because they 'wanted to give'[75] for 'God's work'.[76] It was mostly agreed that contribution to Misinale was voluntary,[77] but that all churchgoers - Lotu Fehu'i or otherwise - would contribute.[78] The amount contributed by many churchgoers was significant; for example, Ms Moala gave evidence that she had contributed approximately $10,000 in Misinale through her class group,[79] and Ms Kalu gave a similar estimate for her own donations.[80] There was evidence from Mr Tautalanoa and Ms Grima that, had they known they were not members of the Church, they would not have contributed to Misinale.[81]

83 The plaintiffs tendered various financial records of the Fellowship and Association, records which detailed the annual Misinale contributions for each year between 1984 and 2013,[82] including who had donated how much in each of those years. The plaintiffs used these records to arrive at aggregated Misinale contributions for some of the plaintiffs, which are as follows:

(a) $28,450.00 for Mr Tautalanoa;[83]

(b) $11,125.00 for Ms Grima;[84]

(c) $43,000.00 for Mr Ofamo'Oni;[85]

(d) $40,634.00 for Mr Kafoika;[86]

(e) $54,000.00 for Mr Vea;[87]

(f) $38,230.00 for Mrs Tautalanoa;[88]

(g) $35,572.80 for Mr Halahala;[89] and

(h) $40,727.30 for Mr Tanisila.[90]

84 However, it should be noted that the records used to compile the aggregated figures above were missing data for many years. Further, those records do not incorporate amounts donated through the collection bowl handed around during every Sunday's service, nor more voluntary ad-hoc contributions made through the class group leader.[91] Accordingly, the figures stated above may in many cases fall far short of the real amount donated by any plaintiff. That may account for some or all of the differences between the figures above and the donations that some of the plaintiffs described themselves as having made. As taken from the plaintiffs' outlines of evidence for each plaintiff (unless otherwise cited), those amounts are as follows:

(a) Excess of $15,000.00 for Apikale Fa;

(b) Approximately $20,00.00 for Ofa Falepaini;

(c) Excess of $18,200.00 for Ana Finau;

(d) Approximately $10,000.00 for Christine Moala;

(e) Excess of $12,000.00 for Vai Paua;

(f) Excess of $10,000.00 for Seneti Taufa;

(g) Excess of $100,000.00 for Fisi'iahi Tu'ulakitau

(h) Excess of $40,000.00 for Tuia Vea;

(i) Approximately $44,000.00 for Fohe Tautalanoa;[92]

(j) Approximately 189,100.00 for Ana Grima;[93]

(k) Excess of $70,000.00 for Pita Ofamo'oni

(l) Approximately 80,000.00 for Tevita Kafoika;

(m) Excess of $50,000.00 by Sione Halahala; and

(n) Approximately $45,000.00 for Silatolu Taunisila.

85 As I understood it, the defendant did not admit these amounts, however I do find that a number of the plaintiffs made significant financial contributions to the Fellowship, Church and Association through Misinale and otherwise. Nothing turns on the precise amount of such contributions.

86 Some evidence suggested that, although contribution was not technically required, there was a stigma associated with individuals who did not contribute, and class groups who did not achieve the prescribed target. The amount each person or family contributed was public knowledge.[94] There was evidence that there was lots of 'put down' for class groups who did not realise the target.[95] As Ms Moala stated:

The Misinale is by no means a voluntary matter. There is such a stigma associated with it if you do not put in, because then not only have you failed your cell group, but then you are left in a situation where you would have to then try to seek out a way to make those funds.[96]

To illustrate this point, Ms Moala stated that she had once loaned money to another churchgoer who could not afford to contribute so that the churchgoer could have a contribution recorded under her name and avoid stigmatisation.[97]

87 Since the commencement of the dispute in 2014, the Werribee Church has not participated in the Association's Misinale, because a key aspect of Misinale is that part of the money raised by each Church congregation would be centrally held by the Association.[98] Instead, the Werribee Church has raised sufficient money itself through donations not technically classed 'Misinale', but made through a similar process.[99] This money has been used to support the Werribee Church and to fund the litigation.[100]

88 The first key issue to address is the question of what membership rule governed the admission of members to the Fellowship. The defendant, without, as I understood it, disagreement from the plaintiffs identified the specific membership issues for determination as follows. First, whether twelve plaintiffs, being the paragraph 10 plaintiffs, were founding members. In order to resolve this issue, the Court must determine what the membership rules of the Fellowship were and then, by applying those rules, determine whether the twelve paragraph 10 plaintiffs were members of the Fellowship at the incorporation date. Secondly, the question of the membership of the disputed founding members, who were the paragraph 12 plaintiffs, and thirdly the membership of the post incorporation and estoppel plaintiffs, who were the paragraph 13 plaintiffs.

89 It was common ground that the Fellowship's Constitution contained no provision dealing with the form of nomination for membership and no provision identifying by whom that nomination must be considered. The plaintiffs relied on the terms of the membership rule in the Constitutions, but also pleaded other matters such as baptism, being welcomed into the Church by the Minister in open congregation and participation in the life of the Church through assignment to cell groups, involvement in fundraising, engagement in pastoral care, attending Church services and being active in the congregation.

90 The defendant's case was that a person had to have attained the status of Lotu Fehu'i in order to be a member of the Fellowship.

91 The plaintiffs' final statement of claim, the seventh further amended statement of claim, identified people who they say are founding members and listed additional founding members whose status is disputed by the defendant. It also pleads the terms of the 1986 Constitution membership rule. The plaintiffs allege that the Fellowship did not maintain a Register Book as required under rule 3 of the Constitution. They then plead that:

At the time of the incorporation of the Defendant, the Plaintiffs assert that the admitted founding members and the disputed founding members were persons who had been baptised and were practising members of the fellowship and were entitled to membership of the Church.[101]

92 The plaintiffs also alleged that between October 2014 and June 2015, the defendant determined that a number of the plaintiffs had ceased, or were not otherwise considered to be members of the Church by reference to whether they had submitted a written application for membership, which had been approved by any membership committee and thereafter ceased to provide them with notices of meetings of the Church. These allegations were not developed and do not appear to require separate consideration.

93 The plaintiffs submitted that, in interpreting the Constitution, allowance should be made for the fact that associations like the Fellowship are not profit making organisations and that their rules are often drafted in an 'ad hoc and piecemeal fashion by lay persons rather than lawyers, couched in terms intelligible to them but which often lacked consistency, coherence, form and drafting which would be expected in a statute or commercial contract'.[102]

94 They also submitted that, where the rules of an unincorporated association are silent about the means of applying for membership, the question of whether a person has become a member is a question of fact. That question was to be answered by whether the person's actions had made known to the association that he or she intended to be bound by its rules, including by attending members' meetings and taking part in its business, exercising members' privileges, paying subscriptions or expressly accepting membership by notice to the association or an officer.[103] In this case, the plaintiffs pleaded that they had either been accepted as founding members or had been baptised into the Church, been welcomed into the Church in open congregation, participated in the life of the Church by being assigned to cell groups, been involved in fundraising for the Church, engaged in pastoral care and were active in the congregation and had never resigned.

95 It was also argued that membership of the Fellowship was recognised once a person's name was registered in the Fellowship's Registry Book, which they contended was contained in Exhibit Y. This book was not the Roll Book that was used for quarterly meetings, which only recorded the attendances of Lotu Fehu'i, Akonaki and Malanga. Thus an important issue in the plaintiffs' case was whether Exhibit Y was the Registry Book and the consequences if it was proved not to be so, and the Registry Book with the names of the plaintiffs recorded in it was not otherwise in evidence. The plaintiffs argued that membership of the Fellowship was not restricted to people who had attained the status of Lotu Fehu'i.

96 The defendant's pleadings as to the Fellowship's membership rule were contained at paragraph 10(b) of its defence to the seventh further amended statement of claim, which stated

At all material times up until the Association's incorporation on 4 March 1991, the applicable rule governing admission to membership of the Fellowship was as follows:

(i) Membership of the Fellowship was customarily termed "Lotu Fehu'i ", the same term as was used to designate membership in the Constitution of the Free Wesleyan Church of Tonga in Tonga;

(ii) To become "Lotu Fehu'i" in the Fellowship, an applicant (Applicant) was required to give a verbal commitment to the members present at a special meeting of the Fellowship held once every quarter (Fellowship Quarterly Meeting), to the effect that the Applicant would accept the responsibilities attending a Lotu Fehu'i and was ready and worthy to become a member of the Fellowship were such membership to be conferred; and

(iii) The Applicant was then considered for Lotu Fehu'i by the minister and those present at the Fellowship Quarterly Meeting at which the commitment was given, following which the minister would, on behalf of the members, either accept or not accept the Applicant as a Lotu Fehu'i (i.e. a confirmed member).

97 The defendant's case was that members of the Fellowship were those persons who had become Lotu Fehu'i under the Testimony rule and were confirmed members and were entitled to vote on decisions effecting the organisation. This was the Fellowship's clear rule of custom and practice concerning admission to membership. Merely attending church services did not make a person a member of the Fellowship.

98 A prospective member of the Fellowship had to assume the responsibilities of a Lotu Fehu'i by giving a verbal commitment, including giving testimony to the confirmed members present at a quarterly meeting of the Fellowship, and be accepted by the members at that meeting. If the Fellowship did not recognise a person as having the right to vote at quarterly meetings the person was not a member.

99 The defendant submitted that the rules were silent as to what a person must do in order to have their name included in the Registry Book and more generally as to what a person had to do in order to be admitted as a member. It also argued that membership could only be obtained through a contractual process that conferred membership rights including the right to vote. It argued that the Fellowship, as a voluntary association, was bound together by a consensual compact and the rights of its members inter se depended entirely on the terms and conditions of that compact or contact. The defendant emphasised that, although the term 'member' was not defined in the Constitution, the Court should not be distracted by its meaning, which could be understood from the fact only members had certain rights, including: to vote for the election of office-bearers (clause 4(iii)); to hold office (clause 4(ii)); and to attend, and by implication vote at, the General Meeting (clause 3(2)(ii) and (iii)).

100 The defendant contended that the Fellowship's founding members at the point of incorporation were those persons recorded in the minutes of quarterly meetings as having become Lotu Fehu'i prior to incorporation and who were not recorded as having ceased to be so prior to incorporation or who had not left the Fellowship. A person's membership would terminate if the voting rights were removed if they breached the behavioural guidelines of the Tongan Church or if they left the congregation, for example, to move to another church or to move interstate. This approach made the identification of members straight forward, as the records, maintained by the Fellowship since at least 1986, especially the minutes of quarterly meetings, identified the people who were Lotu Fehu'i at any given time.

101 The parties' membership rule cases raise separate issues. In the case of the plaintiffs, the issue of whether Exhibit Y should be accepted as the Registry Book and the consequences if the plaintiffs could not prove that their names were recorded in a Registry Book, the issue which I will determine next. In the case of the defendant there is the question of the Lotu Fehu'i custom and practice, which involves a number of sub issues, which I will determine thereafter.

102 Exhibit Y is a handwritten journal or record book mainly in English in writing that Mr Wall said he had been informed was Minister Vaotangi's. It records details of many people who appear to have been associated with the Fellowship, the Association or more broadly the Church, apparently from December 1983, which was a month before the first edition of the Constitution was adopted. It contains persons' names and signatures and details of events occurring up until at least 2005. At the top of the second page the following words are written, although the first and last words in Tongan may have letters cut off by the process of photocopying:

INA TONGA 'o FAKATATAU KIE FIEMA'U 'AE KUPU 3 KUPU ['OE KONISITUTONE][104]

Fellowship Registration of Members as required by Section 3* of the Constitution.

103 The book records events such as births, deaths, marriages, people arriving, people leaving, people ceasing to be active in the church, people discontinuing their involvement with the church, people changing churches, dates of birth and ages and in a few cases criminal charges or convictions. It changes format on about the 22nd page, but still in many instances records personal details of people. It does contain what appears to be different handwritings. Some names recorded in the book have been crossed through, apparently when the person named had left the congregation, including by moving to a different location.

104 The existence of Exhibit Y became apparent in the evidence of Mr Wall, given near the end of the defendant's case. He had assisted the defendant compile a membership list. He explained that 'I made a further search of all documents relating to the Fellowship before incorporation and located a book showing the handwriting of the then Minister of the Fellowship.'[105] Exhibit Y was tendered by the plaintiffs during cross-examination of Mr Wall.[106] He gave evidence regarding his compilation of membership registers. His evidence explained that, in creating a list of members, he had regard to documents from the Fellowship period; principally minutes of meetings, the list of voting members of the Fellowship kept by the secretary and all quarterly meetings of members and also Exhibit Y.[107]

105 Mr Wall said that the current Minister advised him that Exhibit Y contained the previous Minister Vaotangi's handwriting.[108] He stated:

This document records the names of persons who attended the church but includes some persons who had never applied to become members and whose names were not included in the names of persons approved for membership in the minutes.

...The main source document were the minutes and this was compared against the minutes.

...The minutes record who and when someone was anointed as Lotu Fehu'i.[109]

106 Mr Wall gave evidence that he was told that the Register was kept by the then Minister of the Fellowship, Mr Vaotangi.[110] He was first unable to say whether it contained the names of non-Lotu Fehu'i, as the plaintiffs contended.[111] However, counsel for the plaintiffs pointed out that, in his written outline of evidence, he admitted that the document recorded the names of people who had attended the church but who had not applied to become members and whose names were not included in the names of persons approved for membership in the minutes.[112]

107 As mentioned, both editions of the Fellowship's Constitution refer in their membership rule to a Registration Book or Registry Book.

108 The plaintiffs argued that Exhibit Y was the 'Registration'/'Registry' book referred to in the Fellowship's Constitutions, and importantly, that the list contained the names of people who were not Lotu Fehu'i, Akonaki or Malanga. They relied upon this argument to disprove the defendant's principal submission: that to have your name entered into the Registry Book you had to have attained Lotu Fehu'i status.

109 The defendant denied that Exhibit Y was the Registry Book contemplated by section 3 of the Constitution and instead contended that the quarterly meeting roll kept by the Secretary served that purpose. It also criticised the plaintiffs' tendering of the document so late in the trial. It also objected to the admission of Exhibit Y because Mr Wall was not present, nor a part of the Fellowship community, during the period in which the document was created.[113] It also argued that the plaintiffs had had ample opportunity to tender the document earlier and question its own witnesses on its use, as they may have been able to give evidence about its provenance.

110 Other witnesses gave evidence relevant to the significance of Exhibit Y. The defendant's witness**,** Ms Sokopeti Latu Palavi**,** appears to have her name listed on Exhibit Y. When questioned by counsel for the plaintiffs, she gave evidence that the signature accompanying her name looked like her own, though she could not remember signing the document.[114] Her name was entered on 6 October 1985; she gave evidence that she joined the congregation in 1984 and become Lotu Fehu'i sometime between then and 1987. Her evidence provides some support for a conclusion that Exhibit Y was a membership register listing the names of people who were not Lotu Fehu'i.

111 Mr Halahala, the plaintiffs' witness, also gave evidence that he was entered in the register of members - Exhibit Y - in 1985 upon joining the Church, despite not becoming Lotu Fehu'i until after the incorporation of the Association.[115]

112 Due to the late tendering of the Exhibit, no other witnesses, particularly those active during the Fellowship period, were asked about the document and its provenance.

113 As previously mentioned, there was another document being the Roll Book from Minute Book 1985 to 1992,[116] which contained a list of names and records the attendance of those named at quarterly meetings. Mr Tautalanoa, the Fellowship's original secretary, gave evidence that he kept this record and that it was in his own handwriting. His evidence was that the roll comprised only people who were Lotu Fehu'i, Akonaki or Malanga in the Fellowship at the time.[117]

114 The plaintiffs argued that the Fellowship's membership rule required that persons' names had to be added to the Registry Book. They argued that Exhibit Y was the Registry Book referred to in section 3(i) of the Constitution. They relied upon the evidence of Mr Wall and Mr Halahala, outlined above, in support of this submission.

115 The plaintiffs disputed the suggestion that Mr Tautalanoa's handwritten roll/register was the Registry Book required by the Fellowship's Constitution. Their case was that the purpose of that document was to record those who attained Lotu Fehu'i status, and was entirely different from the Registry Book required by section 3(i). In support of this submission the plaintiffs relied upon Chapter 4 of the second edition of the Constitution, which stated that:

Chapter 4: Spiritual Responsibilities

1. The Catechumens (Lotu Fehu'i)

1. A member of the Catechumens is one whose name is listed in the roll for the Class list of the Catechumens or the Fellowship.

116 The plaintiffs argued that Mr Tautalanoa's roll was the one contemplated by this provision, which was mentioned in the chapter dealing with 'Spiritual Responsibilities', whereas the Registry Book was mentioned in the chapter pertaining to 'Members'. Two lists existed, and in their submission, Exhibit Y was that which was the key to membership.

117 As mentioned, the defendant strongly opposed the plaintiffs' tendering of Exhibit Y and their related submissions. It did so on four principal bases: that it was contrary to the plaintiffs' pleaded case, that the late tendering of the document led to it being untested and its provenance unknown, that the document did not speak for itself and the existence of the quarterly meeting roll.

118 Paragraph 8 of the plaintiffs' seventh further amended statement of claim stated that 'the fellowship did not maintain a membership book, or at least not one as required by clause 3'. The defendant submitted that in light of this, the plaintiffs' late change of argument was not supported by their pleadings and ought not to be accepted.

119 The defendant also attacked the timing of the plaintiffs' tender of Exhibit Y, which occurred when the plaintiffs were cross-examining one of the defendant's final witnesses. The plaintiffs had closed their case and many of their witnesses had been part of the Fellowship and may have been able to give evidence about the provenance and legitimacy of Exhibit Y, but were not asked about it. It appears that the defendant may have discovered the document or provided it to the plaintiffs late in the litigation, and the plaintiffs may have taken time to notice its potential relevance. The defendant argued that the fact that the plaintiffs left it to the second last day of evidence to tender the document meant that its relevance or reliability could not be tested and the Court could not place weight on it. The document could not speak for itself. It contained multiple sets of handwriting and the same names were listed in more than place in the document for no apparent reason. There was no evidence to support a conclusion that Exhibit Y was the membership register.

120 Finally, the defendant argued that the existence of Mr Tautalanoa's register/roll of Lotu Fehu'i disproved the plaintiffs' claim that Exhibit Y was the s 3(i) Membership Register. Mr Tautalanoa's roll contained the list of Lotu Fehu'i, who were the members of the Fellowship and the Association.

121 Exhibit Y has many features that suggest that it is the Registry Book required by the Fellowship Rules. However, while the Court can draw inferences from the text and form of the document, I am unable to conclude on the case presented by the plaintiffs, that it is the Registry Book as required by the rules. They pleaded that there was no Registry Book and that there was no direct evidence that there was one. The defendant was not given notice that it was to meet a case that Exhibit Y was the Registry Book. I admitted it as evidence because Mr Wall had referred to it, but the document cannot speak for itself.

122 Because of the plaintiffs' pleadings, the manner in which the plaintiffs presented their case and the lack of direct evidence of the origins of Exhibit Y, I am unable to find, at least for the purposes of the issues argued, that it is the Registry Book referred to in the Constitution.

123 As I have found that the plaintiffs have not proved that Exhibit Y was the Registry Book, the consequences that follow from this finding have to be considered. One question arising is whether the absence of evidence that a Registry Book of members was kept means that, at the incorporation date, the Fellowship had no members other than the founding members. Does the plaintiffs' failure to prove that their names were recorded in a Registry Book mean that they were not a member, regardless of other circumstances such as their active involvement in the Fellowship? I received no, or very limited, submissions about that issue.

124 These issues require examining the text of the membership rule, which stated in its second edition:

1. Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.
2. If any member or members disagree with a decision made by the General Meeting that causes them to be in absentia or being critical in an adverse manner, the General Meeting has the authority to suspend them with their names removed from the Registry Book provided that the vote is passed by a two thirds (2/3) majority.
3. Those whose names have been removed from the Registry Book will no longer be part of the Fellowship and they will have no entitlements to assets, finances or any other goods.

125 The following features of the text of the membership rule are significant in determining the consequence of the plaintiffs not proving that their names were recorded in the Registry Book. First, the obligation to record members' names is expressed as 'provided their names are registered in the Fellowship's Registration Book' (first edition of the Constitution) and 'but names must be registered and listed in the Registry Book' (second edition of the Constitution). Those words leave unclear whether the listing of a person's name in the Book is a condition of membership. On one view, the words impose a requirement for the recording of membership already conferred, rather than a pre-condition for obtaining membership.

126 In my opinion, the failure to record persons' names as members did not by itself prevent them from becoming members. If such a failure occurred, it was not their fault that the Fellowship did not do what the Constitution required it to do. There are four reasons for that conclusion.

127 First, the recording of a person's name in the Registry Book was an obligation owed by the Fellowship, acting through the Minister or relevant officers, to the new member and to the other members of the Fellowship. It is not expressed as essential to membership. The decision in Tiao v Lai (No 2)[118], a decision of the Western Australian Court of Appeal to which the defendant referred, was an instance in which the conditions for membership of the particular religious centre were essential preliminaries for membership. In that case, the Association's membership rule provided that anyone who had attained the age of 18, was baptised at the centre and paid a subscription fee of $10 was eligible to be a member. Applications for membership had to be in writing, and the Board had the sole right to approve or reject any person who applied to be a member without giving reasons in the case of rejection.

128 Secondly, while rule 3(iii) makes it clear that removal of the name from the Registry Book pursuant to rule 3(i) means that the person whose name is removed will cease to be a member, it does not follow that to be a member a person's name has to appear in the Registry Book. The operative act to suspend membership is the two thirds vote of the general meeting and the subsequent removal of a name from the Register Book records that act.

129 Thirdly, a prospective member does not have the power to ensure that their name is listed in the Registry Book, let alone to ensure that such a book exists and is accurately maintained. To penalise a prospective member by denying them membership because of the Fellowship's failure to maintain a Registry Book would be unreasonable. That consideration has 'consistently been viewed as weighing against a conclusion of invalidity' when statutory provisions have not been observed.[119]

130 Fourthly, the link between membership and the listing of a name in the Registry Book was, if anything, more prescriptive in the first edition of the Constitution, where the membership rule stated:

Membership is free for all people, provided their names are registered in the Fellowship's Registration Book.

131 The Fellowship rules are not to be scrutinised like provisions in an Act of Parliament. Given that established custom and usage can form part of the rules of an association, as the defendant argued, the custom and practice can also guide as to the consequences of failing to comply with the written rules such as recording names of members in a Registry Book. There is no evidence that the Fellowship or its Minister or managing committee considered that a person was not a member because their name was not recorded in the Registry Book, although they otherwise qualified. Indeed, no great attention appears to have been paid to the existence or otherwise of such a Registry Book.

132 The Fellowship was founded in 1978 and did not have a written Constitution and rules or any requirement for a Registry Book at the time. Even after the first and second editions of the Constitution were adopted, the custom and practice of the Fellowship was to treat people as members regardless of whether their names were written in a Registry Book. There was no written form for membership applications. A person transferring from another associated church could obtain membership of the Fellowship by giving it a Minister's letter from a previous church. Those matters suggest that recording a person's name in the Registry Book was not a precondition to membership. If it were otherwise, a person who wished to become a member and who otherwise satisfied membership qualifications would be prevented from achieving that aim by the Minister or office-bearer's failure to record their name in a Registry Book, a step that was beyond their control.

133 Finally, for the sake of completeness, I refer to the principles of general application that in determining the effect of a failure to comply with a rule, whether statutory or otherwise, the purpose of the rule and the effect of it on intended beneficiaries are important. Guidance in resolving the consequences of such failure can be found in the principles discussed in cases such as Project Blue Sky Inc v Australian Broadcasting Authority.[120] The principles point away from invalidity, especially where those affected by the non-compliance were neither responsible for nor aware of the non-compliance,[121] or where that non-compliance was with a rule that was not expressed as an 'essential preliminary'.[122]

134 I therefore consider that the plaintiffs' case does not fail because of their failure to prove that their names were recorded in a Registry Book.

135 As mentioned, the Association relied on what it argued was the Fellowship's custom and practice in support of its case as to the membership rule. Because the written Constitution of the Fellowship and the rules of the Association did not contain a membership rule requiring a member to have attained Lotu Fehu'i status, the defendant sought to invoke the custom and practice of the Fellowship as establishing that matter as a requirement of membership. It submitted that the Lotu Fehu'i requirement was a long standing custom and practice, that had existed in the Fellowship since at least 1986 and existed in the Church in Tonga.

136 The defendant emphasised that it did not rely on custom and practice by way of implying terms into written rules, but as containing a primary source of the rules. It submitted that the compact between members may be embodied in one instrument as well as in unwritten practices or usages which may be incorporated in, or considered with, the written word of constitutions and rules. The Fellowship's customs and practices did not conflict with the terms of the Fellowship's written rules, but gave effect to them.

137 To support this reliance on custom and practice, it referred to the High Court judgment in Macqueen v Frackelton,[123] concerning the Presbyterian Church in Queensland, where Griffith CJ referring to the judgment of the Supreme Court under appeal, endorsed the view that:

[T]he Presbyterian Church, like any other religious body in Australia, is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or consensual compact to which they are parties.

138 The Church's case was that the respondent minister's issue of the writ against it, challenging his removal from his post as a minister of a Brisbane church, was a breach of his vow taken on his induction as a minister and an act of insubordination against the authority of the Church and justified its decision to suspend him from office, which dissolved the pastoral tie and meant he was no longer entitled to his ministerial emoluments. The High Court held that the issue of a writ against the Church was not a breach by the minister of the compact because that action did not fall within the express words of the document embodying the compact and the asserted term could not be read into the compact by any necessary implication. Griffith CJ, stated that:

...the issue of the writ in the first action was not a breach of the compact entered into by the plaintiff. It does not fall within the express words of the documents embodying the compact and, in my judgment, the asserted term cannot be read into the compact by any necessary implication.[124]

139 O'Connor J reached the same conclusion.[125] Isaacs J, dissenting as to the effect of the Minister's issue of the writ, stated that the contract that bound a member of the Church might take many forms:

... that in the ascertainment and enforcement of rights and liabilities among its members, a Church is regarded by the law in precisely the same light as any other society of men who have entered into association for lawful purposes. Whether the objects be sacred or secular, whether for friendly, literary, scientific, or religious purposes the social compact is at once the source and the measure of the rights of those who compose the body. It is a pure question of contract, and contracts of this nature must be construed by the same methods as those by which all other contracts are interpreted. It may take various forms, it may be embodied in one instrument like a Constitution, or in many; these instruments if more than one may have varying importance, there may with the express written word be incorporated usages or unwritten practices, but these circumstances are incidental to all agreements, and when once the terms of the compact are collected, interpretation on ordinary lines follows, and determines the legal relations of the parties.[126]

140 To similar effect in Lewis v Heffer,[127] Lord Denning MR speaking of a branch of a political party stated:

In a body like this, rules are constantly being added to, or supplemented by, practice or usage: and, once accepted, become as effective as if actually written.[128]

141 Ormrod LJ, in the same case, said that a practice must be established, well known and unquestioned for it to form part of the terms and conditions that were accepted by persons joining the association.[129]

142 The defendant also relied on the statement by White J in Dobrijevic v Free Serbian Orthodox Church, Diocese of Australia and New Zealand Property Trust[130] that:

Where an incorporated association adopts practices which are inconsistent with the provisions of their rules or constitutions, especially where those practices are adopted over an extended period, those practices may become part of the terms and conditions of the rules governing the association.

The plaintiffs' response to the defendant's custom and practice submission

143 The plaintiffs disputed that there was any custom and practice requiring that a person wishing to become a member have attained the status of Lotu Fehu'i. They noted that the defendant had not identified when in the life of the Fellowship it contended that such custom and practice commenced, bearing in mind that the first and second editions of the Constitution did not mention it. They argued that a custom or practice could not be relied on if it was contrary to the express terms of a written agreement or compact or, in this instance, a Constitution.

144 During the Fellowship years the names of members had to be listed in the Registry Book, but there was no requirement that the persons be Lotu Fehu'i, as persons possessing that status were only a fraction of the congregations who attended the Fellowship's services.

145 Becoming Lotu Fehu'i required the person to give an undertaking to adhere to standards of conduct and was a spiritual step in a person's development within the Church. Attaining Lotu Fehu'i status imposed restrictions on a person's behaviour; they could no longer consume alcohol, go dancing, gamble or have pre-marital sexual relations. Many long standing participants in Fellowship activities and financial contributors did not want to become Lotu Fehu'i. Some did not feel equipped to carry out the duties and some did not want to be constrained by the standards of conduct required.

146 Thus, in cross-examination, Ms Grima outlined why young members of the Church were often hesitant to commit to the 'boundaries' required of a Lotu Fehu'i:

...once you step as a Lotu Fehu'i, your youth freedom is not there because if I want to go for dancing, like what is disco in our days, I'm not allowed to go disco.

...

That is why young person doesn't go to Lotu Fehu'i. They want to enjoy their life first before they go Lotu Fehu'i.[131]

Ms Grima further explained that older people were similarly deterred due to an inability to fulfil the function. As she explained:

Some old people, they don't want to become a Lotu Fehu'i [for] some other reason - they can't read. Because once you Lotu Fehu'i, as you start, they will start to give you steps. You talk in front of the church. They can give you Bible to read in the service. They ask you to do a little activity in front of the service, but some old people, they couldn't read, so they don't - it's not because they don't want to become a Lotu Fehu'i because of freedom, some of them because they can't do that duty, but they good people.[132]

147 The plaintiffs noted that the defendant's witnesses had been unable to identify the rule in the Tongan Constitution that provided that only Lotu Fehu'i could vote in church meetings in Tonga. The concept of membership sat uneasily within the structure of the Tongan Church in Tonga because it is a church and not an association. The Tongan people do not think in terms of membership of a church. Customs associated with the Tongan Church Constitution, such as the requirement for an office-bearer to be Lotu Fehu'i, were not applied exactly or at all by the Fellowship.

Evidence relevant to the existence of the custom and practice

148 To decide whether the defendant's custom and practice argument that Lotu Fehu'i status was required to become a member has been established, I must first describe the process by which a person became Lotu Fehu'i. There was no significant dispute in the evidence or submissions about this issue.

149 The provisions of the second edition of the Constitution contains a section entitled 'The Catechumens[133] (Lotu Fehu'i)' which states:

The class for Catechumens is open to anyone who wants the truth about Godly life and who participates in the meetings to share and have discussions with his/her fellow peers. A Leader for each grouping (class) will be appointed to lead the group.

...

Should any person wish to become a Catechumen, he/she should approach the Secretary or the Minister to indicate his/her desire to aspire to a Christian life by obeying all the rules and regulations of the Fellowship will be appointed a trainee for one month. He/She will be confirmed as a Catechumen if his character and conduct is assessed as satisfactory by the Minister.

It is right for a person achieving the Catechumen status to abide by and be present during church activities such as sermons, Lord's Last Supper and church meetings. Catechumens should also be devoted to the daily reading of the Holy Scriptures, silent prayers and mediation, as well as family prayers.

150 The evidence suggested that Lotu Fehu'i are persons who, through a process of giving testimony to their Church congregation, have given a commitment to accept Christ and abide by the rules and regulations of the Church. The status of Lotu Fehu'i is the first rung of official positions in the Tongan Church. The same process of becoming Lotu Fehu'i applied both during the Fellowship years and thereafter as part of the Association.

151 A person who attended church services or activities who wished formal involvement in the life of the Church was first allocated to a class group. As Mr Fohe Tautalanoa described, when a new person was welcomed at the Church, he would interview them and then place them in a class group. They would then be introduced to the congregation.[134] If subsequently they wished to attain Lotu Fehu'i status, they would inform their class group leader and seek the group's support for their name to be placed before the congregation for consideration.[135] They could then be questioned about their life and their intention to become Lotu Fehu'i.[136]

152 At every quarterly meeting the Minister would ask the Steward if there were any persons ready to become Lotu Fehu'i and he would state the names of the persons concerned. The candidate would then be asked for their commitment in the testimony process or rule in which they agreed to comply with the teachings and rules of the Church and not act inconsistently with them. The congregation would then vote on whether to accept the person as a Lotu Fehu'i.[137] As the Church grew into three congregations in the years after incorporation, if a person applying to become Lotu Fehu'i was accepted by their local or district congregation, all congregations or districts of the church would then vote at the next quarterly meeting on whether they should be made a Lotu Fehu'i.

Could only Lotu Fehu'i to vote at quarterly and other meetings and for the election of office-bearers?

153 The defendant's custom and practice argument placed particular reliance on the right of those persons who had attained Lotu Fehu'i status to vote at quarterly and other meetings of the Fellowship, to vote to elect office-bearers and to stand for office. Its submission was that Lotu Fehu'i possessed certain rights associated with being members, rights that persons who were not Lotu Fehu'i did not have. Because of the detail of these submissions and the evidence associated with them, it is appropriate to consider them separately before turning to the remainder of the parties' submissions about the membership rule.

154 The first edition of the Constitution contained no reference to quarterly meetings, but provided for a yearly general meeting of the Fellowship, which all members could attend. As mentioned, it provided that a person had to be an active member of the Fellowship for three months before being eligible to vote for the election of office-bearers.

155 The 1986 second edition of the Constitution contained a similar requirement in respect of the annual general meeting. It provided that no person was allowed to vote at such a meeting unless they had been a member for three months. There was some evidence suggesting that annual meetings were not always held during the Fellowship years.[138]

156 The 1986 Constitution also contained chapter 4, which dealt with spiritual responsibilities. Rule 6 of chapter 4 is headed 'The meeting of lay preachers and class leaders', and states in sub-rule 1 that:

1. The meeting of Lay Preachers and Class Leaders will meet one every Quarter (March, June, September and December), at a venue to be decided by them
2. The Minister will Chair but it is within his powers to nominate a person to replace him.
3. It shall be possible for the meeting to be held separately for Lay Preachers and for Class Leaders should they wish to do so.

4. Do we have any nominations for Class Leaders?

5. Do we have any nominations for trainee Lay Preachers?

1. Do we have any trainee Lay Preachers being nominated as Confirmed Lay Preachers?
2. Do we have any Lay Preachers or Class Leaders from outside our Fellowship that needs to be admitted as our own?

8. These are the questions to be raised at the Meeting:

1. Those present at this meeting? Any apologies?
2. How are the Lay Preachers and Class Leaders and their Christian living? Their names will be called out individually to respond to the following:

1. To update one's own journey as a Christian abiding by Christian principles and values. 2. Does he/she witnesses to others in accordance with Christian beliefs?

1. Do you abide by the Regulations and accept responsibilities assigned to you?

1. Do you feel that you are suitable for the position of a Lay Preacher or Class Leader?

1. Do we have any Lay Preachers or Class Leaders that have moved out of our congregation?
2. Do we have any advice regarding the subjects and assessment of sermons for Lay Preachers?

11. What shall we do to improve and enhance our current service delivery?

1. Do we have any Lay Preachers or Class Leaders that have died during this Quarter?

13. What is the date and venue for the next meeting?

157 An important feature of the Association's case was that the quarterly church meetings were primarily for Lotu Fehu'i, Akonaki and Malanga and that only they could vote at them. They occurred immediately after Sunday church services, which services commenced at 2.00 pm and ran for one to two hours. The quarterly meetings then commenced, with the preacher or person who had delivered the sermon at the service, who was usually the Minister or a Malanga, moving from the pulpit to a table in the church to conduct the meeting.[139]

158 Mr Fohe Tautalanoa, the Fellowship's first Secretary, gave evidence that only Lotu Fehu'i, Akonaki and Malanga could vote at quarterly meetings, that this practice was well established and that their names were recorded in the roll book that was used at every Fellowship meeting.[140] He said that as Secretary he kept a roll book of the attendance at quarterly meetings of all persons in the Fellowship who were Lotu Fehu'i, Malanga or Akonaki.[141] But he also said that there were other people who were present whose names were not in the roll book.[142] While the meeting was primarily for persons who were Lotu Fehu'i, Malanga or Akonaki, other people who had come for the Sunday service remained during it.

159 Thus Ms Grima said that while quarterly meetings were only for Lotu Fehu'i, Malanga and Akonaki, they included all representatives of class groups and people who were not Lotu Fehu'i also attended. Voting at meetings was by show of hands and if you put your hand up to vote your vote would be counted, as the Secretary would not know who had Lotu Fehu'i status.[143]

160 Mr Tevita Kafoika, a member since 1985, gave evidence that he performed the role of steward at the quarterly meetings of the Werribee congregation from time to time and that although only confirmed members were supposed to vote, 'most of the people' at the meetings voted, whether confirmed or non-confirmed.[144] He said that on occasions the current Minister, Mr Tu'akoi, would announce that only confirmed members could vote and that the former Minister, Mr Vaotangi, sometimes made similar remarks.[145] He also said that:

The system, I'm saying is the system where it's just the confirmed member to show their hand. But normally it's meeting after the church service and everybody are in there and they don't separate the confirmed and non-confirmed and everybody puts their hands up.

161 Since the Association's incorporation, the Melbourne Church has grown to three congregations: Sunshine, Werribee and Dandenong, each of which holds its own congregational or district quarterly meetings. Thus, on the first Sunday of the month Werribee might hold its meeting, and the next Sunday Sunshine, and Dandenong would also hold a separate meeting. Then, perhaps on the third Sunday of the month, the quarterly meeting of the combined congregations of the Church would be held.[146] Sunshine Church is now the venue for the combined quarterly meeting because it has room for more people.

162 Mr Tu'akoi commenced as Minister in 2010 but had been attending services since 1993, and he described the conduct of quarterly meetings in the following terms:

the Melbourne Church has three branches, Sunshine, Werribee and Dandenong. Each branch holds services on Sundays and Wednesdays, and holds a local meeting every quarter. Each branch has its own treasurer, secretary and steward. The three branches are governed by a single management committee. The whole church comes together for services once each month, and for quarterly meetings of the whole church. It is at committee meetings, and at quarterly meetings of the whole church, that decisions regarding the administration of the church are made.[147]

163 Mr Pita Ofamo'oni, who served as secretary and assistant secretary of the Association, said that the quarterly meeting was only for confirmed members - Lotu Fehu'i, Malanga and Lay Preachers.[148] But members of the congregation, who had attended the service remained for the quarterly meeting and it was difficult to identify who was confirmed and who was not.[149] Confirmed members were the only ones supposed to be allowed to put up their hands at the meeting and he kept a record of those who attended the quarterly meetings.[150] He gave evidence of the connection between the Sunday Church service and the quarterly meeting in the following terms:

All members of the church are present at the quarterly meetings, both congregational and three congregational meetings, to which if there is a need for a vote, all I count is the largest showing of hands that is in the church building, there is no such a process that would document each individuals and their vote, and there never has been as there was no need for this, as the members would have been present for church service on a Sunday and following the service would remain to carry out the Quarterly meeting.[151]

164 He said that as Secretary, he would count every hand raised to vote on whether a person could become Lotu Fehu'i. It was possible for the non-confirmed members to raise their hands and he would not know whether they were confirmed or not.[152]

165 A roll call often occurred at the commencement of each quarterly meeting, at least from the creation of the roll book in 1985, with only the names of 'confirmed' members, or those who had attained Lotu Fehu'i status or above, being called.[153] Minister Tu'akoi said that at the start of each quarterly meeting he always said words to the effect that, 'Any person can sit and listen. If you are not Lotu Fehu'i, you cannot vote.'[154] He followed his father's example in this respect as his father had been a Minister in Tonga. He used a template of questions as chairperson of the quarterly meeting, namely:

Who is here with us?

How are the Kaoasi'aho (Class Groups)?

Are there any new Lotu Fehu'i ?

Are there any new Akonaki?

Are there any new Malanga?

Is anyone joining our church from another church?

Is anyone leaving our church?

Has any Lotu Fehu'i, Akonaki or Malanga passed away this quarter?

What is the financial report for this quarter?

What can we do to promote the Lord's work?

166 Minister Tu'akoi stated that at quarterly church meetings, members could express views about church matters, including day to day issues. Since at least 1993 members of the wider church congregation could, and sometimes did, attend quarterly meetings, but only Lotu Fehu'i could vote.[155] He said that the Secretary would update the roll recorded at the back of the minute book to reflect the change in membership. This, together with the reading of the roll at the commencement of the meeting, ensured that the actual membership was recorded.

167 Mrs Haitelensia Tu'akoi, who is married to Minister Tu'akoi, gave evidence that she did not know of any written rules stating that only Lotu Fehu'i could vote, but it was customary,[156] as 'Everyone knows who holds Lotu Fehu'i status.'[157]

168 Mr Ofamo'oni gave evidence that the roll of Lotu Fehu'i, Akonaki and Malanga was called at quarterly meetings and the leader of that group would stand and acknowledge the roll call.[158] Members could lose their membership or position in the Church because of unsuitable behaviour. He gave evidence that the Minister did not, at the last quarterly meeting he attended in 2014, mention anything about who could and could not vote.[159]

169 Ms Christine Moala, the first plaintiff, said that the three congregations of the Melbourne Church together would hold annual general meetings, with voting by a show of hands. The agenda would typically include matters that affected the whole Church or Association. For example, there might be a call on funds for a bus for one of the congregations or funds to make repairs to a church. Most members of the congregation would attend the meetings. She voted on issues at the quarterly meeting, although she was not a Lotu Fehu'i.[160]

170 Ms Toakase Kalu, the daughter of Pita Ofamo'oni, stated that the district meetings were held after the Sunday service, but the quarterly meeting of all congregations was part of the Sunday service.[161] So everyone who attended the service, often about 100 people, remained, although not all were required to stay. Despite not being Lotu Fehu'i,[162] she could vote on resolutions concerning the management of the Church.[163] She said that there was no point in having the testimony process by the Lotu Fehu'i of their spiritual state 'when all the church is gone? Who's going to listen to them?'[164] She said that the roll call was used to check whether those holding spiritual positions were still worthy of that position and that they were willing to continue. No words were said to the effect that 'anyone can attend a meeting, but only Lotu Fehu'i can vote'. Ms Moala's evidence was to the same effect on this point.[165]

171 Mr Latusilatolu Taunisila said that at quarterly meetings votes were taken by a show of hands and all members voted at those meetings, not just Lotu Fehu'i.[166] However, he agreed that sometimes the Minister stated that anyone could attend the meeting, but that only Lotu Fehu'i could vote.[167] He said that at the Werribee congregation's quarterly meetings all matters directly relating to the congregation were discussed and at one meeting a year appointments to office occur and honorary roles are determined. After the congregational meeting is held, all issues and reports are sent to the Association's committee which has the final say on what can be done.[168]

172 Ms Beeson gave evidence that only Lotu Fehu'i, Malanaga and Akonaki voted at the quarterly meetings.[169] Ms Taufa's evidence was to similar effect[170], as was Ms Palavi's[171] and Mr Langoia's.[172]

173 I find that the Fellowship did have a practice that only Lotu Fehu'i, Malanga and Akonaki were intended to vote at quarterly meetings, because the meeting was about them and matters affecting them. But because many people who did not have that status remained for that meeting, a number of them would sometimes vote on issues raised at the meeting. I also find that the Minister would sometimes, but not always, state that only Lotu Fehu'i could vote at the start of the meeting.

174 However, as well as quarterly meetings there were a number of other meetings of the Fellowship at which the balance of the evidence suggest voting was open to all attendees.

175 There were a number of extraordinary meetings to make important decisions. For example, both Mr Tautalanoa and Ms Grima stated that all members of the church voted on the question of whether to purchase the land at Werribee in 1991.[173] Ms Grima also voted at a general election in 1983,[174] despite her not being a Lotu Fehu'i at that time.[175] People who were not Lotu Fehu'i voted on the adoption of the two editions of the Constitution.

176 The Constitution also made provision for annual general meetings. It does not mention any restriction on voting rights at them, but instead says that 'The General Meeting is open to all members'. Mr Tautalanoa gave evidence that 'Everybody, all the members' could vote at the annual meeting of the three congregations,[176] and that these meetings took place between at least 1991 and 1993.[177] Mr Kafoika stated that annual general meetings had taken place since 1991 in order to comply with government regulations, and it was at these meetings that the election of office-bearers took place and local congregational appointments were confirmed.[178] He stated that there was no roll call at these general meetings, in contrast to the quarterly meetings.[179] Ms Beeson agreed that there were annual general meetings held after 1991, usually in April.[180] Mr Tu'akoi stated that there were annual meetings held since at least when he joined the church in 2003, although they usually occurred during one of the Association's quarterly meetings and no notice was ever sent out regarding them before 2014.[181] Mr Ofamo'oni, however, stated that since becoming secretary of the church in 2002[182], he had never become aware of any general meetings of the church, and that there was no system to treat some meetings as annual general meetings, save 'the meeting in 1991.'[183] However, his evidence was limited to events after 1995, the year in which he joined the Association.[184]

177 In addition to these annual general meetings there were also 'district' or 'congregational' meetings.[185] Ms Kalu stated that, at least since 2000 when she joined the Sunshine congregation,[186] these meetings were usually held before the quarterly meeting, and that like those quarterly meetings, district meetings occurred about four times a year,[187] and were meeting of just one of the congregations.[188] She said that a district meeting would deal with issues of people wishing to become Lotu Fehu'i, or Akonaki, or Malanga, and that such things and other important issues would first get discussed at the district meeting before being taken to the quarterly meeting.[189] She said that everyone at the Sunshine church attended these meetings, and could not recall any restrictions on voting.[190] Ms Moala stated that district congregational meetings dealt with set questions about spiritual life, but also things like maintenance, and that there were no cautions at these meetings as to who could or could not vote.[191] Mr Kafoika stated that these district meetings were 'for all'. He himself recalled being voted in as steward of the Werribee congregation in a meeting in which all members of that congregation, Lotu Fehu'i or otherwise, were allowed to vote.[192] Ms Beeson recalled a similar meeting in 1991 when she was elected treasurer by the whole Werribee congregation.[193] Mr Tu'akoi agreed that each district church had its own congregational quarterly meetings in which local matters pertaining to each church were discussed, meetings which all members were allowed to attend and at which non-Lotu Fehu'i members voted by raising their hands.[194] It is unclear, however, whether Mr Tu'Akoi agreed that those persons who were not Lotu Fehu'i were allowed to vote, or whether he merely noted that they had done so. Ms Palavi recalled the existence of congregational meetings but could not recall who could vote at them.[195] However, Mr Fifita Langoia disagreed that all members could vote at congregational meetings,[196] as did Mrs Tu'akoi.[197]

178 Ms Beeson gave evidence that she could tell from her own observation that only Lotu Fehu'i voted between 1985/1986 and 1990[198] and evidence to similar effect was given by Ms Palavi and Ms Taufa,[199] both members from 1984. However, the plaintiffs' witnesses including Mr Tautalanoa, the first Secretary and Ms Grima, the Treasurer gave different evidence.

179 In addition to these large, infrequent meetings the Fellowship and Association also had a smaller-scale system of decision-making at the cell/class group level. For example, both Ms Grima and Mr Ofamo'oni recall there being voting and discussion in the cell groups regarding whether to build a church on the land purchased in Werribee.[200] The decisions of those cell groups were then communicated to the quarterly meeting through the cell group representatives.[201] Mr Langoia and Mrs Tu'akoi agreed that everyone could vote in class group meetings.[202]

180 I find on the balance of the evidence that you did not have to be a Lotu Fehu'i in order to be able to vote at meetings of the Fellowship other than the quarterly meeting. This is supported by the evidence of Mr Tautalanoa, the original Secretary of the Fellowship, Ms Grima, the original Treasurer and Mr Ofam'oni, who also has served as Secretary.

181 The defendant argued that only Lotu Fehu'i could vote for the election of office-bearers, which they used to support their custom and practice submission. The evidence on this point however was equivocal at best, and complicated by confusion about pre-incorporation versus post-incorporation practice, and for post-incorporation the difference between office-bearers at each district as opposed to the Association as a whole. As the critical question is what the custom and practice were during the Fellowship period, the question of whether only Lotu Fehu'i could vote after 1991 is only relevant to the extent that it informs pre-incorporation practice.

182 The Fellowship's first Constitution provided for the creation of a committee comprised of various office-bearers such as Secretary, Treasurer and Steward. It required an election for those office-bearers to be held once year at an annual general meeting which all members were free to attend. Relevantly, it stated that 'one has to be an active member of the Fellowship for three months before she/he is eligible to vote'. The second Constitution also provided for a mandatory annual general meeting at which election of office-bearers was to occur, and stated that 'no person will be allowed to vote unless one has been a member for three months and above'.

183 The first of such meetings appears to have occurred in January 1983, at which the first Constitution was adopted for implementation the following year.[203] However in October of that year an election of office-bearers occurred.[204] Though required by the Constitution, an annual general meeting was not always held during the Fellowship years 'because it was hard to get any minister to come to be chairperson' of the meeting.[205]

184 Much of the evidence regarding who could vote for the election of office-bearers pertained to post-incorporation practice which, as stated, is not of direct relevance to the defendant's custom and practice submission regarding pre-incorporation membership practices. However some relevant evidence was led. Mr Kafoika gave evidence that in 1984, office-bearers were appointed by both confirmed members (Lotu Fehu'i) and non-confirmed members, and that no roll call was conducted at those meetings.[206] Ms Grima also gave evidence that in the election of office-bearers in October 1983, as well as being elected, she voted along with other persons who were not Lotu Fehu'i.[207] I have referred to this meeting previously.

185 By contrast, there was evidence from the defendant's witnesses that, before incorporation, only Lotu Fehu'i could vote for the election of office-bearers. Ms Taufa gave evidence that the practice of voting for office-bearers in Yarraville after 1991 was the same as during the Fellowship: 'whatever we did in Barkly Street [Footscray] transferred to Yarraville'.[208] Her evidence was that, at Yarraville, office-bearers were appointed at a quarterly meeting at which anyone could attend though only Lotu Fehu'i could vote by a show of their hands, though she could not say for sure whether only Lotu Fehu'i put their hands up.[209] Ms Beeson also gave evidence that only Lotu Fehu'i voted for the election of office-bearers during the Fellowship period.[210]

186 Even though after incorporation the questions of who was a member and who could vote for office-bearers were regulated by the 1991 Rules as supplemented by the Model Rules, the evidence of who could vote for office-bearers after incorporation may still inform what the pre-incorporation practice was, as the Association was not cognisant of, nor compliant with, the Rules and Model Rules that applied after 1991.

187 After incorporation, when there were three congregations, each congregation would appoint its own office-bearers such as caretakers and Sunday school teachers.[211] Some members of each church's committee, such as the Steward, would be automatically appointed to the Association's overall management committee.[212] Those appointees would be confirmed at an annual general meeting of the Association.[213] Mr Ofamo'oni gave evidence that, as Sunshine was the 'head' of the three congregations, those appointed as secretary at the Sunshine Church would then become the head secretary of the Association.[214] Those office-bearers would be elected by 'confirmed members'.[215] Mr Ofamo'oni's evidence suggested that each class group would appoint a leader who would automatically become a member of the committee.[216] The plaintiffs submitted that at each congregation's election of office-bearers all members could vote, not just Lotu Fehu'i.[217] The evidence suggested that office-bearers were elected at annual general meetings.

188 The evidence as to who voted in elections for office-bearers during the Fellowship period lacked some clarity. While some of the defendant's witnesses suggested that only Lotu Fehu'i could elect members to the committee, there was contradictory evidence from Mr Kaifoika and Ms Grima. There is also uncertainty surrounding the rule after 1991 in light of the evidence that the election of local congregation office-bearers, who formed part of the Association's committee, may have been conducted by all members not just Lotu Fehu'i. Further, the evidence of the defendant's witnesses in support of its contention must be qualified by the fact that some did not know whether only Lotu Fehu'i raised their hands to vote at elections.[218]

189 But I am not persuaded on the evidence that there was a clear custom and practice that only Lotu Fehu'i could vote for office-bearers during the Fellowship period. I prefer the evidence of Ms Grima and Mr Kafoika that persons who were not Lotu Fehu'i voted for office-bearers. The Constitution made it clear that the Annual General Meeting was open to all members and therefore all could participate and vote in it.

190 Though it has not been established that only Lotu Fehu'i could vote for office-bearers, the evidence appears clear that with a few notable exceptions, the Fellowship had a custom and practice that only Lotu Fehu'i could hold office. The office-bearers were selected from more senior members of the Fellowship, and despite the absence of any formal rule each was generally Lotu Fehu'i. These offices included a Treasurer, a Steward, a Youth Leader, a Secretary, Class Group leaders, Sunday School teachers and caretakers. The office-bearers of each congregation formed the committee, which typically numbered around 32 members, each of whom was Lotu Fehu'i.

191 The evidence from the plaintiffs' and defendant's witnesses alike was to the effect that a person had to be Lotu Fehu'i to hold office. Mr Tautalanoa, the plaintiffs' witness, gave such evidence,[219] as did Ms Grima,[220] and as did various other witnesses.

192 The rule, however, was not without exception, as evidenced by Ms Grima herself. She became Treasurer of the Fellowship in 1983 despite not being Lotu Fehu'i at that time. The practice could therefore not be classed as entirely universal, at least in the early period of the Fellowship.

193 However, the evidence of both parties is mostly similar on this issue, and I therefore find that there was a custom and practice that, in order to become an office-bearer, one had to be at least Lotu Fehu'i. However, that finding does not mean that only Lotu Fehu'i could be members of the Fellowship, which is a quite different issue. A requirement to hold office is by no means necessarily a requirement of membership.

The plaintiffs' submissions about the membership rule

194 The plaintiffs pleaded that for the purposes of establishing their claims to membership they fell into three groups. The first of these groups was the founding members. The other two groups were the disputed founding members and the disputed members, also called the post incorporation members.

195 The qualifications for membership of the Fellowship were as contained in the Constitutions of 1984 and 1986. Membership was recognised once a person's name was registered in the Registry Book. Such a book was kept by the Fellowship from at least 1984 and contained the names of all persons who met the qualifications of membership whether they were Lotu Fehu'i or not. The plaintiffs contended that the Registry Book was the book tendered as Exhibit Y.

196 In addition, however, they pleaded that the disputed founding members and the post incorporation members were baptised into the Church, were welcomed into the Church by the then Minister in open congregation, participated in the life of the Church in that they were assigned to cell groups (class groups) by the then Minister and were involved in fundraising for the Church, engaged in pastoral care, attended Church services and were active in the congregation and had never signed a letter resigning their membership.

197 In the next section of the judgment, I consider the witnesses' evidence on how they and others became members. Some of this evidence, but not all, overlaps with the evidence about the defendant's previously mentioned custom and practice claim.

198 A number of the plaintiffs' witnesses with knowledge of the Fellowship period gave evidence that a person did not have to have attained Lotu Fehu'i status in order to be a member. Their evidence was that it was sufficient that the person was accepted and confirmed into the church, in contrast to the defendant's witnesses who said that the person had to have attained Lotu Fehu'i status.

199 Three of the plaintiffs' witnesses had been closely involved in the Fellowship's activities. They gave evidence that a person did not have to be a Lotu Fehu'i in order to become a member of the Fellowship. I will summarise their evidence next.

200 Mr Tautaalanoa was elected as the first secretary and public officer of the Fellowship in 1983, having attended its services regularly from 1978. He became a lay preacher in 1983. His evidence was important because he was one of the few people still able to give evidence who was involved in church activities from the first days of the Fellowship through to the first years of the incorporated Association.[221] Because of the current disputes in the Association, Mr Tautalanoa now worships at the Werribee Church. The first Minister of the Fellowship, Mr Vaotangi, was not able to give evidence because of his age.

201 As previously mentioned, Mr Tautalanoa's evidence was that, in the 1980s, a person wishing to become a member of the Church would meet Minister Vaotangi and tell him of their wish.[222] If the Minister accepted them their name was recorded in the Registry Book.[223] An applicant for membership during this period did not have to have the status of Lotu Fehu'i.

202 The defendant placed considerable reliance on the roll book kept by Mr Tautalanoa of attendances at quarterly meetings, and argued that the names recorded in this roll book were the members of the Fellowship.

203 At one point in his evidence, Mr Tautalanoa did agree that the roll book contained a record of who was in the Fellowship at any given time.[224] However, that was not the effect of his evidence read as a whole. Thus, in cross-examination he gave the following evidence in which he referred to other people as well as the Lotu Fehu'i, Malanga and Akonaki:

Mr Marks: So the names in this book were the names of the members of the Fellowship?---Not all, everybody. Only Malanga, Akonaki and Lotu Fehu'i, that's it. The other people is not here.

Mr Marks: The families are not there, you say?---Yes.

Mr Marks: I understand. But the people who attended and voted at the quarterly meetings, they are there, aren't they?---No, everybody.

Mr Marks: Sorry? Everybody? This is all of the people you say who attended the meeting?---This Malanga, Akonaki, Lotu Fehu'i . Some people is not there in this list, but they in the meeting, but they in the meeting, together with these people.

Mr Marks: These are the names of people whose attendances mattered?---Yes, right.

Mr Marks: Because these are the names of the people who could vote at the quarterly meetings; correct?---That's right.[225]

204 I do not consider that the effect of Mr Tautalanoa's evidence, when read as a whole, was that a person could not be a member of the Fellowship unless they had attained Lotu Fehu'i status. In fact he said that:

It was never a requirement of the Free Wesleyan Church of Tonga or the Association or the Free Tongan Fellowship, being the unincorporated Association prior to the incorporation of the Association that you had to be Lotu Fehu'i to be a member.[226]

205 Mr Tautalanoa pointed out that persons who were not Lotu Fehu'i voted for the adoption of the 1984 and 1986 Constitutions. He said that in February 1985 the general meeting reviewed and discussed the revisions and extensions of the first edition which were eventually endorsed. Puna Kafoika, who was not Lotu Fehu'i at that time, participated in that meeting.

206 Similarly, Mr Tautalanoa gave evidence that on 26 January 1986 a general meeting of the Fellowship decided to adopt the second edition of the Constitution. Participants in that meeting included Puna Kafoika, Pone Halahala, Ane Lauaki and Sione Lauki, none of whom were then Lotu Fehu'i.[227]

207 Ms Grima gave evidence to similar effect as Mr Tautalanoa's. She became a member of the Fellowship in 1978 and the defendant accepts her as a founding member. She was Treasurer of the Fellowship and later the Association from 1982 to 2014 and became Lotu Fehu'i in 1986.[228] She said that when she was Treasurer there was no formal list of members of the Church.[229] Ms Grima said that she had donated about $189,000 to the Church.[230]

208 Her evidence was that the only criterion for membership of the Fellowship was contained in Rule 3.1 of the Constitution (first edition), namely that 'Membership is free for all people, provided their names are registered in the Fellowship's Registration Book'.[231] You did not have to be Lotu Fehu'i to be a member of the Fellowship.[232] She said that in 1986 about 15 of the 50 members of the Fellowship were Lotu Fehu'i.

I have always been a member of the Free Wesleyan Church of Tonga in Tonga, as this was the religion of choice that my parents raised our family in, and so being a part of a church and a member in a church was always a big part of our lives as Tongans. I have always been treated as a member and have had a great part to do with "the church" from conception till this day.

When we became a member within the church, it was a requirement that you are either baptised into the church at about three months of age, and from that day on it would be the parents duty to teach the child and raise the child according to the doctrines of Christ. If you are an adult that has come from another denomination then you were required to be verbally accepted into the church.

Once you let the steward, Minister or Secretary know you wish to become an active member of "the church" you would then be allocated to a Cell group...[233]

210 She said that persons who were parishioners of the Church and fell within the definition of member in the Constitution were regarded as Church members.[234]

211 Mr Tevita Kafoika, the fourteenth plaintiff, was a founding member of the Fellowship and participated in its affairs. He was not a Lotu Fehu'i when he became a member of the Church in 1982 and did not attain that status until about 1986. He said that it was never a requirement of the Church prior to its incorporation that a person had to be Lotu Fehu'i in order to be a member. He made significant monetary contributions to the Church because he thought he was a member.

212 Mrs Vika Tautalanoa joined the Fellowship in 1978 and became a Lotu Fehu'i in 1984. She regularly participated in the Fellowship's affairs and contributed about $44,000 to it. She was baptised in Tonga and gave evidence that it was not a requirement of membership of the Free Wesleyan Church of Tonga, the Free Tongan Fellowship or the incorporated Association, that a person be Lotu Fehu'i in order to be a member. She had been a member of the Sunshine congregation, but because of the current dispute she now worships at the Werribee church with her family.

213 Mr Sione Halahala, the twenty-sixth plaintiff, said that he became a member of the Church in 1985 and been an active member of the Werribee congregation since 1991. He became a Lotu Fehu'i in 1994.[235] He has donated in excess of $50,000 to the Church between 1991 and 2014 from his wages as a labourer believing that he was a member. He would not have done that if he knew that he was not a member. In 2009, he was elected by the Werribee congregation as assistant choir conductor and assistant secretary and qualified to become a member of the committee.[236] He is now an assistant steward, a preacher in the Werribee congregation and a member of a class group. He summarised his involvement with the church in the following terms:

Despite never having to fill in a membership form I was treated as a member and so [too] my family, as I am part of a cell group, choir, local congregational meetings, and I have a responsibility to raise funds that are the plans of the church, and I pledged my membership into the church.

I have given funds towards the purchase of properties, building of churches for use of worship, payment of invoices, ministers' wages and other financial discussed matters of the church.[237]

214 Ms Christine Moala**,** the first plaintiff, joined the Fellowship with her parents in 1985 or 1986 when she was five or six years old.[238] She had been baptised in the Free Wesleyan Church of Tonga when she was an infant. She was welcomed into the Church in Australia in 1994. She recalled standing up in front of the congregation and being introduced by the Minister, giving a small speech and stating whether she had any blood relatives in the Church.[239] She said that the Minister had always welcomed new members, who were asked to stand during services, were welcomed by name, typically with introductory remarks being made such as whether they were related to any current member.[240]

215 She moved to Brisbane in 1998, but returned in 2000. In 2004 she again moved to Brisbane, and while there she worshipped in the Wesleyan Methodist Church for Tongans.[241] In that Church she became a Lotu Fehu'i in 2008, and a Malanga or preacher in 2009.[242] She returned to Melbourne in 2014 and was welcomed into the Werribee congregation. The defendant's case was that Ms Moala did not become part of the congregation until 2014.[243] She provided the Minister a letter confirming her status as Malanga, but although she gave many sermons to the Werribee congregation the Minister has not recognised her as Lotu Fehu'i. She had raised about $10,000 in her class group, mainly from her private earnings.

216 She said that when a person wished to become a member of the Church they notified the Steward or the Secretary of the particular congregation, who entered their details in the Registry Book and notified the Church at the next congregational meeting that a new family had joined the Church.[244] Her understanding of a 'member' of the Church was someone who was known to the Minister, had been accepted and confirmed into the Church, was an active member of a class group, and had undertaken the responsibilities of a member.[245]

217 I will next describe the evidence of the plaintiffs' witnesses about the situation after the Association's incorporation. The parties accept that no one validly became a member of the Association between 1991 and 18 July 2015. Therefore, that fact has to be taken into account when I describe the evidence of witnesses who state that they became members post-incorporation. The evidence concerning post incorporation activities is less relevant in determining the Fellowship member rule, but as most persons associated with the Fellowship and the Association were unaware of the provisions of the Constitution and Rules it is capable of lending some assistance in the way people actively involved with the Fellowship and Association treated the question of membership.

218 Mr Pita Ofamo'oni became a member of the Association and Church in 1994, after presenting the Minister with a letter from his previous church in New Zealand stating that he was a Lotu Fehu'i.[246] The Minister accepted him as a Lotu Fehu'i.[247] He served as the Association's Secretary between 2003 and 2013 and then became Assistant Secretary. After a dispute with the new Minister he commenced to worship in the Werribee congregation.

219 Mr Ofamo'oni gave evidence that attaining Lotu Fehu'i status was never a requirement of membership of the Association and that it was sufficient that your name was recorded in the Registry Book. However, he was not aware that such a book was kept while he was Secretary. Nor was he aware of any membership application form, or any membership fees charged. Members were encouraged to make regular weekly contributions and the annual Misinale contribution. Mr Ofamo'oni said that he had donated $70,000 to $80,000 to the Church between 1994 and 2015, [248] and carried out work for up to 30 hours a week for it. He would not have done so had he not thought he was a member.

220 Mr Ofamo'oni gave the following evidence about becoming a member, which the two interpreters interpreted with some differences. The first version was:

...when you become a member, when you want to be a member, you go into the church and tell to authority person I want to be a member and you become a member, and confirmed members are different step. [249]

I mentioned earlier in my statement where I do attend church, I then desire, I feel the spirit, then I desire that this is the church I want to belong to, then I approach the stewardship. Then from the stewardship to the minister and then the minister then will confirm that I will become a member. Lotu Fehu'i is in a different process.[250]

222 Mr Tuia Vea, the third plaintiff, gave evidence of becoming a member of the Association or Church in 2000 by joining the Dandenong congregation and presenting a letter to the Minister from his previous church in New Zealand, where he had attained Lotu Fehu'i status in 1995. He stated that it was never a requirement of membership of the Church that you had to be Lotu Fehu'i. He became a steward of the Dandenong congregation by vote of church members, some of whom were not Lotu Fehu'i. He has made donations to the Church believing that he was a member.

223 Ms Toakase Kalu, the fourth plaintiff and the daughter of Mr Pita Ofamo'oni, understood that she became a member of the Church when she was welcomed as a child in 1994 at a church service after moving from New Zealand with her family. She joined a class group with her parents[251] and remained an active member of class groups at the Sunshine and later Werribee congregations. She is not a Lotu Fehu'i, but said that she had voted at quarterly meetings on matters of Church management and her vote had been counted.[252] She said that:

A Lotu Fehu'i is not a membership pledge, into the Church and it has never been, for if this were the case I would have made the pledge, to be a Lotu Fehu'i if this was indeed the means of becoming a member of the Church but this was not the case.[253]

224 Mr Latusilatolu Taunisila, the sixth plaintiff, described his membership as following his welcome by the Minister during a Sunday service at Werribee in the presence of the Church members. He was appointed to a class group where spiritual matters and issues referred by the management committee were discussed. Each class group was given an annual fund raising target. He was appointed as the caretaker of the Werribee Church at a congregational meeting in 2004, which the pastor, steward, secretary and members attended. By then, he had attained the status of Malanga. As caretaker, he became a member of the Committee. He said that there is a small Tongan community in the Werribee region who assist each other in getting the elderly, children and members to church every Sunday. He works as a forklift driver and he estimated that he has spent hundreds of dollars from his wages purchasing things like flowers and cleaning products to performs his unpaid caretaker's job. According to Church records, he donated $38,027.30 to the Church between 1995 and 2013. In his affidavit he gives a figure of $45,000 as his Misinale contributions between 1995 and 2014, which does not include weekly contributions that he has made.

Defendant's evidence regarding the membership rule

225 I will next consider the evidence as to the membership rule given by witnesses called by the defendant. To repeat, the defendant's case was that the Fellowship's, and later the Association's, custom and practice was that only persons who had become Lotu Fehu'i, enjoyed the status of confirmed members, that is members who were entitled to vote on decisions affecting the organisation.

226 The defendant's witnesses said that they became voting members of the Church or Fellowship after they became Lotu Fehu'i. The defendant particularly relied on the evidence of Ms Lupe Beeson, Ms Sokopeti Palavi, who served on the Fellowship's management committee from around 1989, and Ms Mele Tonga Taufa.

227 Ms Lupe Beeson was born in Tonga, where her father was head steward of the local congregation, and came to Australia when aged 20. She commenced attending the Fellowship in the late 1980s. She said that she became a member of the Fellowship at the September 1990 quarterly meeting, after Minister Vaotangi asked if there was anyone ready to become a new member, and her name was put forward as candidate for the status of Akonaki, although she had not yet become Lotu Fehu'i. She decided to accept the offer of membership and the commitments that went with the status as she felt she was ready. From that time on she was entitled to, and did, vote at the Fellowship's quarterly meetings and to elect office-bearers.

228 Ms Beeson gave evidence that persons who were not members were welcome to attend quarterly meetings, but did not have the rights that Lotu Fehu'i possessed. Prior to becoming Lotu Fehu'i, she did not vote at quarterly meetings of the Fellowship because she was not a member. She said that Lotu Fehu'i could also perform functions in Church services, such as teaching at Sunday School. The current Minister announced at the start of each meeting that a person had to be Lotu Fehu'i to vote.[254] She said she knew everyone who voted at meetings in the 1980s and people who were not Lotu Fehu'i did not vote.

229 Ms Sokopeti Palavi grew up in Tonga and by 1984 had moved to Melbourne and was attending services in the Fellowship.[255] A few months later she became a Lotu Fehu'i and was treated as a member of the Fellowship with the right to participate in decision making. She said that many people gave money to the Church whether or not they were Lotu Fehu'i, but that no one was forced to donate.

230 Mrs Meli Tonga Taufa was born in Tonga and in 1971 moved to New Zealand and then to Australia in 1973. She said that in Tonga congregational participation was distinguished from formal membership of the Church. The Tongan Church rules allowed only those who were Lotu Fehu'i to vote at meetings, including for the election of office-holders. In 1984 she and her husband attended a Fellowship of 15-20 Tongan speaking people in Footscray, led by Minister Vaotangi, and were placed in a class group. She found that the congregation was conducted similarly to her congregation in Tonga. She became Lotu Fehu'i in 1984 and Akonaki in 1986. The class groups arranged the payment of Misinale, which was offered as a gift for God's work and not to receive anything in return. After incorporation, the Association continued to be conducted in the same manner. She said that 'even in the early days of the Fellowship, the conferring of Lotu Fehu'i rights were regarded as central to participation in the running of the Fellowship. From my observations, this continued to be the position in the Melbourne church after incorporation'.[256] She said that upon becoming Lotu Fehu'i she could vote at Fellowship meetings and that it was well understood that only members could vote and that the only way to be a member was to be Lotu Fehu'i.

231 I will next consider the relevant evidence of the defendant's witnesses about post-incorporation issues about membership and participation in the Association.

232 First was Minister Sione Tu'akoi, the current Minister, who became a member of the Melbourne Church in March 1993, by giving testimony at a church service and being approved by members' vote as a Lotu Fehu'i. He is the current Minister of the Church and gave evidence as part of the defendant's case. He was born in Tonga where his father was a Minister of the Church and his mother was Malanga, which is a lay preacher. He said that the previous Minister told him in about 1993 that he had permission to use the name 'Free Wesleyan Church of Tonga' and as much of the Tongan Constitution as he thought suitable for the Melbourne Church. However, he found that some practices deviated from the practices provided for in the Tongan Constitution.

233 After becoming Lotu Fehu'i, he was able to vote at Church meetings and became a member of the management committee. He said that the procedures for appointing Lotu Fehu'i were the same as in the Tongan and Sydney Churches.[257] Lotu Fehu'i could be described as the bottom rung in the ladder of positions within the Church whose rights and responsibilities were formally recognised. In Tonga, a person would remain a 'learner' for many months before obtaining Lotu Fehu'i status.[258]

234 Mrs Haitelenisia Tu'akoi is married to Minister Tu'akoi and became a Lotu Fehu'i in the Melbourne Church in 1999 after obtaining her class group's support, having her name read out by the Minister at the next quarterly meeting and giving her testimony and undertaking to live a Christian life. The members voted to accept her as Lotu Fehu'i and she was formally accepted by the Minister. She then commenced to vote at meetings of the Melbourne Church.

235 Mr Fifita Langoia came to Melbourne in 2010, at the age of 70 to be with his children after many year's involvement with the Tongan and New Zealand Churches. Born in Tonga where his father was a Malanga and his mother was an Akonaki, he became a Lotu Fehu'i in 1961 when he was 21 years old and a Malanga six years later. In 1973 he moved to New Zealand and joined a church in Auckland as a Lotu Fehu'i and Malanga. In 1981 he returned to Tonga and became a trainee Minister being ordained a Minister in 1989. He served as a Minister for 21 years in Tongan churches until he retired in 2010 at the age of 70. He is familiar with the Tongan Church Constitution and for many years was chairperson of a committee in his local church. He gave evidence that membership of the Tongan Church was obtained by attaining Lotu Fehu'i status in a local church congregation after giving a commitment and being accepted at a quarterly meeting. To become a member requires a significant commitment of time and dedication to the Christian life and it took him about a year to become Lotu Fehu'i. Thereafter, he was entitled to vote on questions of the administration of a local church congregation and on appointments to the local committee as well as stand for office himself.

236 When he moved to Melbourne in 2010 he was introduced to the Sunshine Church. He gave his testimony and was accepted by a vote of the members as a Lotu Fehu'i, Malanga and Minister of the Melbourne Church, and as such assists the current Minister.[259]

237 Mr Robert Wall, who has been mentioned previously in connection with Exhibit Y, became a member of the Association in March 2013 and on 18 July 2015 was elected to the management committee of the Melbourne Church as Public Officer Communications. He met his wife, who was an Akonaki in the Tongan Church, and they moved, or in his case returned, to Australia in 2004, and moved to Melbourne in 2007, and attended the Melbourne Church. In 2013 he gave testimony to the members of his class group, who supported him in becoming Lotu Fehu'i. He then gave testimony before the Sunshine congregation at a quarterly meeting and later at the next quarterly meeting of the members of the whole Melbourne Church. He was formally approved by a vote of the members. Thereafter, he voted at quarterly meetings, at meetings to elect the management committee and at meetings such as annual general meetings or special meetings.

238 Mr Siosifa Finaua gave evidence as part of the defendant's case. He advised Minister Vaotangi about the incorporation of the Melbourne Church, gave him a copy of the Sydney Church's Constitution and visited the Footscray Church. Although he was not involved in drafting the 1991 rules, he said that they were substantially identical to the Sydney Constitution.

239 He was raised in the Tongan Church in which his grandfather was a Minister and he was very familiar with its practices. He moved from Tonga to Sydney for university studies when aged 21. He joined the Sydney Church and was its Secretary from 1985 to 1991. He described the role of Lotu Fehu'i as the first rung of official positions in the Tongan Church and said that it opened the door to office-bearer positions. Only Lotu Fehu'i could vote at Church meetings or stand for office.[260] He did not recall persons who were not Lotu Fehu'i being permitted to vote at these meetings. He said that in Tonga at every quarterly meeting the names of members were read out by the Secretary or Chairperson and they were marked off.[261] He said that not all of the Tongan Church's practices were in the Constitution, and much was tradition based.[262]

240 Mr Finau gave evidence as to how a person becomes Lotu Fehu'i in Tonga. They tell the Minister or the Steward of their wish, they are placed in a group of trainees and study the Bible and the rules applicable to a Lotu Fehu'i's role. After a training period which can last for a few weeks to several months, they give their testimony at their local church and make a commitment that they are ready to become Lotu Fehu'i, have accepted Christ and will abide by the rules and teachings of the Tongan Church. The Minister or Steward then submits the person's application to a further service, called the Service of the Night, which is a quarterly meeting attended by members of local branches of the Church for the admission of new members. After the candidate again gives testimony at that service, the meeting votes on whether to accept them. If accepted, their name is recorded in a register book kept by the secretary and in the local church register.

241 Mr Finau gave evidence that in Tonga the term 'member' is often used to refer to persons who comprise the Church congregation, but it is also used in a more formal sense to designate those persons who become confirmed members of the Church on obtaining Lotu Fehu'i status.

242 Witnesses for both the plaintiffs and the defendant stated that at that time, the Fellowship observed the same rules as the Free Wesleyan Church of Tonga, although the Tongan Church Constitution indicates that there were significant differences.[263]

The Constitution of the Free Wesleyan Church of Tonga

243 The Tongan Church Constitution[264] is a detailed document reflecting the central role that the Church plays in Tonga. Its detail is in contrast to the Constitutions of the fledgling organisation that started as the Fellowship and grew into the Association in Melbourne.

244 The second edition of the Melbourne Church's Constitution stated that it was intended to reflect certain teachings of the Tongan Church. That wording is explicable because attempting to commence a Tongan Church away from Tonga and in a large city with a much smaller number of fellow worshippers was a challenging task.

245 The following features of the Tongan Church Constitution appear of significance. The role of Catechumens is mentioned. They are members of the Church who join a Catechumen class which is said to be comprised of 'those who often meet because they want the truth about Godly behaviour and to exchange views.'[265]

246 Chapter II lists the positions in the Church include Class Leaders, the Female Advisers (Akonaki), the Lay Preachers, and the Stewards of the Quarterly Meeting. Chapter II states:

1. No person will hold a position in the Church who is not a Catechumen and who does not believe in the main teachings of the Wesleyan Religion. Every position holder will obey the meetings of the Church that affects his position, and those meetings can judge him and to appoint and demote if he is not suitable for his position.
2. And it will be up to the Conference from time to time to define in detail the definition of the word Position.

247 The Constitution deals with the role of Ministers including the assigning of the ministers to the parishes.

248 Chapter V contains a detailed description of the meetings of the Church. They include 'the meeting to declare matters relating to people', the preparatory meeting of the lay preachers, the quarterly meetings, the meetings of the lay preachers, the regional meetings, the main regional meeting, the Conference including the Ministers' Conference and the General Conference. The Constitution does not state what business is conducted at quarterly meetings, but it does set out a series of questions that the Minister chairing the meeting is to ask, some of which are similar to questions asked at quarterly meetings in the Melbourne Church.

249 The Constitution then deals with the Worships Sessions which include the sermons, the two sacraments of baptism and the Lord's Last Supper as well as rules for conducting a marriage ceremony, a funeral, the church services, fastings, the New Year's Eve Service and the night time prayer service. In respect of baptism the following is stated:

The Baptism is a Sacrament to demonstrate the accepting of people to the Church of Christ and this has been done from the beginning, not only for adults who believe, but for children as well, for it was written in the scripture, 'Somebody died as a Substitute for everyone.' So the blessings from the sacrifice that has been done for the world are endowed on everyone. So, when it is clear that is God's will, they will be allowed to be included in the Church of Christ through Baptism.

250 The Constitution in Chapter VI deals with committees, including meetings with particular tasks such as for the colleges, the Sunday school, for publishing and for overseas work. Then there is a standing committee, and a committee for educational institutions in which the Church obviously plays a significant role. The educational institutions include the colleges and the middle schools, the primary schools and theological colleges. The Constitution deals with the Sunday school, with trustees with finances including Misinale and the yearly collection.

251 Then in Chapter X the teachings of the Church are stated and are introduced by the following passage:

The main doctrines and teachings of our church are showed in the descriptions made by Mr Wesley on the New Testament and his preaching about the Original Sin, and Jesus Christ who is God and Saviour and the reconciliation He had done, and work and evidence done by the Holy Spirit, and Christian righteousness.

252 There is then a section dealing with 'The requirements for church members, established in 1743 by John and Charles Wesley'.

253 That is followed by a section on the duties of the class leader in Tonga and then a section on Catechumens. There is a section dealing with 'The Twelve Edicts for those involved with God's Service' and finally instructions for Ministers.

Conclusions on membership rule and consideration of the defendant's custom and practice case

254 The defendant's submissions that a person could not be a member of the Fellowship unless they were Lotu Fehu'i depended on the Court accepting its custom and practice case, because the rules or Constitutions do not contain such a requirement. There is no part of the Constitutions that supports the contention. However, I do accept that if it had been proved that the Fellowship had a clearly established custom and practice concerning membership then that could form part of the membership rule. The express written text of a rule may be read with or supplemented by unwritten customs or practices, which may form part of the contract or compact However, any custom and practice relied on must be established, well-known and unquestioned.[266] The extent any conflict between the suggested custom and practice and the written rules and regulations may matter.

255 As the defendant contended, under the 1986 second edition of the Constitution a member has the right to vote for the election of office-bearers upon participation for three months,[267] to hold office upon participation for twelve months;[268] and to attend, and by implication, vote at the general meeting.[269] The defendant's case is that a person was a member of the Fellowship only if they possessed those rights.

256 The defendant did not identify when the Lotu Fehu'i custom and practice first existed in the Fellowship, however, in final submissions it argued that it had existed since at least 1986, by the time of the second edition of the Constitution.[270] There was no evidence that the customs and practices were in existence when Tongans commenced to meet at Deer Park in 1978, or when the first or the second edition of the Constitutions were adopted in 1984 or 1986 respectively.

257 The defendant emphasised the role of the quarterly meetings and the fact that only Lotu Fehu'i could vote at them. The defendant relied on the evidence of Ms Grima, the Fellowship's Treasurer in the 1980s, that the quarterly meeting was the Fellowship's principal meeting. Although Ms Grima gave evidence that everyone who attended the church congregation could not necessarily vote,[271] that does not lead to the conclusion that only persons who had the status of Lotu Fehu'i could be members. She also gave evidence that people other than Lotu Fehu'i voted at such meetings.[272]

258 The agenda of the quarterly meetings mainly involved spiritual matters. These included questioning the Lotu Fehu'i, Akonaki and Malanga about whether they were faithfully fulfilling their spiritual duties, enquiring whether anyone had been nominated for those positions and asking about 'what can be done to improve the standards of our work even more?' The meetings opened and closed with the singing of hymns and the reading of scripture. However, Lotu Fehu'i is a spiritual status in the Church, as evidenced by its presence in Chapter 4 of the second edition of the Constitution. Quarterly meetings are intended to be spiritual meetings of the members of the congregation who perform spiritual roles such as class leaders and lay preachers, Lotu Fehu'i, Akonaki and Malanga. But because they occur directly after Sunday services, other persons attend. The demarcation between participation in the church services and the subsequent quarterly meeting has therefore become less clear. For instance, the roll call process is part of the quarterly meeting process, but other persons who have remained after the church service will be present while it occurs.

259 As the defendant submitted, the evidence established that there many people who attended Fellowship church services who were not Lotu Fehu'i. Ms Grima's evidence was that in 1986 there were 50-60 people in the Fellowship congregation, but only around 15 who were Lotu Fehu'i. Mr Kafoika gave evidence that in 1984 about 70 people would attend services. Ms Beeson said that in 1990 there were around 15-20 Lotu Fehu'i and around 150 to 200 persons in the congregation.

260 This evidence raises an important point. Take for example the year 1990. On the defendant's case only about 10 per cent of those who regularly attended church services and were involved in the life of the Church in that year were members. Some chose not to be Lotu Fehu'i, as they considered the obligations of that position, including observing behaviour standards and public speaking to the congregation, as beyond their capacity. As a consequence, the Fellowship or the Association would have as members a select group only, with up to 90 per cent of those who attended church services excluded from membership. The aims and objectives of the 1984 and 1986 Constitutions, which are set out above, hardly suggests that the members to which they refer are limited to those who have attained Lotu Fehu'i status. For example, the 1986 Constitution contains as an objective: 'To maintain lasting relationships that are peaceful, joyful and loving between all members'. The effect of the defendant's case, is that these aims and objectives were expressed only towards persons who had attained Lotu Fehu'i status and not the many other regular attenders at church, who it might be thought, would benefit at least as much from those aims and objectives.

261 It is appropriate to refer to evidence that many of the witnesses were baptised. It is likely that the great majority of people actively participating in church services of a Christian church would be baptised. Membership of many Christian churches is regarded as being conferred on those who have been baptised in accordance with the sacrament of baptism. While Mr Tautalanoa said that baptism had nothing to do with membership of the church and did not necessarily confirm membership,[273] Ms Grima said that if you were baptised in the church you became a member of the church,[274] and that a person's life in the Church began from the moment of baptism.[275] Mr Kafoika gave evidence that a person became a member of the Church in Tonga when he or she was baptised. He said that 'when you're baptised they record your name, you're a member of the church.'[276] There was express evidence that a number of the plaintiffs had been baptised and this evidence was never seriously challenged by the defendant.[277] The second edition of the Fellowship's Constitution emphasised the importance of baptism, stating in the Chapter 5 that:

1. The Sacrament of Baptism represent the admission of people into the Holy Church of Jesus Christ, and has been undertaken since the beginning of the Church. The baptism of both adults as well as young children are welcomed because the Bible says, "...one died in place of everyone, so that they may receive the blessings as a result of the sacrifices made for the world..." As we appreciate God's will, any person is welcomed to join the Holy Church through baptism

262 Returning to the identification of the Fellowship's membership rule, in my opinion, the evidence does not establish that voting at quarterly meetings was the defining right of Fellowship membership or that only persons who had attained Lotu Fehu'i status were members. The evidence establishes that quarterly meetings were primarily intended to be spiritual meetings of Lay Preachers and Class Leaders being persons of Lotu Fehu'i, Akonaki and Malanga status, but were more widely attended because they were held immediately after Sunday services. The timing of the holding of quarterly meetings led to people who had not attained Lotu Fehu'i status staying on for them, and on some occasions voting at them. Issues affecting the Fellowship that were not strictly spiritual in nature were sometimes discussed.

263 As I have mentioned, the defendant argued that for a person to be a member of the Fellowship, they had to have been able to vote at meetings, but from 1984 the Fellowship Constitutions only specified who could vote at annual general meetings, being active members for three months. In addition, there is no evidence that annual meetings were held in the Fellowship's first years, until probably the meeting of 16 October 1983. The evidence is that at meetings of the Fellowship, or congregational meetings, persons who were not Lotu Fehu'i voted on whether to adopt the 1984 and 1986 Constitutions and on whether to purchase the Werribee property. The balance of the evidence suggests that a person did not have to be Lotu Fehu'i to vote at other congregational meetings.

264 In addition, a number of the plaintiffs' witnesses said that there was no requirement that a person had to have attained the status of Lotu Fehu'i to become a member of the Fellowship. While some defendant's witnesses said the contrary, I prefer the plaintiffs' witnesses, who included the Fellowship's Secretary, Mr Tautalanoa and Treasurer, Mr Grima. At the very least, in view of the conflict of evidence, I cannot find that the Lotu Fehu'i custom and practice on which the defendant relied were established, well-known and unquestioned.

265 I do accept that generally office-bearers in the Fellowship were Lotu Fehu'i. An important exception was Ms Grima, the Treasurer from 1983, who became Lotu Fehu'i only in 1986.[278] I do not, however, consider that because this practice had been adopted in respect of office-bearers it follows that only Lotu Fehu'i could be members.

266 I consider that the Fellowship Constitution did not link membership to Lotu Fehu'i status. In my opinion, the defendant's submissions would introduce that link without justification. They would do so in a circular manner by arguing that a member must be able to vote and hold office, that only Lotu Fehu'i can vote and hold office and therefore only Lotu Fehu'i can be members. I do not think that proposition is established by the evidence.

267 I accept the defendant's submission that the criteria for membership must be capable of functioning as a viable admission rule. I accept that entry into the membership compact cannot arise without some commitment from an applicant to support the Fellowship's, and now the Association's, purposes and abide by its rules, and without some agreement or consent from the existing members to bind themselves to the new member.

268 I have concluded previously that the Fellowship's apparent failure to maintain a Registry Book did not prevent people from becoming members. The plaintiffs who gave evidence claiming to have been Fellowship members had been active in it and its church services by joining a class group, making significant financial contributions and assisting in other activities. They had often been welcomed by the Minister. They were often a relative of other participants in the Fellowship. They were 'active' in the Fellowship to use the adjective in rule 4, dealing with the Election of Office-Bearers, in the 1984 Constitution. They had all been baptised.

269 The defendant contended that the plaintiffs had not identified the membership rule on which they relied. I do not accept that contention. The plaintiffs' case in their pleading, submissions and evidence was based not on names in a Registry Book, although that provision was pleaded. Rather, in essence, the case was based on actions that demonstrated the plaintiffs' active participation in the life of the Fellowship, the Association and the Church, and the acceptance of them as members by the Fellowship.

270 The plaintiffs pleaded in support of their claim that the disputed founding members and post incorporation members were members of the Fellowship or the Association because: that they were baptised into the Church, were welcomed into the Church by the then Minister in open congregation, participated in the life of the Church in that they were assigned to cell groups by the then Minister and were involved in fundraising for the Church, engaged in pastoral care, attended Church services and were active in the congregation and had never resigned.[279]

271 They also pleaded the membership requirements of the 1991 rules which replicate many of these matters that demonstrate active participation and acceptance by the Association. However, because of the constraints on admission to membership as a result of the incorporation of the Association, the parties agreed that the procedures of its rules, including Model Rules, had to be followed, but were not. Accordingly, it is agreed that there were no new members of the Association between incorporation and 18 July 2015.

The finding on membership rule during the Fellowship period

272 I find that, upon consideration of the Fellowship's rules, the membership rule applying during the Fellowship required at least 3 months active participation in the Fellowship's activities by baptised persons, as demonstrated by the actions of regular attendance at church services and allocation to, and regular attendance at, class group meetings.

273 The 3 months requirement was the same as the requirement in the Constitution for a member to be able to vote. The actions of regular attendance at church services and at a class group by a baptised person demonstrated active participation in the Fellowship and acceptance of that active participation by the Fellowship. In most circumstances, the requirement that participation be accepted was demonstrated by the person performing the acts of participation, acts which spoke for themselves, and did not require the Fellowship to acknowledge formally that participation. However, the Minister or Secretary accepted and facilitated that active participation by allocating the person to a class group. The evidence of active participation may have included other actions, but baptism, regular attendance at church services and allocation to, and regular attendance, at class group meetings were essential to be a member of the Fellowship. I consider that the requirements of membership that I have identified give effect to and implement the membership rule of the Fellowship as contained in the Constitution. They particularly give effect to the membership rule in the 1986 second edition of the Constitution, which stated in part that 'membership is open to anyone wishing to join'. The matters which I have identified enable a person's 'wish to join' to be evaluated. The second part of the membership rule required that 'names must be registered and listed in the Registry Book' and I have found that the plaintiffs have not proved Exhibit Y to be the Registry Book. But, I have explained why even if the Registry Book was not maintained, that does not mean that a person could not have become a member of the Fellowship.

274 Another important issue is the identification of the means by which persons who were members ceased to be members of the Fellowship and later the Association. This issue is important because the defendant argues that some persons who its accepts had been founding members have ceased to be members.

275 The suspension of a person and the removal of their name from the Registry Book was one means provided in the Fellowship's Constitution for a person to cease to be a member, but the rules were otherwise silent as to cessation of membership.[280]

276 The defendant contended that a clear custom and practice existed about cessation of Fellowship membership. A person of Lotu Fehu'i status ceased to be a member if their membership was removed because they had breached behaviour guidelines of the Tongan Church, or if at a quarterly meeting it was noted and recorded that they had left the congregation, for example, by moving to another church or interstate.

277 There was no submission about how the Church could end the active participation in the Church of persons who were not Lotu Fehu'i, who had breached behaviour standards. The plaintiffs, as I understood them, did not accept the defendant's submission, but I consider that it was supported by the custom and practice to which I now refer.

278 I accept the defendant's contention that the consistent practice of the Fellowship was that a person ceased to be a member if they breached behaviour standards, left the Church or Fellowship to join another church, moved away or did not attend regularly.

279 I accept that members of the Fellowship or Association could cease to be members by inertia or by failing to participate in the life of the Church. Mandie J found in Underbank Country Club Inc (in liq),[281] that after many years of non-payment of subscription and/or general inactivity by a person, that person's membership could be seen to be abandoned. To similar effect, in In Re Sick & Funeral Society of St John's Sunday School, Golcar, Megarry J said:[282]

...There can be no magic in the word 'resign,' nor in whether the resignation is written or oral. The essence of the matter seems to me to be whether the member has sufficiently manifested his decision to be a member no more. I cannot see why such a manifestation should not be by conduct instead of by words: the only question is whether the member's decision has been adequately conveyed to the society by words or deeds. In short, in addition to resignation by words, I think there may be resignation by conduct; and I do not see why in a proper case a sufficiency of inertia should not constitute resignation by conduct.

Consideration of the plaintiffs' claims to membership

280 Twelve of the plaintiffs were admitted founding members and were described as the paragraph 10 plaintiffs, because their claims were pleaded in paragraph 10 of the statement of claim. The defendant says that six of them ceased to be members prior to 1991, because they had left the Church or moved away to another location. They were the eleventh, twelfth, fifteenth, sixteenth, twenty-first and twenty-seventh plaintiffs.

281 The defendant's defence to the plaintiffs' final statement of claim, the seventh amended statement of claim, contained a Schedule 1 listing 59 persons. It asserted that those persons numbered 1-41 whose names were not struck through were the founding members at the time of incorporation who were still living. There were 17 people in that category. It denied that the persons numbered 42-59 were founding members. The Association asserted that those persons whose names were struck out were not current members of the Association.

282 In Schedule 2 to the Defence, the defendant listed the persons who it said were the current members of the Association. They were the 17 founding members referred to in Schedule 1 and 67 persons under the heading 'Members admitted after July 2015'. However, I find in this judgment that the July 2015 rules were not validly adopted, and therefore those persons may not be members.

283 The plaintiffs' witnesses gave evidence of who they understood the current members of the Association to be. Fohe Tautalanoa, who was Secretary of the Fellowship at the time, listed 59 persons who he said were the persons who immediately prior to the incorporation of the Association were members of the Fellowship and were founding members of the Association as at 3 March 1991.[283]

284 Mr Tautalanoa referred to Schedule C to the plaintiffs' sixth further amended pleading, headed 'Current Members of Association Above the Age of 18 years' and stated that to the best of his knowledge that it listed the current members of the Association.[284] Schedule C lists 132 persons, the majority attached to Werribee Parish, but others worshipping at Sunshine and Dandenong parishes.

285 As discussed during the hearing, I consider that at this point that I can only determine the status of the plaintiffs' claims to membership.

286 At this point, it is relevant to note that in 2006 a dispute arose between the then Head Steward of the Church, Uele Tu'ulakitau and Minister Vaotangi. Uele Tu'ulakitau was removed from his position as Head Steward and as a result, he and about half the congregation left and joined a new Uniting Church that he set up in Altona.[285] An issue arises whether a number of those who were part of the 'walk out' remained as founding members or other categories of members.

287 There are six founding members whom the defendant alleges left the Association and ceased to be members:

(a) The eleventh plaintiff, Mele Loisi Latu, who left in 2006. Ms Beeson gave evidence that at the March quarterly meeting Mele Latu had her status as Akonaki removed following a vote of members and she stopped attending services or meetings thereafter.[286] Minister Tu'akoi said that she was one of Uele Tu'ulakitau's supporters;[287]

(b) The twelfth plaintiff, Vai Paua, who was Uele Tu'ulakitau wife's sister-in-law, who stopped attending services and meetings and left in 2006[288];

(c) The fifteenth plaintiff, Ana Finau, who left in 2006[289];

(d) The sixteenth plaintiff, Fisi'iahi Tu'ualakitau, who was Uele Tu'ulakitau's wife left in 2006.[290] After the quarterly meeting at which Uele Tu'ulakitau was removed from his position as Head Steward she did not attend services;[291]

(e) The twenty-first plaintiff, Mohalata Walls, who left in around 1997 to move to Queensland.[292] Ms Beeson, who is Ms Walls' cousin, confirmed that this had occurred.[293]

(f) The twenty-seventh plaintiff, Maryanne (Meleane) Ford, who left in 1997.[294] Mr Tu'akoi said that he attended a quarterly meeting in March 1997 when Meleane Ford announced that she was leaving the Church to join another Church in Melbourne. She has not attended services in the Melbourne Church since that time.[295]

288 The defendant argued that, by abandoning the Association, those plaintiffs ceased to be members. It acknowledged that the Association's 1991 Rules are silent on the issue of cessation of membership, and that the applicable Model Rule - rule 6 - says nothing about abandonment of membership. As previously mentioned, it argued that the common law must be considered to determine what rule governs abandonment of membership. The relevant common law rule has already been discussed, that general inactivity by members over a period of time can lead to cessation of membership. In light of this rule, the defendant submitted that the plaintiffs who walked out of the Association ceased to be members.

289 At trial, the plaintiffs did not call any of those plaintiffs who are said to have walked out in 2006 and therefore did not dispute the defendant's evidence on this issue.[296] Rather, they argued that members could not cease to be members due to non-attendance. They relied upon evidence suggesting that the Association had never applied such a rule regarding cessation of membership through inactivity, and referred to the evidence of Mr Tu'akoi that members whose votes the defendant relied upon at the 2015 meeting had also not attended the Church for many years, and were thus 'equally guilty of inertia'.[297] The plaintiffs also questioned whether the common law rule could apply to the Association or whether the 1991 Rules, as supplemented by the Model Rules, provided an exhaustive code.[298]

290 I find that each of the six plaintiffs listed above has ceased to be a member of the Association. They were part of a walkout and joined another Church, and that conduct is inconsistent with continuing membership of the Fellowship or Association.

Did any of the admitted founding members cease to be members because they did not reply to the Secretary's letter of 27 July 2015?

291 The defendant contended that the other six founding members ceased to be members because they did not respond to the Secretary's letter of 27 July 2015. They were: Ana'uta Grima, the fifth plaintiff; Vika Tautalanoa, the eighth plaintiff; Tevita Kafoika, the fourteenth plaintiff; Falepuna Kafoika, the nineteenth plaintiff; Mele Lino, the twentieth plaintiff and Fohe Tautalanoa, the twenty-fifth plaintiff.

292 The Secretary's letter of 27 July 2015 was sent to the persons whom the defendant considered were founding members, and it required that they respond confirming that they wished to remain a member of the Association.

293 Mr Wall gave the following evidence about the confirmation of membership letters. On 27 July 2015, at the request of the Secretary, Leonard Mataele, he personally addressed and then delivered to the post office letters signed by the Secretary and addressed to each of the members who had walked out of the July 2014 quarterly meeting, that is the members who had since occupied the Werribee premises from August 2014, requesting that they confirm in writing that they wished to remain members of the Association. He saw the post office stamp each letter and checked the names of each of the persons to whom the letters were sent against the list of persons who were then thought to be members.[299] There appears to have been 43 people who received the letter.[300]

294 The letter, which was drafted by Mr Wall, read:

Dear [Name of Recipient]

Inspection of the Register of Members and Minutes and Voting Lists and request to confirm your membership of the Free Wesleyan Church of Tonga in Australia (Victoria) Incorporated

As secretary of the Free Wesleyan Church of Tonga (Victoria) Incorporated ("the Association") I wish to advise you of your right to inspect the Register of Members and the Minutes of the Association at all reasonable times.

I advise that the Register of Members is correct and kept and maintained by me up to date. Its correctness is supported by Minutes of the Association and Voting Lists of Members, including the Minutes and Voting Lists of Members recorded, kept and maintained by Pita Ofamo'oni when he was secretary from 2003 to 2013.

If you wish to inspect the Register of Members, please contact my delegate, the Public Officer (Communications) by letter sent to him at 2-20 Northview Drive, Sunshine West VIC 3020, and he will be pleased to assist you.

I also request you to confirm to me in writing that you wish to remain a member of the Association.

Yours sincerely,

LEONARD MATAELE

Secretary

295 The letters were thought to be sent under a provision of the new Model Rules dealing with 'resigning as a member', which stated that:

(1) A member may resign by notice in writing given to the Association.

(2) A member is taken to have resigned if -

(a)the member's annual subscription is more than 12 months in arrears; or

(b) where no annual subscription is payable -

(i) the Secretary has made a written request to the member to confirm that he or she wishes to remain a member;

(ii) the member has not, within 3 months after receiving that request, confirmed in writing that he or she wishes to remain a member.

296 The plaintiffs argued that this letter should be disregarded, and that no member could be deemed to have resigned under rule 17(2)(b)(ii). They argued that the Secretary's letter did not indicate that a member might be struck off the register of members or be taken to have resigned if they did not respond to the letter within three months confirming that they wished to remain a member. The letters' request that they confirm their wish to remain a member was contained in a single sentence at the end of a long letter. In their submission, the Secretary acting reasonably ought to have stated in clear terms the repercussions of not responding to the deadline of three months.[301] But he did not.

297 The plaintiffs also submitted that if the 18 July 2015 resolutions were invalid and set aside then the Secretary had no power to write the letter of 27 July because he was not an original founding member of the Association and therefore not a member of the Church.[302]

298 Thirdly, the plaintiffs argued that it was absurd and unreasonable for the defendant to send the Secretary's letters asking for confirmation of membership, because of the dispute existing at the time. The letters were sent in the middle of a protracted dispute in which the plaintiffs, some of whom received the letter, were asserting that they were members of the Church, including by attempting to assert their right to vote at the meeting.[303]

299 I consider that the letter was not valid as it gave the recipients no notice of the consequence that they would be taken to have resigned, if they did not reply to it confirming that they wished to remain as members.

300 Although the plaintiffs did not plead that the Secretary's letter was invalid, the defendant relied on the letters as a defence to show that the six plaintiffs had ceased to be members,[304] and the defendant must establish that it could rely on the letter. The plaintiffs' counsel made submissions attacking the validity of the letter.

301 In my opinion, it was a requirement of procedural fairness or natural justice that the plaintiffs who received the Secretary's letter who were founding members were told that if they did not reply to it confirming that they wished to remain members, then they would be taken to have resigned. They were entitled to be notified of that potential consequence. Their membership of the Association was a valuable right, and they were part of cohort who were in dispute with the Association and the controlling group to which Mr Wall and the Secretary, Mr Mataele, belonged. The Association could not assume that the members to whom the Secretary's letter was sent knew the consequences of not replying to it. In those circumstances, I consider that the letter was not a valid exercise of power because it did not include a statement of those consequences. In the context existing in July 2015 it was not a reasonable use of the power conferred by the Model Rules and was an unfair procedure. Requirements of natural justice and procedural fairness have long applied to the removal of persons from membership of associations.[305] Powers conferred by statue or the Model Rules made as part of a statute must be exercised reasonably.[306] Take Ms Grima as an example. She had been a founding member of the Fellowship, a member of it and the Association for about 32 years, and its Treasurer for many of those years. Mr Wall and the Secretary knew from her attendance at the meeting of 18 July that she remained or wished to remain actively involved in the Association. It would be quite an unfair outcome to find that she should be taken to have resigned because she did not reply to the Secretary's letter. None of the six plaintiffs whose membership is said to have ceased because they did not confirm that they wished to remain a member of the Association had sent a letter of resignation of their membership, nor had they engaged in other conduct, either positive, or by inertia, from which their resignation could be implied. In my opinion, for those reasons the letter had no effect. The consequence of that is that the six plaintiffs whose resignation is said to depend on that letter remain founding members of the Association.

The disputed founding members - the paragraph 12 plaintiffs

302 The next group of plaintiffs whose membership requires consideration was described as the 'disputed founding members' or the paragraph 12 plaintiffs. They were the ninth, tenth, thirteenth, twenty-second, twenty-third, twenty-fourth, twenty-sixth, twenty-eighth, twenty-ninth and thirtieth plaintiffs. Of these 'disputed founding members' only Mr Halahala gave evidence. His position raises separate issues.

303 The first question concerning these disputed founding members is whether they produced evidence that they had become and remained members of the Fellowship at the incorporation of the Association. The onus of proving their continued membership lay on them.

304 The defendant's case was that the ten disputed founding members had not remained members because they had not attained Lotu Fehu'i status, and that they had also, with the exception of the twenty-sixth plaintiff Mr Sione Halahala, ceased their involvement with the Church and should be taken to have resigned their membership.

305 Secondly, the defendant relied on what it said were admissions in a draft version of the sixth amended statement of claim dated 11 August 2017 that the plaintiffs by their counsel delivered to it, when the plaintiffs were seeking further leave to amend their statement of claim. The draft pleading contained an estoppel plea based on the plaintiffs' conduct in assisting the Church. It provided particulars of their involvement in the Church and stated directly or indirectly that their involvement had ended in or before 2006. Leave was not given for this draft pleading to be delivered. But, whether or not those draft pleadings should be taken as admissions, there is no evidence from any of those plaintiffs, with the exception of Mr Halahala, that they remained a member of the Association.

306 The admissions and other evidence that the defendant seeks to rely on in respect of those ten plaintiffs are:

(a) The ninth plaintiff, Sitiveni Fa, who the defendant says was not a member of the Fellowship at the incorporation date and left in 2006;

(b) the tenth plaintiff, Apikale Fa, who the defendant says was not a member of the Fellowship at the incorporation date and left in 2006;

(c) The thirteenth plaintiff Semisi Paua, who the defendant says was not a member of the Fellowship at the incorporation date and left in 2006 as part of the walkout;[307]

(d) the twenty-second plaintiff, Seneti Fau, who the defendant says was not a member of the Fellowship at the incorporation date and left in 1994;

(e) the twenty-third plaintiff, Pausina Taufa, who the defendant says was not a member of the Fellowship at the incorporation date and left in 1995;

(f) The twenty-fourth plaintiff, Maka Tu'ulakitau who was Uele Tu'ulakitau's son, who the defendant says was not a member of the Fellowship at the incorporation date and left in 2006;[308]

(g) the twenty-sixth plaintiff, Sione Militoni Halahala, who the defendant says was not a member of the Fellowship at the incorporation date because he was not Lotu Fehu'i as at that date. The evidence does suggest that he became Lotu Fehu'i in 1994.

(h) The twenty eighth plaintiff, Tuipulotu Ofahengaue, who the defendant says was not a member of the Fellowship at the incorporation date and left in 1993;[309]

(i) The twenty-ninth plaintiff, Vili Ofahengaue, who the defendant says was not a member of the Fellowship at the incorporation date and left in 1995;[310]

(j) the thirtieth plaintiff, Kolini Taufa, who the defendant says was not a member of the Fellowship at the incorporation date and left in 1995.

307 The plaintiffs did not admit the defendant's evidence that nine of the disputed founding plaintiffs had ceased involvement with the Church and had ceased to be a member. But I informed counsel that I was likely to accept the defendant's evidence if there was no contrary evidence.[311] The plaintiffs, with the exception of Mr Halahala, provided no evidence contradicting the evidence relied on by the defendant that these plaintiffs had ceased to be involved with the Church.

308 I accept that evidence in respect of all of those plaintiffs save for Mr Halahala, the twenty-sixth plaintiff, who has remained an active member of the Church and who has not ceased to be actively involved with the Church.[312] Although I do find that Mr Halahala did not become Lotu Fehu'i until 1994, I consider that under the membership rule as I have described it, he was a foundation member of the Fellowship and remains a member of the Association.

309 The third category of plaintiffs are five persons who the defendant pleads could only have become members after the Association was incorporated in 1991 and were referred to as the paragraph 13 plaintiffs. They are as follows:

(a) The first plaintiff, Christine Moala;

(b) The third plaintiff, Tui Vea;

(c) The fourth plaintiff, Toakase Kalu;

(d) The sixth plaintiff, Latusilatolu Taunisila and

(e) The seventh plaintiff, Pita Ofamo'oni.

The second plaintiff Haniteli Tautevalu, came within this category but has died.

310 These plaintiffs, together with the twenty-sixth plaintiff Mr Halahala, who was also one of the disputed founding members, are the estoppel plaintiffs, meaning that they rely on a plea of estoppel to prevent the defendant denying their membership. That plea is considered later in this judgment.

311 However, both parties ultimately agreed that no new members were admitted pursuant to the 1991 Rules in force between incorporation and 18 July 2015.[313] But I should set out the parties' position before they reached that agreement.

312 The plaintiffs initially pleaded that the 'paragraph 13 plaintiffs' became members of the Church after 1991. They pleaded that they were admitted as members by virtue of their baptism into the Church, their welcome into the Church, and their active participation in Church life.[314] These were the requirements for membership contained in section 3 of the Association's 1991 Rules. However, this pleaded claim was not pursued, because there was no evidence that the paragraph 13 plaintiffs or anyone else complied with the rules concerning written membership applications of the Association after its incorporation and before 18 July 2015, when the Association purported to adopt new rules. Section 3 of the Association's 1991 Rules provided guidance on the eligibility requirements for prospective members, however they did not prescribe a process by which eligible persons could apply for membership and be added to the Register of members. As the 1991 Rules made no such provision, the Model Rules applied.[315] Relevantly, section 4 of the applicable Model Rules prescribed a membership application process whereby an applicant was required to lodge a written application with the Association's secretary.[316] As none of the paragraph 13 plaintiffs did that, none of them could have been, or were, admitted as members of the Association after its incorporation. I accept that this is the position of the parties. Accordingly, no person joined the Association between 1991 and 2015.[317] Therefore, I also find that none of the five paragraph 13 plaintiffs became a member unless by way of estoppel.

313 I would not have accepted the defendant's alternative submission made in respect of the third, sixth and seventh plaintiffs, which was that they had ceased to be members because they did not respond to the Secretary's letter of 27 July 2015. In my opinion, for the reasons that I have previously given, they were under no obligation to do so as the letter was not a valid exercise of power. The post incorporation paragraph 13 plaintiffs also contended that the defendant was estopped from denying their membership, which claim I consider and reject below.

314 The Association convened an annual general meeting on 18 July 2015. One of the issues is whether that meeting was validly convened, with notice being given to those persons entitled to receive it. There is also the question of whether that meeting validly resolved to adopt the 2012 Model Rules with some modifications.

315 The meeting first resolved "[t]o revoke the present Rules of the Association, being the Rules registered at the time of the Association on 4 March 1991, other than:

the name of the Association, and

the purposes of the Association namely:

to promote religion and to uphold Christianity and Christian teachings and principles of the Bible as observed and practised by the Free Wesleyan Church of Tonga in Tonga.[318]

316 The meeting also passed the following special resolutions:

2. To insert the Note "Note: The Association adopts the text of the Model Rules of the Associations Incorporation Reform Regulation 2012 with amendments, with omissions and inclusions." before the TABLE OF PROVISIONS.

3. To adopt the text of the Model Rules of the Associations Incorporation Reform Regulation 2012 as amended by the following with amendments as follows:[319]

317 The meeting also adopted a further thirty seven special resolutions by way of amendment to the 2012 Model Rules. For example, Resolution 20 inserted the following amendments to clause 16(3) of the model rules, adding that a person ceased to be a member:

(a) takes or continues any legal proceedings against the Association or any Committee member; or

(b) gives a document or statement that supports a member or former member in any legal proceedings taken by that member or former member against the Association or against any Committee member.

318 These amendments also inserted the following definition of the phrase 'application for membership':

means a written signed application for membership by a person who wishes to become a member of the Association, who supports the purposes of the Association and who agrees to comply with the Rules of the Association, who has been baptised, and who has given a testimony in person before the Local Church Group, followed by the giving of testimony before the members of the Association whose names are on the Register of Members, and who has been accepted for such membership by a majority of such members voting in favour of the person's acceptance of membership.[320]

319 The amendments also introduced a category of 'Associate members' who are:

persons who attend church services and functions on the Associations premises, who have not made a written application for membership followed by the giving in person of their testimony, and who have not been approved by the Committee to be members.

320 Minister Tu'akoi agreed that one of the purposes of the meeting was to make it clear that being Lotu Fehu'i was a condition of membership.[321]

321 The modified Model Rules purportedly adopted at the meeting allowed the defendant to send letters asking a number of the plaintiffs to confirm their wish to continue as members, which if left unanswered without a letter confirming that the person wished to remain a member for three months would constitute their resignation. This provision allowing these letters was contained in the 2012 Model Rules themselves and was not one of the bespoke modifications the defendant made to them.

322 Resolving the issue of the validity of actions taken at the meeting of 18 July 2015 requires consideration of at least three questions: first what were the rules governing the meeting; secondly, did irregularities occur in the conduct of the meeting; and thirdly, if irregularities occurred were they such that both the meeting and the resolutions there should be declared invalid.

323 An issue in this case is whether the Association's rules governing the 18 July 2015 meeting were supplemented by the Model Rules made under the 1981 Act, or the Model Rules made under the 2012 Act.

324 As an association incorporated under the 1981 Act, the Association was originally subject to the Model Rules made under Regulations accompanying that Act (the 'old Model Rules').[322] The old Model Rules supplemented an association's own rules if those rules did not make provision for a matter covered by them.[323] This supplementation occurred from the date of the Association's incorporation on 4 March 1991. This changed when the 2012 Act came into effect. Under the regulations accompanying the 2012 Act, new Model Rules were introduced (the 'new Model Rules'). In a slightly different manner, these new Model Rules supplemented an association's rules where they do not provide for matters listed in Schedule 4 of the 2012 Act.[324]

325 The question of whether the old or new Model Rules applied to the meeting of 18 July 2015 is relevant for the following reason. Under rule 19 of the old Model Rules, members were entitled to appoint proxies provided that notice of that proxy was given to the Secretary 'no later than 24 hours before the time of the meeting in respect of which the proxy is appointed'. Conversely, rule 34 of the new Model Rules only requires forms appointing proxies to be sent 'no later than 24 hours before the commencement of the meeting' where such proxy forms are 'sent by post or electronically'. Otherwise, under the new Model Rules a form appointing a proxy need only be given to the Chairperson 'before or at the commencement of the meeting'.

326 The question of whether Ms Moala delivered proxy forms 24 hours prior to the 18 July 2015 meeting is in contention. According to the defendant, and if as they submit the old Model Rules apply, rule 19 would render any delivery of the proxies after 11.00am on 17 July 2015 invalid. The defendant's evidence suggested that the proxies were delivered after this time. On the other hand, if the new Model Rules applied as the plaintiffs contended, then the proxy forms would be valid provided that Ms Moala delivered them before the commencement of the meeting.

327 The answer to whether the old or new Model Rules applied requires consideration of the transitional provisions contained in Schedule 4 of the 2012 Act. Transitional provisions were necessary as at the time of the 2012 Act's introduction there were many organisations already operating under their old rules, the old Model Rules, or a combination of both.

328 Clause 4(1) of Schedule 4 to the 2012 Act provided that associations previously incorporated under the 1981 Act were to be taken to be incorporated under the 2012 Act upon commencement day. The term 'commencement day' was defined as the day on which s 224 of the 2012 Act came into operation,[325] a day which was in turn fixed as the day after the day on which the 2012 Act received royal assent.[326] The 2012 Act was assented to on 1 May 2012, meaning the commencement day was 2 May 2012.

329 Clauses 7 and 8 to Schedule 4 of the 2012 Act are of particular relevance to the current dispute.

7 Incorporated association may operate under old rules

(1) Subject to sub-clauses (2) and (3), an incorporated association may continue to operate under the rules of the association as in force immediately before the commencement day (the old rules) until the rules are altered in accordance with clause 8.

(2) While an incorporated association is operating under its old rules, if there is an inconsistency between those rules and any provision of this Act, the provision of this Act prevails except as provided in this Schedule.

(3) If the old rules of an incorporated association are the old model rules, the association may only operate under those rules for 12 months after the commencement date or until the rules are altered in accordance with clause 8.

(4) If, after the expiry of the period of 12 months commencing on the commencement date, an incorporated association operating under the old model rules has not taken either action referred to in clause 8(2), it is taken to have adopted the model rules under this Act and its old rules are of no effect.

(5) If -

(a) an incorporated association is operating under its old rules by virtue of sub-clause (1); and

(b) under those old rules there is an office holder of the association, separate to the office of public officer, who has the title of secretary -

any reference in this Act to the secretary of an incorporated association is not to be taken as a reference to that office holder.

(6) The Registrar may, in writing, approve changes to the composition of the office holders of an incorporated association that would otherwise be contrary to the rules of the association if satisfied those changes are necessary to facilitate the transition of the association from its old rules to rules that comply with this Act.

8 Alteration of old rules

(1) For the purposes of this clause, the rules of an incorporated association operating under its old rules are altered when -

(a) the association has notified the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or

(b) the Registrar, subject to subclause (3), has approved the alteration of the association's rules under section 50.

(2) Within 12 months after the commencement day, an incorporated association operating under the old model rules must -

(a) notify the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or

(b) apply in accordance with section 50 for the approval of the alteration of its rules.

(3) The Registrar must not approve the alteration of the old rules of an incorporated association unless satisfied that all the rules as altered comply with this Act.

330 The term 'old model rules' is defined in cl 1 of Schedule 4 to mean 'the model rules made under the Associations Incorporation Act 1981'.

Defendant's submissions that the old Model Rules applied to the meeting

331 The defendant submitted that clause 7(1) permitted the Association to rely upon the old Model Rules, which they had during the meeting. The Association's 1991 rules were 'old rules' within the meaning of the clause, it submitted, and clause 7(1) therefore allowed them to operate under those rules until they were altered under clause 8, which occurred only at the 18 July 2015 meeting. They therefore submitted that the old Model Rules were binding and applicable up until that alteration, and governed the conduct of the meeting at which the alteration took place. Therefore, any proxies had to be delivered to the Secretary by 11.00am on 17 July 2015.

332 With respect to clause 7(3), the defendant submitted that reference to the 'old model rules' in that clause referred only to associations who made 'exclusive' use of the old Model Rules, and did not apply to an association that only relied upon the old Model Rules to supplement their own rules. The defendant urged the Court to read the word 'exclusively' into cl 7(3), arguing that 'the scheme operates to distinguish between associations which have created bespoke rules for themselves and ones that have gone along with the existing model rules scheme', a contrast which they say is made clear by the distinction between the definitions of 'old rules' and 'old model rules'. The Association had its own rules, which at times were supplemented by the old Model Rules by virtue of s 21(3) of the 1981 Act, but they never exclusively applied the old Model Rules. It therefore submitted that clauses 7(3), 7(4) and 8(2), which required either adoption of the new Model Rules or proposed alteration within 12 months, were not applicable to it.

Plaintiffs' submissions that the new rules applied to the meeting

333 On the other hand, the plaintiffs submitted that the new Model Rules had taken effect and supplemented the Association's 1991 rules by the time of the meeting. They characterised the issue for determination as requiring consideration of the position of an association which had its own rules, which were incomplete and supplemented by Model Rules.

334 The plaintiffs submitted that permitting an association to rely indefinitely upon the old model rules, as the defendant contended it could, would be an improbable reading of the provisions, and would allow an organisation to continue partially operating under the old Model Rules indefinitely, potentially years after those rules and the legislation they were made under had been repealed. The 12 month leeway period stipulated under clauses 7(3), 7(4), and 8(2) was, in the plaintiffs' submission, uniform across all associations, and operated to render the old Model Rules inapplicable after 12 months, whether those rules were being applied exclusively or merely to fill gaps. The plaintiffs submitted accordingly that, after that 12 month period, the Association's rules were supplemented by the new Model Rules instead of the old.

335 In my opinion, the new Model Rules applied to the meeting. The effect of the defendant's analysis would be that the transitional provisions in the 2012 Act would permit the survival of the old Model Rules indefinitely in organisations who had partially relied upon them at the commencement of the 2012 Act, even though those old Model Rules were repealed by the 2012 Act and replaced with modernised, updated rules. Those new Model Rules have many important differences to the old Model Rules that they replaced. For example, the new Model Rules provide for both the rights of members and the powers of an association in much more detail than the old Model Rules,[327] and contain more detailed procedures governing the resignation of members.[328] They provide for an association's purposes to be listed in its rules.[329] They also provide for the establishment of disciplinary subcommittees,[330] different circumstances triggering the removal of committee members from office,[331] and prescriptive requirements for the refilling of the Secretary's position.[332] This indefinite continued application of the old Model Rules would occur despite the fact that section 21(3) of the 1981 Act, which gave those old Model Rules their gap-filling effect, had been repealed and was no longer operational.

336 Additionally, on the defendant's reading, associations relying in part on the old Model Rules would be given an indefinite transition period, contrasted with a 12-month transition period for associations who relied on them in full. This is despite the fact that associations that relied on the Model Rules exclusively would presumably have more need of a transition period, given that they would be much more affected by a change to the Model Rules than those who had only relied on them in part. Why Parliament would have given a much longer transitional period to associations with less need for one is unclear. It is difficult to see how Parliament could have intended such a distinction.

337 The word 'exclusively' should not be read into clause 7(3). While the defendant argued that such a reading was necessitated by the distinction that the 2012 Act makes between associations operating under the old Model Rules in part and those operating under them exclusively, if the word 'exclusively' is not read in to clause 7(3) then no such distinction is apparent. That distinction cannot, therefore, be a reason for reading it in. Further, the definitions of 'old model rules' and 'old rules' are clearly overlapping categories, of which rules might be one, the other, or both. No strict division is apparent from them.

338 Further, the words of clause 7(3) itself indicate that it applies only 'if the old rules of an incorporated association are the old model rules', 'old rules' being the rules in force in the association immediately before commencement day. It is unclear whether 'the old rules' in this clause means all of the rules in force in the association, or instead means any of those rules. If the latter interpretation is adopted, and if clause 7(3) is read as 'if any of the old rules of an association are the old model rules, the association may only operate under those rules for 12 months after the commencement date' then the distinction between non-exclusive and exclusive uses of the Model Rules falls away, as the association's old rules will be subject to clauses 7(3) and 7(4) only to the extent that those rules are the old Model Rules. If any of any Association's rules are the old Model Rules, whether those old Model Rules constitute all, some or only one of the rules in force at the commencement day, then the Association can continue operating under those old Model Rules for 12 months, and after that is taken to have adopted the new Model Rules in their place. This interpretation avoids the problems detailed previously, and for that reason should be adopted. It best achieves the purpose of the transitional provisions. The words of a statute must be given a meaning that will promote its purpose see s 35(a) of the Interpretation of Legislation Act 1984.

339 Accordingly, the 12 month time limit in cl 7(3) applies to all organisations who were operating under the old Model Rules, whether they had adopted those old Model Rules entirely or whether, as in this case, those old Model Rules merely supplemented rules already in force. After that 12 month period elapsed, on 2 May 2013, the rules of such an association would be supplemented by the new Model Rules instead. Therefore, I conclude that the new Model Rules applied to the Association's meeting of 18 July 2015.

340 The plaintiffs challenged the validity of the 18 July 2015 meeting on the following grounds:

(a) The failure to send appropriate notices to all members notifying them of the meeting;

(b) The refusal to accept Ms Grima's and Ms Moala's proxies; and

(c) The counting of non-members' votes and participation of non-members in the meeting, an irregularity which appears not to have been pleaded.

341 The 1991 rules did not specify any notice requirements for general meetings, a matter which cl 19 of Schedule 1 of the 2012 Act says must be dealt with. Applying my finding about the effect of the transitional provisions, the new Model Rules therefore operated to fill this gap, especially rule 33, which provides that:

33 Notice of general meetings

(1) The Secretary (or, in the case of a special general meeting convened under rule 32(3), the members convening the meeting) must give to each member of the Association -

(a) at least 21 days' notice of a general meeting if a special resolution is to be proposed at the meeting; or

(b) at least 14 days' notice of a general meeting in any other case.

(2) The notice must -

(a) specify the date, time and place of the meeting; and

(b) indicate the general nature of each item of business to be considered at the meeting; and

(c) if a special resolution is to be proposed -

(i) state in full the proposed resolution; and

(ii) state the intention to propose the resolution as a special resolution; and

(d) comply with rule 34(5).

(5) Notice of a general meeting given to a member under rule 33 must -

(a) state that the member may appoint another member as a proxy for the meeting; and

(b) include a copy of any form that the Committee has approved for the appointment of a proxy.

343 Several of the plaintiffs confirmed during oral evidence that they received a notice of the meeting via post.[333] The defendant's case was that notice was sent to all those persons it considered were members, being all persons recognised by the Association as Lotu Fehu'i. Mr Wall stated that the records of the 18 July 2015 meeting listed "all the people that were sent their notices because they performed the roll call".[334] Those records indicate that of the plaintiffs only 10 - Tuia Vea, Ana Grima, Latusilatolu Taunisila, Pita Ofamo'oni, Vika Tuatalanoa, Tevita Kafoika, Falepuna Kafoika, Mele Lino, Fohe Tautalanoa, Sione Halahala - were informed of the meeting.[335]

24th June 2015

NOTIFICATION OF ANNUAL GENERAL MEETING

Dear Association Member,

Please find enclosed a Notice of Annual General Meeting for the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA (VICTORIA) INCORPORATED, for Saturday, 18th July 2015 at 11 am at the premises in Sunshine West.

The purpose of the meeting is to:

1. Confirm the minutes of the previous Special General Meeting.

2. To receive and consider -

1. the annual report of the committee on the activities of the association in the preceding financial year; and
2. The financial statements of the Association for the proceeding financial year.

1. Consider and vote upon proposed special resolutions to amend the Rules of the Association.

Please note that only properly registered Association Members may attend and vote at this meeting. Given the high level of conflict between some Members, A security person will be present at the premises to screen and admit entry of properly registered Association members into the meeting premises and to the meeting. As such please bring identification documentation in order to be permitted into the premises.

If you are unable to attend the meeting, you may appoint another registered member as your proxy. A form of Proxy is attached for completion, to be signed by you and may be returned to the Church Secretary in person or by post to the following address:

Attn: Mr Leonard Mataele

Association Secretary

Free Wesleyan Church of Tonga in Australia (Victoria) Inc.

2-20 Northview Drive

SUNSHINE WEST VIC 3020

345 Attached to the notice was a form to be filled out for the appointment of a proxy and a document detailing the text of each of the special resolutions proposed to be passed at the meeting.

346 The defendant conceded that it sent notices of the meeting only to those congregational participants who it considered to be members, namely all persons that it recognised at the time as Lotu Fehu'i.[336] Mr Wall said that a register of members was prepared for this purpose. Mr Wall then sent out notices on 24 June 2015 to each person listed in the register of members.[337] To be included on that register you had to be Lotu Fehu'i, and in some circumstances have handed in a written application form for membership. At first, on the basis of advice that the 2012 Act had commenced on 26 November 2012, the register contained the names of those who had become Lotu Fehu'i in the Melbourne church prior to 26 November 2013, as well as any persons who became Lotu Fehu'i after that day who had also completed a written application for membership.[338] Later, on further legal advice, he and the Association decided that an application form was required for anybody who had become a Lotu Fehu'i between 25 June 2012 and 26 June 2013.[339] Again, later in January 2016 and after the meeting it was decided that because new rules had been adopted everyone had to remake their application for membership.[340]

347 Whichever account is preferred, several of the plaintiffs did not receive any notice of the meeting. These included Christine Moala and the 15 plaintiffs whom the defendant alleges had left the organisation in or before 2006.[341]

348 However, rule 33(1) of the new Model Rules required notice to be sent to every member of the Association. My findings about the membership rule make it likely that a number of persons who were members did not receive notice of the meeting.

349 I do not however accept the plaintiffs' further submissions impugning the notice, which concerned the content of the notice or the identity of the person who signed and sent it.

350 Though not the subject of submissions, the law seems clear that notice requirements must be strictly complied with.[342] Where a meeting of a governing body has been convened, or as the case may be its business has been conducted, in breach of the rules with respect to the giving of notice to all members, in due time and with proper notification of business, or with respect to the numbers required to attend the meeting, the meeting is null and void to all intents and purposes and no business can be validly transacted at the meeting.

351 I find that notice of the meeting was not given to all members entitled to receive it, because the roll or list of members used to send notices was not compiled using the correct membership rule. Therefore the meeting was not validly convened and resolutions passed at it were invalid.

352 The 1991 rules did not specify any processes governing the voting of proxies at meetings, a matter which clause 18 of Schedule 1 of the 2012 Act says must be dealt with. The new Model Rules therefore operated to fill that gap, especially rule 34, which provided that:

34 Proxies

(1) A member may appoint another member as his or her proxy to vote and speak on his or her behalf at a general meeting other than at a disciplinary appeal meeting.

(2) The appointment of a proxy must be in writing and signed by the member making the appointment.

(3) The member appointing the proxy may give specific directions as to how the proxy is to vote on his or her behalf, otherwise the proxy may vote on behalf of the member in any matter as he or she sees fit.

(4) If the Committee has approved a form for the appointment of a proxy, the member may use any other form that clearly identifies the person appointed as the member's proxy and that has been signed by the member.

(5) Notice of a general meeting given to a member under rule 33 must -

(a) state that the member may appoint another member as a proxy for the meeting; and

(b) include a copy of any form that the Committee has approved for the appointment of a proxy.

(6) A form appointing a proxy must be given to the Chairperson of the meeting before or at the commencement of the meeting.

(7) A form appointing a proxy sent by post or electronically is of no effect unless it is received by the Association no later than 24 hours before the commencement of the meeting.

353 Rule 38(1)(b) is also relevant, as it enshrines the right for members to vote by proxy:

38 Voting at general meeting

(1) On any question arising at a general meeting -

(a) subject to subrule (3), each member who is entitled to vote has one vote; and

(b) members may vote personally or by proxy; and

...

354 I next turn to the dispute over precisely when and how the proxy forms were delivered.

355 Ms Moala was the proxy of her grandmother, for whom she possessed an enduring power of attorney.[343] Ms Grima was proxy for 43 other persons, who apparently considered that they were entitled to vote. Ms Moala collected the completed proxy forms. She said that she placed an A4 manila envelope containing the proxy forms in the Church's letter box at Sunshine at 9.30am on 17 July 2015,[344] having made sure to deliver it 'well and truly within the 24-hour timeframe' prescribed on the proxy forms and the notice of the meeting.[345] She then left. The Minister's residence is on the same site as the Church and church offices.

356 Ms Haitelensia Tu'akoi, the Minister's wife, who performed secretarial and administrative work for the Church, gave evidence that on 17 July 2015 she checked the letter box at approximately 10:30am and found an envelope addressed to the Church.[346] She said that it was a small, white envelope. [347] Her family shared the same locked letter box as the Church did. She then called Robert Wall, who had been assisting her with the organization of the meeting, and when he arrived soon after, she gave him the envelope.[348] She remained near the letter box talking to him and to the Association's steward Teputepu Matuisela for between 20 and 45 minutes. No mail was delivered during that time. However, she stated that she was not looking in the direction of the letter box during this conversation.[349] She would not have seen Ms Moala dropping any envelope off at 9.30am, as at that time she would have been taking her children to school.[350]

357 Mr Robert Wall gave evidence. He was a member of a legal sub-committee of the Association, and was in contact with solicitors regarding the dispute. His evidence was that upon arriving at the Sunshine church on 17 July 2015, at around 10.45am, Ms Tu'akoi handed him some mail. He initially said that he saw that it did not contain any proxy forms, but under cross-examination said that he could not have seen if it contained proxy forms at that point because it was not opened until later.[351] He said that he continued to talk to Ms Tu'Akoi and Mr Matuisela at the letter box until 11.20am.[352] He then handed the envelope to the Association's secretary, Mr Maetele, who opened it,[353] and it contained the enduring power of attorney given to Ms Moala by her grandmother.[354] Mr Wall said that he again checked the letter box at around 3.30pm, and found an envelope which he assumed contained further proxies, but he did not open it. He considered that any such proxies were invalid, as they had not been hand-delivered to the Minister or arrived by post 24 hours before the meeting's commencement as required by the old Model Rules.[355] He therefore placed this envelope back in the letter box and told no one about it.[356] He then locked the letter box,[357] to which only he and the Minister had keys.[358]

358 Mr Wall gave evidence that he had subsequently checked CCTV footage of the letter box area which showed Ms Moala delivering this second envelope at 12.41pm on 17 July 2015.[359] This footage was never tendered in evidence and I place no weight on it.

359 After considering the evidence I am not persuaded that Ms Moala delivered the envelope containing the proxies at 9:30am on 17 July or before 11:00am that day. My reasons for that conclusion are as follows.

360 The evidence establishes that two envelopes of relevance were delivered to the letter box on 17 July 2015. First was the envelope containing Ms Grima's power of attorney which Ms Tu'akoi removed at about 10:30am, and which had been delivered to the Church letter box more than 24 hours before the commencement of the meeting. Secondly was the envelope containing Ms Grima's proxies, which I am not persuaded was delivered before 11.00am. I accept Ms Tu'akoi's evidence in this regard that she removed the mail in the letter box an hour after Ms Moala's time of delivery as I found her evidence convincing. I have taken into account that Mr Wall behaved in a strange manner by placing the envelope containing Ms Grima's proxies back into the letter box, from which they were not removed until the following day's meeting and, on his evidence, not telling anyone about them. I place little weight on his evidence about this matter for that reason rather than because of any other matter of credit raised. But on balance, particularly on the basis of Ms Tu'akoi's evidence and her description of the letter she gave to Mr Wall as a small white envelope rather than a A4 manila envelope, I am not satisfied that Ms Grima's 43 proxies were delivered to the letter box before 11:00am on 17 July 2015.

361 That finding would have been significant under the old Model Rules, which required that notice of proxies be given to the secretary at least 24 hours before commencement of the relevant meeting. However, under the new Model Rules, which I consider applied, this time limit only applied to proxies delivered or communicated by post or electronically. It is clear that the proxies, being hand-delivered to the letter box, do not fit the description of 'sent by post or electronically'. Therefore, the 24 hour time limit prescribed in rule 34(7) of the new Model Rules did not apply, and it is not ultimately material whether the proxies were delivered at 9.30am as contended by Ms Moala, or 12:41pm as contended by Mr Wall.

362 An important question remains however: did Ms Moala's delivery of the proxies to the church letter box on 17 July 2015 satisfy the requirement of the new Model Rules that proxies must be 'given to the Chairperson of the meeting before or at the commencement of the meeting'. One interpretation of this requirement is that delivery to the Church's letter box was insufficient and that personal service of the proxies was required under rule 34(6). However, such an interpretation might prove unworkable in practice for example if the Chairperson could not be located before the meeting or if he deliberately evaded receipt of the proxies. The possible difficulties are illustrated by this case, where there is a split or dispute between groups which might well have made it difficult for Ms Moala to enter the church land and seek to give the proxies to the Minister. This is indeed what occurred the following day at the meeting where, as will be detailed below, Ms Moala and others were held up at the gate by security and prevented from arriving the meeting on time. On any view of the evidence, Ms Moala placed the proxies in the Minister's letter box in an addressed envelope at least 22 hours before the meeting commenced. She was entitled to assume that an envelope, once left there, would make its way into the hands of the appropriate person. The reasonableness of that assumption is bolstered by the fact that on Mr Wall's own evidence the enduring power of attorney left by Ms Moala earlier in the day found its way to the Minister.

363 Then there is the fact that even on Mr Wall's evidence, the only reason that the proxies did not make their way from the letter box to the Secretary to the Chairperson is because he, Mr Wall, acting on an erroneous assessment of the applicable rules, deliberately put the envelope containing them back into the letter box. He then locked the letter box and did not tell anyone what he had found. It was not Mr Wall's role to decide if the proxies were valid, but for the Chairperson of the meeting. It would be a perverse outcome if the new Model Rules allowed such irregular conduct to invalidate the proxy votes of members, who had no capacity, opportunity or power to ensure that their proxy votes would be dealt with in a fair manner.

364 In my opinion, the preferable interpretation of new Model Rule 34(6) is therefore that leaving the proxies in an envelope in the Church letter box the day before the meeting was sufficient to satisfy the requirements of the new Model Rules.

365 I will next set out the relevant evidence about the meeting. Ms Moala drove to the 18 July meeting with Ms Grima, Mr Taunisila and Mr Vea**.** She drove to the gate of the Church property but was told by security stationed there that she was on a prescribed list, and would have to speak to a lawyer before entering.[360] Mr Mortensen, the defendant's solicitor, then came and asked to see her enduring power of attorney, which she showed to him.[361] The four plaintiffs were then allowed to enter the meeting at about 11.20am.

366 It is not entirely clear what business of the meeting had been conducted before their arrival. Mr Tu'akoi said merely that when Ms Moala entered they stopped the meeting, welcomed them, and then 'continue[d] on our business'.[362] Ms Moala gave evidence that:

they were taking position holder ballots for the Werribee congregation when we entered, which abruptly stopped and then they started the meeting and focused on the topics of the resolutions.[363]

367 As the current Minister of the Church Mr Tu'akoi was Chairperson of the meeting and Mr Mataele was present as the Secretary.[364]

368 After the third round of voting on resolutions, Ms Moala noticed that the proxies she had delivered were not being counted, as only four votes against resolutions were recorded, being the votes of herself, Ms Grima, Mr Taunisila and Mr Vea.[365] She then asked where the 43 proxies that she had delivered were. She said that Mr Mortensen left the meeting and came back holding a yellow A4 size envelope in his hand and asked Ms Moala if that was the envelope. She said that it was and Mr Mortensen gave the proxies to the Minister.[366]

369 Mr Mortenson then read out the Association's rules concerning proxies and said that under those rules Ms Moala's proxies had not been validly received. The Secretary then held a vote on whether the proxies should nonetheless be accepted. The motion was defeated, with 79 votes against, of which about 10 to 12 were proxy votes, and four votes in favour.[367] Ms Grima's proxies were therefore not counted, and presumably neither was Ms Moala's mother's enduring power of attorney.

370 The Association's 1991 rules dealt with the Annual General Meeting and special meetings of the committee in section 3. So far as amendment of rules is concerned section 7 provided that:

Where a member of the committee or a member of the Church considers any of the provisions of these rules and Regulations unnecessary or requiring amendments it shall have power to amend, alter or cancel any of the rules and regulations by passing a Motion by a minimum of 75% majority vote of the Church present at the General meeting at which notice of the proposed amendment shall have been given.

A minimum of 21 days' notice to the members of the Church shall be implemented in concern with any amendment. Such amendments shall be sealed and witnessed as provided in the Rules herein.

Provided that the Minister of the Crown for the time being administering the Religious Successory and Charitable Trust Act 1958, and the Department of Business and Consumer Affairs, shall be notified of the amendment and such amendment shall not be effective unless the Minister and the department has signified their approval to such amendment being made.

371 Accordingly, a three quarters majority was needed to pass the special resolution to adopt the new Model Rules, and each resolution amending them. There were about 60 to 65 persons present who, with the exception of the motion to accept Ms Grima's proxies, consistently voted yes, so most of the resolutions were passed with 77 affirmative votes, including about 10 to 12 proxy votes and four negative votes.

Finding as to validity of the Chairperson's non-acceptance of the proxies

372 In my opinion, the Chairperson's failure to accept Ms Moala's and Ms Grima's proxy votes breached rule 34 of the new Model Rules. Members of the Association were given a right to cast a proxy vote by rules 34(1) and 38(1)(b). That right was denied, not because the persons giving their proxy were not members, but because the time limit and procedure for lodging applied was that provided for under the old Model Rules, rather than that under the new Model Rules which should have been applied. The acceptance of the proxies was determined by a vote of the meeting, a non-rule based procedure, rather than being determined under the 2012 new Model Rules as was required.

373 As the proxies were not sent by post or electronically, under the new Model Rules it was sufficient that they were given to the Chairperson of the meeting before it commenced.[368] As Ms Moala and Ms Grima and the others had arrived on time for the meeting and were prevented from entering it, but had lodged the proxies the day before at the Chairperson's letter box, I consider that the requirement that they be given to the Chairperson before the meeting commenced had been fulfilled.

374 The plaintiffs advanced additional arguments that can be briefly dismissed. The plaintiffs contended that the Chairperson did not give members proper information in order to enable them to make up their minds regarding whether the proxies should be accepted, in accordance with the principle adopted in Link Agriculture Pty Ltd v Shanahan.[369] But the acceptance or non-acceptance of the proxies was a matter for the Chairperson to decide in accordance with the new Model Rules.

375 The plaintiffs also attacked Minister Tu'akoi's right to act as Chairperson when he was not a member of the Association, but under the 1991 rules the Minister was the Chairperson of every meeting.

The issue of non-members voting at the meeting on 18 July 2015

376 The plaintiffs also argued that the adoption of the new Model Rules was invalid because many persons who were not members and not entitled to vote had voted to adopt them. The plaintiffs also contended that non-members had dominated the meeting when they had no right to participate in it.

377 The allegation that the meeting was dominated by non-members was not pleaded. As mentioned, the two pleaded challenges to the meeting were the failure to give notice of the meeting to all members and the failure to admit Ms Moala's and Ms Grima's proxies. As the persons present at the meeting, including many people who were not members, were given the right to decide if the proxies should be admitted, the legal effect of the participation of non-members in the meeting arises to that limited extent.

378 I will consider the submissions that were advanced, but only for that limited point. I will describe the framework of the rules and the parties' submissions on the issue.

379 The 1991 rules did not specify any process governing voting at meetings, a matter which clause 18 of Schedule 1 of the 2012 Act states must be dealt with by an incorporated association's rules. The new Model Rules therefore operated to fill this gap, especially rule 38, which provided that:

38 Voting at general meeting

(1) On any question arising at a general meeting -

(a) subject to subrule (3), each member who is entitled to vote has one vote; and

(b) members may vote personally or by proxy; and

(c) except in the case of a special resolution, the question must be decided on a majority of votes.

(2) If votes are divided equally on a question, the Chairperson of the meeting has a second or casting vote.

(3) If the question is whether or not to confirm the minutes of a previous meeting, only members who were present at that meeting may vote.

(4) This rule does not apply to a vote at a disciplinary appeal meeting conducted under rule 24.

380 The defendant submitted that 81 persons were present either in person or by proxy, with 59 attending in person. Nineteen were founding members. The vote to reject the proxies, the resolution effecting the revocation of the 1991 rules and the resolutions adopting the new Model Rules were recorded as being passed with 77 votes in favour and four votes against. The defendant did not dispute that at least some of the people who voted for this resolution were not entitled to do so.

381 As 77 people voted for the defendant's resolutions on 18 July 2015, of whom only 18 were said to be founding members, it is clear that a large amount of people who voted had no right to. Minister Tu'akoi agreed in cross-examination that no one who attended the meeting, other than the founding members, were members of the Association. This was because none of the persons present other than the founding members had filed a written application for membership as the 1991 rules required.[370]

382 The defendant however submitted that the plaintiffs could not rely on this point because it had not been pleaded.

383 It was common ground between the parties that not every error or irregularity in the meetings of an association results in invalidity. Many errors may occur in a meeting that, though irregular, would not invalidate the meeting or any resolutions passed at it. However, the parties disagreed about the principles applicable to deciding whether the errors in this case resulted in the meeting being invalid.

384 The plaintiffs submitted that, because of the irregularities in the conduct of the meeting, both the meeting and the resolution to adopt the new Model Rules were invalid.

385 The plaintiffs sought to rely on the case law interpreting s 1322(2) of the Corporations Act 2001 which, though not directly applicable was said to be analogous. It provides that:

(2) A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid.

386 The plaintiffs relied on the decision of Le Miere J in MTQ Holdings Pty Ltd v RCR Tomlinson Ltd to establish that:

...when the validity of the admission of votes is in issue, as a general rule, one starts with a proposition that the substance of the thing to be done is the admission of the votes of all shareholders present, in person or by proxy who are entitled to vote. If something occurs which results in a denial of that right to a shareholder, or the admission of invalid votes, then there has been a substantive irregularity, not a procedural irregularity. If some irregularity occurs in the procedure for taking a poll or counting the votes that does not result in the admission of invalid votes or the exclusion of valid votes there has been a procedural irregularity.[371]

387 They relied upon this decision to frame the irregularities in the meeting as substantive, not procedural. The failure to allow proxies to vote and the admission of non-members to vote were both substantial irregularities, rather than merely procedural irregularities, because they concerned voting rights. With irregularities of that character, there was no need to show that the results of the meetings and votes would have been different had the invalidities not occurred.

388 They pointed out that, on the defendant's submissions, of the 81 people present and recorded as voting at the meeting only 19 were now said to be founding members who were therefore authorised to vote, and one of those 19 was Ms Grima, who voted against the resolutions. The non-members exerted considerable influence in the conduct of the meeting. Ms Moala gave evidence that she was 'shouted down' when she tried to address the meeting, and that the Secretary, Mr Mataele, a non-member, told her that she would be removed by security if she spoke out of turn again. Further, they submitted that resolutions were drafted by non-members.

389 The plaintiffs also submitted that it was impossible to know what the result would have been had the meeting been conducted in the prescribed manner, as the lobbying for proxies and votes would have been focused very differently had they known that voting would be restricted to the founding members of the Fellowship.

390 The plaintiffs relied on the decision in Scullion v Family Planning Association of Queensland[372], in which Ryan J held that a failure to count proxies was a substantive irregularity, and the defendant bore the onus of showing that the irregularity would have made no difference to the result of the meeting.

391 The plaintiffs also relied on the scale of the participation and voting by non-members. They referred to the decision of the Commonwealth Industrial Court in Steuart v Oliver (No 2)[373], a case about a union meeting, in which Joske J stated that 'the presence of so many unqualified persons at, and the participation in, a meeting may be such that a court would hold that it could not be regarded as a meeting of the particular body.'[374] They also referred to Clark v Framlingham Aboriginal Trust,[375] where Robson J stated that:

At general law, the proper position is that the participation of non-members in a general meeting of a body ought be limited, so that they are unable to exercise influence in the conduct of the meeting, which, if excessive, may invalidate the meeting.[376]

392 The defendant pointed to the absence in the plaintiffs' pleadings of any allegation that the casting of votes by non-members had invalidated the meeting. But in any event, the defendant argued that the plaintiffs had adopted the wrong test for determining whether irregularities had invalidated the meeting and the resolutions passed at it. Section 1322 of the Corporations Act did not apply to incorporated associations and s 144 of the 2012 Act excluded its operation. The defendant submitted that the Court should first look to the Association's own rules and the relevant Model Rules and then to the general law to determine the consequences of any failure to apply the rules regulating the conduct of meetings.

393 The defendant referred to cases decided under the general law on the consequences of the presence or voting of non-members at a meeting of an association. It also referred to Steuart v Oliver[377], in which Joske J also stated that:

There is no general rule that where a person who is not a member of a body, whether this was due to disqualification or lack of qualification or otherwise, is present at a meeting of the body, participates in its meetings or even votes, this necessarily invalidates either the vote or the whole of proceedings at the meeting. The circumstances of each particular case have to be considered.[378]

394 The position may be different where the body was acting in a quasi-judicial manner, in other words determining the rights of an individual, in which case the participation of non-members may be sufficient to void the meeting,[379] but the principle should be limited to that context.[380]

395 The defendant also referred to Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd[381], which provides support for the view that the court must consider the consequences of the irregularity. Palmer J when dealing with the general law regarding the admission of votes at a meeting stated that:

The view expressed by Bryson J may be contrasted with the decision of Street J (as his Honour then was) in Industrial Equity Ltd v New Redhead Estate & Coal Co Ltd [1969] 1 NSWR 565 . There, the chairman rejected proxies lodged prior to a shareholders meeting on the ground that the shareholders giving them were not properly the shareholders of the company. The rejection of the proxies was held by the court to be unauthorised. However, the company relied on an article in the company's constitution which provided that the chairman's ruling was final and conclusive. Street J held that the chairman's ruling was not inviolate. At 570 his Honour held that the right of a shareholder to vote by proxy conferred by the precursor of the present s 249X(1) was a statutory right and that the chairman's ruling rejecting the proxies was "no mere regulatory control over the exercise of the express statutory right ... It was a repudiation of that right". His Honour held that, as a consequence, the meeting had miscarried.

Street J held that the admission of the wrongly rejected proxies would have made no difference at all to the result of the election of two of the three directors standing for election at the meeting, but would have produced a different result in the election of the third director. His Honour therefore refused, in the exercise of discretion, to make a declaration that the election of the two directors was invalid as a result of the miscarriage of the meeting, but he made a declaration that the election of the third director was invalid and ordered the company to convene a fresh meeting to elect a third director.

...

The principles and discretionary considerations which govern the grant of a declaration of validity under the general law are very close to, if not identical with, the considerations which the court must take into account under CA s 1322(6)(a)(ii), (iii) and (c). As is illustrated by Industrial Equity and the cases which have followed it, of central importance is that if the result of the meeting would have been different but for the irregularity, a validating order would be refused both under the general law and under s 1322(2) or (4)(a), because substantial injustice would result.

...

However, this is by no means the end of the matter. A shareholder may have been wrongly excluded from voting, or wrongly admitted to voting, in circumstances in which the irregularity could have made no difference to the result of the meeting. In such a case, the court may, in the exercise of its discretion upon equitable principles, make a declaration that the result of the meeting is valid, notwithstanding the substantive irregularity which has occurred.[382]

396 The defendant's case was that the plaintiffs bore the onus of showing that a material difference would have resulted from allowing the proxies of Ms Grima and Ms Moala to be counted. It also argued that the Court was entitled to assume that the resolutions passed by the meeting would have been passed by a special majority of those entitled to vote in any event. As there was no rule or regulation applicable, then the common law applied, under which the voting by a person not entitled to vote did not necessarily invalidate the meeting or the adoption of a particular resolution. In any event, the Court had power to declare that the results of a meeting were valid despite a substantive irregularity occurring.

397 The defendant argued that the result of the meeting would not have differed had it been conducted in accordance with the rules, and that any irregularities did not render it invalid. This argument assumed that the only people entitled to vote at the meeting were founding members, being persons recorded in the Fellowship's minute book and roll lists as being Lotu Fehu'i at the time of incorporation, and who had not since incorporation ceased to be members. Of the 81 persons listed as present at the meeting, only 19 were founding members. Of those 19, 18 voted in favour of the adoption of the modified Model Rules and only one, Ana Grima, voted against. There was therefore a special majority of 18 to 1 in favour of adopting the modified new Model Rules.

398 Even had Ms Moala's and Ms Grima's proxies been counted, only 5 of those proxies were of founding members, on the assumption that the Lotu Fehu'i requirement applied and that Mr Halahala was not a founding member. Had all of those 5 voted with Ana Grima against the adoption of the modified Model Rules, the result of the vote would still have yielded a special majority of 18 to 6 in favour of their adoption, and the special resolution would have been carried. The position would likely have been different if were Mr Halahala's vote included.

399 The defendant argued that the voting outcome would not have differed had the plaintiffs known that only founding members could vote and had sought to obtain the support of such members, as the lack of communications between the two groups had so deteriorated that any successful lobbying was unlikely.

Conclusion concerning voting by persons who were not members

400 I act on the basis that the voting of a person who is not entitled to vote will not necessarily invalidate a meeting, and that all the circumstances of each case have to be considered. The test appears to be whether the presence of unauthorised participants may have made a material difference to the outcome of the meeting.

401 In my opinion, the meeting was invalid because persons who may have been members under the membership rule that I consider applied were not notified or given the chance to vote and many of the people who did vote were not entitled to do so, most relevantly on the question of whether to accept Ms Moala's and Ms Grima's proxies. I also find the proxies given to Ms Moala and Mr Grima were wrongly excluded. It is not possible to conclude what decision a properly convened meeting of the Association of which notice was given to members under the membership rule that I have found applied would have reached. The meeting departed in fundamental ways from a meeting of the Association of which members had been given notice and in my opinion was not a valid meeting. I do consider that Mr Halahala was a member under the membership rule that I have found applied, because of his participation in the Fellowship, the evidence of which I have previously mentioned.

Conclusion regarding the meeting of the 18 July 2015

402 I find that the meeting of 18 July 2015 was invalidly convened. It was also invalidly conducted in that Ms Moala's and Ms Grima's proxies were wrongly excluded. As a consequence the 2015 rules were not validly adopted. I consider that the those matters probably made a material difference to the outcome of the meeting.

403 The 2015 Rules having been invalidly adopted, my provisional view is that the 1991 Rules as modified by the new Model Rules apply, but I will hear the parties further on that issue if they wish.

404 The plaintiffs argued that the defendant is estopped from denying the membership of the first (Ms Moala), third (Mr Vea), fourth (Ms Kalu), sixth (Mr Taunsila), seventh (Mr Ofamo'oni) and twenty-sixth (Mr Halahala) plaintiffs ('estoppel plaintiffs'). The estoppel plaintiffs comprise those plaintiffs who became actively involved in the Church after its incorporation, and those plaintiffs who were involved in the Fellowship and became Lotu Fehu'i after incorporation. The plaintiffs argued that relying upon the estoppel plaintiffs' lack of compliance with the formal membership rules to deny their memberships of the Association would be unconscionable. They claimed that they were induced by the defendant into assuming that they were voting members of the Church, and that their reliance upon this assumption occasioned them detriment through their contribution of Misinale and time to the church.

405 The estoppel plaintiffs can be divided into two categories. The first category, comprising the first and fourth plaintiffs, are those estoppel plaintiffs who have never been appointed Lotu Fehu'i. The second category, comprising the third, sixth, seventh and twenty-sixth plaintiffs, are those estoppel plaintiffs who were each appointed Lotu Fehu'i during the period between incorporation in 1991 and 2015.

406 I will first address the defendant's two preliminary arguments. The defendant submitted that, irrespective of whether the estoppel plaintiffs established the requisite elements, estoppel cannot operate in this case for two key reasons: first because any representations made were without the authority of the Association, and secondly because the recognition of the estoppel would undermine the statutory scheme that governs the conduct of the Association.

407 As will be outlined below in greater detail, the estoppel plaintiffs' claim is founded on the defendant having engaged in conduct amounting to an implied representation to them that they were voting members of the Association. This representation was said to induce an assumption amongst those plaintiffs that they were voting members and that had led them to act to their detriment.

The defendant's first preliminary argument - authority

408 The rules governing membership after the incorporation of the Association prescribed a formal membership application process. Relevantly, Model Rule 4(3) required that membership applications be in writing and in a prescribed form. As well as the estoppel plaintiffs, the Minister and other Church officials failed to appreciate or apply this requirement of the rules.

409 The defendant argued that as a consequence, the representation said to found the estoppel was that the estoppel plaintiffs were or could become members without having complied with the membership application requirements in the rules. It submitted that such a representation if made, was made without authority, as the Association could not authorise non-compliance with the rules. The defendant highlighted that the rules could only be amended by a special resolution supported by three quarters of the members present at a meeting.

410 The defendant relied upon a decision of the Western Australian Court of Appeal in Tiao v Lai (No 2), previously mentioned. This case concerned a Chinese religious association in Perth and whether a purported member had authority to sell part of the association's land. In accordance with the Associations Incorporation Act 1987 (WA), the association had a Constitution which prescribed membership rules which required, inter alia, that membership applications be in writing and provided that the association's board had the exclusive power to accept or reject such applications. However, the board deliberately failed to make themselves aware of the membership rules under the Constitution. The Constitution was written in English and no Chinese translation was prepared so that its contents could be understood. As a consequence, all membership applications and approvals did not conform with the provisions of the association's rules.

411 The Court held that the Board could not make people members of the association when they had not complied with the mandatory requirements for membership, including submitting a written membership application. The Board could not waive those requirements. The defendant relied upon the following passage in the judgment of Buss JA[383]:

Fourthly, if by 'waiver' her Honour meant that the Association is estopped from denying that the list of contributors compiled from the marble plaque are ordinary members, no proper basis exists for such an estoppel. Any representation or other conduct by any member or members for the time being of the Board to the effect that a person was or would become an ordinary member of the Association was incapable of founding an estoppel if made by a director or directors without relevant authority... None of the directors for the time being of the Association had any authority to admit ordinary members in breach of the requirements of the constitution, a document filed on the public register.[384]

412 Central to the Court's decision was a finding that the Constitution was a binding document recorded on the public register and that no one in the association had the power to avoid or amend those rules other than through the prescribed process for amending the Constitution. The defendant submitted that the facts of Tiao were directly analogous and that the Court's findings in that case should not be departed from.

413 The estoppel plaintiffs argued that their assumption that they were members was induced by the collective conduct of persons involved in the Association, which was an operative association after 1991 regardless of whether some office-holders had not been validly appointed or were not themselves members. They argued that an estoppel could bind the Association and was not dependent on individual representations made by individual persons within the Association armed with the requisite authority.

414 In the alternative, the estoppel plaintiffs argued that the Minister had ostensible authority to accept them as members. Ministers of churches generally possess considerable authority in the conduct of their church. This was particularly the case in the present instance, as the Minister had been appointed by the Congress of the Tongan Church in Tonga. Therefore, his representations were likely to have been taken as made with the required authority.

415 At issue is whether the Minister or any other Church official had sufficient authority to make a representation, sufficient to found a claim in estoppel, that the estoppel plaintiffs were members of the Church.

416 The decision in Tiao, on which the defendant relied, is relevant to the present question. In addition to the extract above, Buss JA also stated:

The Board has no power, however, to admit people as members of the Association unless and until those people comply with those provisions of the constitution which regulate the manner and circumstances in which they may be admitted to membership.[385]

...

Thirdly, if by 'waiver' her Honour meant that the Board had dispensed with the requirements of the constitution in relation to membership, any such dispensation could not, as a matter of law, effect an amendment to the constitution. See s 17(1) of the Act which provides that, subject to s 18 and s 19, an incorporated association may alter its rules by special resolution but not otherwise. Sections 18 and 19 are not relevant for present purposes.[386]

417 The decision in Tiao relied on authorities[387] stemming from the 1902 House of Lords decision in Whitechurch (George) Ltd v Cavanagh,[388] where the Court decided that a company was not estopped from denying transfers of shares on the basis of a secretary certifying share transfers without the required certificates for shares. The estoppel claim was rejected on the basis that any implied representation by the secretary that the shares were lawfully transferred was without authority as it was in contravention of the articles of the company. Lord Macnaghten stated:

To my mind it is absurd to suppose that Smith... could have imaged that one director could set at nought the articles of his company, and bind his company by estoppel or otherwise to act in contravention of its regulation.[389]

418 I consider that, even if the estoppel plaintiffs could establish that the Church impliedly represented to them that they were or could become voting members other than in accordance with the rules, such a representation was made without authority. The reasoning in Tiao and Whitechurch leads to that conclusion. Although the Association's Minister and office-bearers were apparently unaware of the membership requirements, they had no authority to represent that a person could become a member of the Church without complying with the mandatory rules. The Minister had no ostensible authority to depart from the requirements of the rules. The Association lacked that authority and therefore could not hold out its agent, the Minister, as possessing authority which it did not itself possess.

419 I therefore accept the defendant's first preliminary argument in answer to the plaintiffs' estoppel claim.

The defendant's second preliminary argument - the statutory scheme

420 The second preliminary point upon which the defendant argued that the plaintiffs' estoppel claim was flawed was the public policy ground that estoppel could not operate in the face of a mandatory statutory scheme.

421 The defendant argued that recognising the plaintiffs' estoppel claim would undermine the statutory scheme governing incorporated associations. It submitted that the estoppel plaintiffs ought not be able to achieve something by relying on an estoppel that the mandatory statutory framework did not permit.

422 The defendant submitted that the 2012 Act was intended to regulate, and have an effect on, not only on private dealings between private parties, but also dealings by members of the public with incorporated associations. The Act grants associations various powers such as perpetual succession, the power to hold and dispose of property and the ability to sue and be sued.[390] The defendant argued that the corollary of being granted such power was an association's responsibility to exercise those powers in accordance with the Act and its registered rules. The defendant also highlighted s 46 which provides that the rules of an association are taken to constitute the terms of a contract between the association and its members, s 67 which permits applications to the Magistrates' Court for an order enforcing an association's rules and s 50 which allows an association to alter its rules only via special resolution.

423 The defendant argued that this statutory scheme was intended to promote accountability, consistency and fair dealings as between members, members and the association and the association and the public. As a consequence, permitting an estoppel would affect interests beyond those of the plaintiffs and the Association. It would unjustly dilute existing members' voting rights, as the estoppel plaintiffs would be entitled to an equal say despite not conforming to the mandatory membership rule as others had. It would also raise the possibility of existing members seeking to enforce the Association's rules in the Magistrates' Court pursuant to s 67. Further, it would constitute a de facto amendment to the Church's rules, thus circumventing the s 50 special resolution requirement.

424 Therefore, the defendant submitted that the legislature would not have intended that an estoppel could prevent the operation of statutory provisions which cannot even be excluded by the express agreement of contracting parties. To recognise the estoppel upon which the plaintiffs relied would grant powers to the Association concerning the admission of members that were not available to it under the Act.

425 The plaintiffs disputed the defendant's submissions about the significance of the statutory scheme and argued that the Association's 1991 rules were an 'absurdity' and 'grotesque'.[391] They argued that the principle that estoppel ought not undermine a statutory scheme is premised on transparency and accountability and that members, prospective members and the public ought to be able to know with certainty the rules of an Association. However they submitted that the enforcement of rigid adherence to the 1991 Rules with respect to the admission of members would achieve nothing as they were so poorly drafted.

426 The plaintiffs conceded that the defendant's statutory scheme argument might have some force at a point when the meaning of the rules was clarified. However, they denied that in their current form the rules required enforcement in order to uphold the statutory scheme.

427 I accept the defendant's submission that the plaintiffs' estoppel claim would undermine a mandatory statutory regime, and therefore also accept its second preliminary argument.

428 Recognising the estoppel would endorse the estoppel plaintiffs' membership of the Association despite the fact that they did not comply with the rule requirement that a membership application must be made in writing and in a prescribed form. This rule is mandatory.

429 The rationale for the rule that an estoppel cannot exist in the face of a statute was considered by the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd[392] in the following passage:

It has been said that the question whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or 'on grounds of general public policy'. ... [A] more direct test to apply in any case such as the present... is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise...

General social policy does from time to time require the denial of legal validity to certain transactions by certain persons. ... In all such cases there is no room for the application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man's benefit and what is for his protection are not synonymous terms. Nor is it open to the court to give its sanction to departures from any law that reflects such a policy, even though the party concerned has himself behaved in such a way as would otherwise tie his hands...[393]

430 However, this principle depends on the nature of the statutory scheme confronting the estoppel, as outlined by Beldam LJ in Yaxley v Gotts:[394]

The general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it.[395]

431 These principles were summarised and applied by Young CJ in Eq in Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd.[396]

432 I will refer to two decisions of present relevance concerning membership of registered unions under the Conciliation and Arbitration Act 1904 (Cth). In United Grocers, Tea and Dairy Produce Employees' Union of Victoria v Linaker[397], the High Court held that the Union was not estopped from denying that a person was a member. Griffith CJ stated:

In my opinion the provisions of Schedule B of the Act are peremptory. Very special and important rights are conferred by the Act on a duly registered organization and its members, rights which are not merely rights inter se but against the public. In my opinion, a man can only become a member of an organization in the manner prescribed by the rules.[398]

433 Similarly_,_ in Australian Public Service Association v Lawrence,[399] Toohey J stated:

There is little doubt that, when Mr. Lawrence applied to join the Association in June 1981, he was accepted with the knowledge that he had in fact been working as a head cook and that he could not fairly be described as a food processor supervisor. It is equally clear that since that time disputes have arisen between the Association and Mr. Lawrence which have led to the bringing of this application. Mr. Lawrence produced several documents emanating from the Association which, he said, recognised him as a member. Unfortunately for Mr. Lawrence, it is well established that the rules of an organisation are mandatory and that estoppel cannot operate to preclude an organisation from relying upon its rules to determine validity of membership.[400]

434 The principles in these cases appears to be clear. Whether they apply in this case depends on the nature of the 2012 Act and whether the statutory scheme would be undermined by a finding that an estoppel existed.

435 I accept that the 2012 Act seeks to create a scheme whereby associations are granted certain powers in exchange for certain responsibilities; most notably the requirement of submitting rules to the Registrar that must be followed. This creates certainty for members of associations, prospective members, and those members of the public with an interest in the association or who have dealings with it. I consider that upholding the alleged estoppel would undermine this certainty and transparency as to the applicable rules because those features of the Association's membership rules would cease to apply if an estoppel could be established. The membership rights of those who complied with the rules and are entitled to their enforcement would be unfairly diluted.

436 I therefore find that the defendant's two preliminary arguments against the estoppel plaintiffs' claim has been established, and that therefore find that no estoppel operate as alleged.

437 Although I have considered that the plaintiffs' claim in estoppel fails for the two reasons outlined above, I will consider the parties' submissions about whether the plaintiffs have otherwise established the elements of an estoppel.

438 In submissions the plaintiffs principally relied upon the decision of Walton Stores (Interstate) Ltd v Maher,[401] in which Brennan J described six criteria for a plaintiff to establish in order to successfully establish an equitable estoppel.[402] These criteria were as follows: first that the plaintiff assumed a particular legal relationship existed, or would come to exist, between the plaintiff and defendant (assumption). Secondly, that the defendant induced the plaintiff to adopt that assumption or expectation (inducement). Thirdly, that the plaintiff acted or abstained from acting on the faith of the assumption or expectation (reliance). Fourthly, that the defendant knew of the plaintiff's action or intended the plaintiff to act in that way (knowledge). Fifthly, that the plaintiff's action or inaction will cause him or her to suffer detriment if the assumption or expectation is not fulfilled (detriment). Sixthly, that the defendant failed to act to avoid the detriment by fulfilling the expectation or otherwise (resiled).

439 The plaintiffs submitted that the assumption giving rise to the estoppel was that the estoppel plaintiffs assumed that they were voting members of the Association.

440 The inducement by the defendant was said to arise not from an express representation to the estoppel plaintiffs that they were voting members of the Association, but rather from a series of ad hoc directions and conduct by the Minister and Association committee. In a written memorandum from the plaintiffs to the Court they set out the precise conduct that was said to induce their assumption that they were members of the Association. The conduct was as follows:

(a) The First Plaintiff, Ms Moala: she was welcomed into the Church by the Minister in 1994; she was a member of class group responsible for a Misinale budget set by the Committee and participated in various Church programs including Sunday School.

(b) The Third Plaintiff, Mr Vea: said that he became a member in 2000 after presenting the Minister with a letter saying he was Lotu Fehu'i; he was assigned to a class group; he was appointed steward for the Dandenong congregation in 2000, having been elected at a congregational quarterly meeting, a role which included inducting new members and allocating a class group to them and was a class leader from 2000;

(c) The Fourth Plaintiff, Ms Kalu: she attended Sunday School; and she participated in clean-up days and provided guidance to younger members of the Church.

(d) The Sixth Plaintiff, Mr Taunisila: he was a member of a class group, which was given an annual Misinale budget set by the Committee and communicated to the class group through its leader; he was elected to the position of caretaker by the Werribee congregation in 2004 when he had the status of Malanga; he was welcomed into Church by the Minister during Sunday Service at Werribee and, having been elected caretaker, was appointed to the Committee.

(e) The Seventh Plaintiff, Mr Ofamo'oni: was appointed head secretary of the Church in May 2003; and was responsible for keeping management committee, quarterly meeting and annual meeting minutes.

(f) The Twenty-Sixth Plaintiff, Mr Halahala: he voted at quarterly meetings; was appointed assistant choir conductor for the Werribee Congregation in 2009, having been voted in by a show of hands; was appointed to the Committee in 2009 and is currently assistant steward.

441 Broadly speaking, this memorandum focuses on the Association's direction to the estoppel plaintiffs to join class groups and donate to Misinale, as well as encouragement to dedicate time and resources to Church programs and the maintenance of the Church. Further, some estoppel plaintiffs were appointed to leadership positions within the Association. This conduct was said to induce in the estoppel plaintiffs an assumption that they were voting members of the Church or the Association.

442 The estoppel plaintiffs argued that the assumption that they were voting members led to their provision of money and resources. Had they realised that they were not in fact members of the Church, they would not have committed so much time and money. Evidence to similar effect from other plaintiffs has been referred to previously.

443 The plaintiffs argued that the defendant knew of the estoppel plaintiffs' assumption that they were members. The defendant and its Minister and office-bearers knew of the estoppel plaintiffs' assumption for many years and that supported the plaintiffs' evidence that they held that assumption. Other than a failure to comply with the formal membership requirements in the Model Rules imported into the 1991 Rules, each estoppel plaintiff complied with the membership rule that was initially drafted for the incorporated association. That is, they each were 'a person who accept[ed] the doctrine of the said Church through baptism within the Church, truly acceptance of Christ and [was] willing to become an active member of the Church'.

444 Section 10(iii) of the 1991 Rules provides that members are encouraged to contribute to Misinale, but that no member shall have a claim in Court for any money that they have contributed. In the defendant's Annual Statements lodged with the Department of Justice ('DOJ') between 2004 and 2014, the reported number of members fluctuated between 380 and 515. After 2014, following the split and in accordance with the defendant's purported membership rule, the number of members sharply decreased. Attached to the 2014 Annual Statement to the DOJ, the defendant's 'Members' Fund' was valued at $4,888,174. The Minister agreed that this money came from the pockets of 'members' - those who were acknowledged or founding members and Lotu Fehu'i, and those who were not.

445 The detriment said to have been caused to the estoppel plaintiffs was not only confined to financial loss through Misinale offerings. The defendant, through resting on its legal rights, deprived the estoppel plaintiffs of the right to have a role in the management and direction of the Association and the Church that they helped build. The plaintiffs submitted that detriment was to be assessed at the time that the defendant resiled from the assumption, which in this case was 2016 when the Church asserted that no new members had joined the Association since 1991.

446 It was finally argued that the defendant failed to act to avoid this detriment. In fact, it was said that the failure to have a proper form of application for membership in accordance with the Model Rules was the defendant's own failure. As a consequence, the sizeable Members' Fund is confined to benefit only the founding members and those who were provided with the membership applications that were processed in 2016 at which time those applicants were appointed Lotu Fehu'i. It was argued that this was unconscionable, and that the Members' Fund ought to inure for the benefit of all of those who contributed to it and not just for a select few.

447 The defendant argued that the estoppel plaintiffs had not on the evidence established their claim in estoppel. It challenged the existence of all of the elements of estoppel, and particularly emphasised the imprecision of the conduct said to amount to an implied representation, the unreasonableness of the claimed assumption and the failure to show unconscionability - the unifying theme of estoppel.

448 The defendant argued that there was insufficient evidence to establish that the estoppel plaintiffs truly held the assumption that they were voting members. They further argued that even if such an assumption was made out, that it was so unreasonable that it could not found an estoppel. This was because the activities undertaken in purported reliance on the alleged assumptions did not extend to engaging in activities that were only performed by confirmed members. For example, donating time and Misinale were common actions by non-voting participants of the Association.

449 The defendant conceded that those estoppel plaintiffs who were confirmed as Lotu Fehu'i would have had an arguable claim had they pleaded that their assumption of membership was on the basis of being Lotu Fehu'i. However, it was instead pleaded that their assumption was on the same basis as those estoppel plaintiffs who were not Lotu Fehu'i - being welcomed and directed to participate in Church life - rather than their elevated spiritual status.

450 The defendant claimed that it could not have induced any assumption as to membership as the evidence did not establish that it made any express or implied representation. The conduct that the plaintiffs said amounted to an implied representation was merely that the estoppel plaintiffs could attend congregational meetings and participate in Church life, not that they were voting members. The defendant argued that there was insufficient certainty in any of the conduct to establish the implied representation.

451 Further, the defendant argued that a necessary aspect of inducement is intent. They argued that the plaintiffs had not established that it intended to induce any such assumption. The evidence that the entire Association and Church community misapprehended the membership requirements and process supported this submission.

452 The defendant argued that the plaintiffs would have had the same involvement in Church activities irrespective of any assumption as to their membership. The evidence suggested that all the Church community, members and participants alike, voluntarily contributed Misinale and gave their time. The estoppel plaintiffs would have volunteered their money and time, regardless of whether they believed themselves to be voting members, in service to their faith.

453 Similarly the defendant argued that it did not know that it had induced the estoppel plaintiffs into assuming that they were voting members and that they would consequently donate their time and money. This element was not established on the evidence in view of the lack of knowledge of the actual membership rules.

454 The defendant argued that detriment was not established for the same reason as reliance - namely, that the evidence suggested that the estoppel plaintiffs would have donated their time and money to the Church, in the service of their faith, irrespective of whether they believed that they were voting members.

455 Finally the defendant relied upon the absence of the core unifying theme of the estoppel doctrine - unconscionability. An essential requirement of estoppel is that the defendant's conduct shows that it knew and intended to exploit the plaintiffs' misapprehension. However, the defendant by its Minister and office-bearers were unaware of the membership rules and had been applying the wrong rule. Upon discovering this state of affairs, they began to apply the correct rules. Such conduct could not be labelled unconscionable.

456 I am not satisfied that the estoppel plaintiffs have established the necessary elements of estoppel. Though I accept that the estoppel plaintiffs genuinely assumed that they were voting members, I do not accept that such an assumption was reasonably based on the defendant's representations, that they suffered detriment, or that the defendant acted unconscionably.

457 The first reason why the estoppel plaintiffs' have not established the elements of estoppel is that their assumptions were not reasonable. Assumptions can only found an estoppel if they are reasonable. In the case of Commonwealth v Verwayen, Deane J emphasised that focus should be upon the reasonableness of an assumption:

Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.[403]

458 It was unreasonable for the estoppel plaintiffs to assume, on the basis of directions to be involved in the Church community, that they were voting members.

459 The evidence establishes that throughout the life of the congregation Church participants were actively involved in Church life and did so voluntarily in service to their faith. It is therefore unreasonable to assert that the same treatment afforded to the estoppel plaintiffs could reasonably found an assumption that they had more advanced rights than a standard participant.

460 For example, the first plaintiff attended the 2014 and 2015 general meetings holding enduring power of attorney for a confirmed member, and thus apparently understood that she could not attend and vote in her own right.

461 The evidence suggests that the plaintiffs would have engaged in substantially similar conduct had they not assumed that they were voting members. I consider that in this Church's community, and indeed many church communities, participants contribute their time and money in service to their faith. Church communities rely upon such conduct. I do not accept that the estoppel plaintiffs would not have contributed Misinale or their time to Church activities had they realised that they were not duly appointed members of the Association.

462 The plaintiffs have thus failed to establish that they acted in reliance upon the assumption or that they suffered detriment - i.e. 'material disadvantage' flowing from an inducement to act[404] - in reliance on the assumption.

463 The core of doctrine of estoppel is preventing unconscionable conduct. As outlined by Mason CJ and Wilson J in Walton Stores:

One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has "played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it": per Dixon J in Grundt...Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.[405]

464 I consider that, to establish a claim in estoppel, there must be conduct by a defendant intended to exploit a plaintiffs' misapprehension of a state of affairs. Its conduct must have been intended to induce the misapprehension.[406]

465 The defendant laboured under the same misapprehension as the estoppel plaintiffs about membership requirements, and upon realising its mistake sought to rectify it. The defendant therefore could not have intended to induce a misapprehension, nor did it act unjustly in denying the estoppel plaintiffs' memberships. In essence, the defendant's conduct was not unconscionable in the sense that was intentionally exploitative. Unconscionability, which underpins the entire doctrine of estoppel, needs to be present for a claim to succeed.

466 My decision on the issues I listed at the commencement of the judgment are:

(a) Issue 1, the membership rule: what was the Fellowship's membership rule? I find that the Fellowship's membership rule required at least 3 months active participation in the Fellowship's activities by baptised persons, as demonstrated by the actions of regular attendance at church services and allocation to, and regular attendance at, class group meetings.

(b) Issue 2, cessation: which of the plaintiffs who were members of the Association have ceased to be members because they have left congregations or ceased their involvement with it or did not reply to the Secretary's letter of 27 July 2015 by stating that they wished to remain a member of the Association? I find that, of the paragraph 10 admitted founding members, the eleventh, twelfth, fifteenth, sixteenth, twenty-first and the twenty-seventh plaintiffs ceased to be members, and that of the paragraph 12 disputed founding members, the ninth, tenth, thirteenth, twenty-second, twenty-third, twenty-fourth, twenty-eighth, twenty-ninth and thirtieth plaintiffs ceased to be members.

(c) Issue 3, the 2015 amendments: were the 2015 rules validly adopted, and if not, do the 1991 rules continue to apply? No, the 2015 rules were not validly adopted. My provisional view is that the Association's 1991 rules, as modified by the new Model Rules, apply but I will hear the parties further on that issue if they wish.

(d) Issue 4, estoppel: is the Association estopped from denying the membership of six persons, being the first, third, fourth, sixth, seventh and twenty-sixth plaintiffs who contend that the Association is estopped from denying that they became members after its incorporation on 3 March 1991? No, in this case estoppel cannot operate to prevent the defendant from denying the membership of the estoppel plaintiffs. However, I have found that the twenty-sixth plaintiff, Mr Halahala, is a foundation member.

467 I informed the parties that I would not be determining the membership status of anyone who was not a party to the proceeding. They presented contentions including in Schedules to pleadings and by oral evidence as to the members of the Fellowship immediately before the incorporation date and as to the Association's current members. I have determined the membership rule of the Fellowship, which should enable the parties to determine who the foundation members are and I have determined the membership status of each plaintiff.

468 As I foreshadowed at the conclusion of the trial, I will postpone making orders to give effect to this judgment until the parties have had the opportunity of making submissions about them.

469 As discussed earlier, the last part of these reasons consist of an appendix collecting selected parts of the various rules and statutory regimes applicable to this dispute.

First edition of the Constitution of the Fellowship

Constitution of the Free Tongan Fellowship 1984

1. AIMS:
   1. Try to learn and know more about Christian teaching and values and then endeavour to share those experiences with others.
   2. Encourage members to keep and observe Tongan customs and ways that are thought to be good.

iii. To create good personal relationship among members.

3. MEMBERS

1. Membership is free for all people, provided their names are registered in the Fellowship's Registration Book.
2. Any member or members who have refused to accept decisions already made by the General Meeting may be asked to give their reason. If their answers are not satisfactory, then the General Meeting with 2/3 majority got the right to have their names deleted from the Registration Book, which would mean that they are now no longer members of the Free Tongan Fellowship.

1. Election is to [be] held once a year; before this election the Chairperson should formally announce that all current positions are vacant.
2. No person should be allowed to hold an office in the Fellowship unless she/he is an Australian permanent resident and has been an active member of the Fellowship for at least one year.
3. One has to be an active member of the Fellowship for three months before she/he is eligible to vote.
4. Before the election, the members may decide whether the vote is to [be] taken by showing of hands or by secret ballot.
5. Whenever a General Meeting is called for, the Constitution may be read to the members if required.

1. All the office-bearers elected at the previous General Meeting shall form the Committee which is responsible for the day-today operation of the Fellowship.
2. The Committee may be allowed to use Fellowship money only on expenditure which is not more than fifty dollars ($50).
3. Any issue that is considered important by the Committee should be referred to the General Meeting.

8. MEETINGS

i. Committee:

- Is required to hold a meeting at least once a month.

- The members of the Committee shall nominate someone to be the Chairperson at that meeting.

- Any member who has resigned from the Committee before the next election should advise the Fellowship Secretary and the Committee in writing. This should be raised and considered at a General Meeting.

ii. FELLOWSHIP GENERAL MEETING

- A General Meeting should be held once every year, but the Committee reserve the right to call such a meeting at any time.

- All members are free to attend at this meeting. Any member who wants to call for a special General Meeting should first seek the approval of the Committee. The General Meeting is the most powerful body in the Fellowship; it reserves the right to give the final decision on any issue of the Free Tongan Fellowship.

9. NOTE

- No amendment or change should be made to the Constitution without the approval of a 2/3 majority of the General Meeting.

Second edition of the Constitution of the Fellowship

The Constitution and Regulations of the Free Tongan Fellowship in Melbourne, Victoria 1986

CHAPTER 1

OBJECTIVES AND MEMBERSHIP

...

2 OBJECTIVES

1. To try and enhance the knowledge of its members about Christian living and Christian principles and for members to share these values with others.
2. Encourage members to retain certain aspects of the Tongan customs and culture that are good and just.
3. To maintain lasting relationships that are peaceful, joyful and loving between all members.

1. Membership is open to anyone wishing to join, but names must be registered and listed in the Registry Book.
2. If any member or members disagree with a decision made by the General Meeting that causes them to be in absentia or being critical in an adverse manner, the General Meeting has the authority to suspend them with their names removed from the Registry Book provided that the vote is passed by a two thirds (2/3) majority.
3. Those whose names have been removed from the Registry Book will no longer be part of the Fellowship and they will have no entitlements to assets, finances or any other goods.

1. Election of office-bearers is to be held once a year by prior to the election, the Chair will announce and release all positions available for election.
2. No person will be allowed to hold office if he/she is not a permanent resident/citizen of Australia and an active member of the Fellowship with no less than one year membership
3. No person will be allowed to vote unless one has been a member for three months and above.
4. The General Meeting shall have the right to confirm whether voting is to be by show of hands or by paper ballot.
5. If required, the Constitution may be read during the General Meeting.

CHAPTER 2

OFFICE BEARERS AND THEIR DUTIES

A.

...

B.

1. Every office bearer should prepare annual report to be submitted to the Annual General Meeting, wherein elections of new office bearers are done.

Ii From time to time, the Annual General Meeting has the powers to propose new positions, or to remove any position that is currently in place.

CHAPTER 3

FINANCES AND MEETINGS

A. USAGE OF FUNDS

...

B THE COMMITTEE

1. All office-bearers appointed by the General Meeting will establish a Committee for the daily operations of the Fellowship.
2. It shall be permissible for the Committee to use the funds of the Fellowship if the expense is below fifty dollars ($50).
3. If there are any important issues considered by the Committee, they must all be submitted to the General Meeting for confirmation.

C THE MEETINGS

1 THE COMMITTEE

...

2 THE FELLOWSHIP

1. It is mandatory that the General Meeting of the Fellowship be conducted once a year, but the Committee also has the authority to call a General Meeting any time.
2. The General Meeting is open to all members. If there is any important matter that occurs unexpectedly, and that any member may wish to have it discussed by the General Meeting, then he/she should request the Committee for consideration whether it warrants submission to the General Meeting.
3. The General meeting is the highest authority for the implementation or non-implementation of any decisions of the Fellowship. The final decisions on any issues therefore rest with this gathering, the General Meeting.

CHAPTER 4

SPIRITUAL RESPONSIBILITIES

1. THE CATECHUMENS (LOTU FEHU'I)

1. A member of the Catechumens is one whose name is listed in the roll for the Class list of the Catechumens or the Fellowship.
2. The class for Catechumens is open to anyone who wants the truth about Godly life and who participates in the meetings to share and have discussion with his/her fellow peers. A leader for each grouping (class) will be appointed to lead the group.
3. The Minister or a Lay Preacher appointed by the Chair will conduct monthly meeting with all the Catechumens to provide them wise counsel and support in their Christian journey
4. Should any person wish to become a Catechumen, he/she should approach the Secretary or the Minister to indicate his/her desire to aspire to a Christian life by obeying all the rules and regulations of the Fellowship, will be appointed as a trainee for one month. He/She will be confirmed as a Catechumen if his character and conduct is assessed as satisfactory by the Minister.
5. It is right for a person achieving the Catechumen status to abide by and be present during church activities such as sermons, Lord's Last Supper and church meetings. Catechumens should also be devoted to the daily reading of the Holy Scriptures, silent prayers and meditation, as well as family prayers.

2. CLASS LEADER (TAUHI'AHO)

...

3. CONFIRMED CATECHSTS (AKONAKI)

...

4. LAY PREACHERS

...

5. THE MINISTER

...

6. THE MEETING OF LAY PREACHERS AND CLASS LEADERS

1. The meeting of Lay Preachers and Class Leaders will meet one every Quarter (March, June, September and December), at a venue to be decided by them
2. The Minister will Chair but it is within his powers to nominate a person to replace him.
3. It shall be possible for the meeting to be held separately for Lay Preachers and for Class Leaders should they wish to do so.

4. Do we have any nominations for Class Leaders?

5. Do we have any nominations for trainee Lay Preachers?

1. Do we have any trainee Lay Preachers being nominated as Confirmed Lay Preachers?
2. Do we have any Lay Preachers or Class Leaders from outside our Fellowship that needs to be admitted as our own?

8. These are the questions to be raised at the Meeting:

i. Those present at this meeting? Any apologies?

1. How are the Lay Preachers and Class Leaders and their Christian living? Their names will be called out individually to respond to the following:

1. To update one's own journey as a Christian abiding by Christian principles and values. 2. Does he/she witnesses to others in accordance with Christian beliefs?

1. Do you abide by the Regulations and accept responsibilities assigned to you?

1. Do you feel that you are suitable for the position of a Lay Preacher or Class Leader?

1. Do we have any Lay Preachers or Class Leaders that have moved out of our congregation?
2. Do we have any advice regarding the subjects and assessment of sermons for Lay Preachers?

11. What shall we do to improve and enhance our current service delivery?

1. Do we have any Lay Preachers or Class Leaders that have died during this Quarter?

13. What is the date and venue for the next meeting?

470 The rest of the second edition of the Constitution dealt with a variety of spiritual and worship related matters.

The Associations Incorporation Act 1981

471 This Constitution remained the governing rules of the Church until the point of incorporation on 4 March 1991. On this date the Church became an incorporated association incorporation under the 1981 Act. The Act relevantly provided the following:

Associations Incorporation Act 1981

Part II Incorporation

...

6 Rules of association

The rules of an incorporated association or proposed incorporated association comply with this section if -

(a) they make provision, subject to and in accordance with this Act, whether by the adoption of the model rules or otherwise, for -

(i) the several matters that are specified in the Schedule; and

(ii) such other matters (if any) as are prescribed; and

(b) they are divided into paragraphs which are designated by letters in alphabetical order or are numbered consecutively.

Part IV Effects of Incorporation

...

14 Interpretation

(1) On and from the date specified in a certificate of incorporation of an association granted under this Act, but subject to this Act and the rules of the incorporated association -

(a) In the case of a certificate granted under section 7, the persons who were the members of the association immediately before that date;

...

together with such other persons as from time to time become members of the incorporated association, are an incorporated association by the name set out in the certificate.

...

14A Enforceability of rules and purposes

The rules of an incorporated association constitute the terms of a contract between the incorporated association and its members for the time being.

...

21 Purposes and rules

(1) The purposes of an incorporated association are the purposes stated in the statement of purposes that accompanied the application for its incorporation under this Act as altered by the incorporated association from time to time in accordance with this Part.

(2) The rules of an incorporated association are -

(a) where the application for the incorporation of the association was accompanied by a copy of rules that complied with section 6 - those rules as altered by the incorporated association from time to time in accordance with this Part; and

(b) in any other case, the model rules, so far as applicable and as altered from time to time by the incorporated association in accordance with this Part.

(3) Where, in relation to any matter in relation to which the model rules make provision but the rules of the incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association.

(4) A purpose or rule of an incorporated association is of no effect if it is inconsistent with this Act or contrary to law.

(1) Subject to section 51, an incorporated association may, by special resolution, alter its statement of purposes or its rules.

...

SCHEDULE

MATTERS TO BE PROVIDED FOR IN THE RULES OF AN INCORPORATED ASSOCIATION

1. The qualifications (if any) for membership of the incorporated association.

2. The register of members of the incorporated association.

1. The entrance fees, subscriptions and other amounts (if any) to be paid by members of the incorporated association.
2. The name, constitution, membership and powers of the committee or other body having the management of the incorporated association (in this paragraph referred to as the committee) and -

(a) the election or appointment of members of the committee;

(b) the terms of office of members of the committee;

(c) the grounds on which, or reasons for which, the office of a member of the committee shall become vacant;

(d) the filling of casual vacancies occurring on the committee;

(e) the quorum and procedure at meetings of the committee.

1. The quorum and procedure at general meetings of members of the incorporated association and whether members are entitled to vote by proxy at general meetings.
2. The time within which, and manner in which, notices of general meetings and notices of motion are to be given, published or circulated.
3. The sources from which the funds of the incorporated association are to be or may be derived.
4. The manner in which the funds of the association are to be managed and, in particular, the mode of drawing and signing cheques on behalf of the incorporated association.
5. The intervals between general meetings of members of the incorporated association and the manner of calling general meetings.
6. The manner of altering the statement of purposes of the incorporated association.
7. The manner of altering and rescinding the rules and of making additional rules of the incorporated association.
8. Provisions for the custody and use of the common seal (if any) of the incorporated association.
9. The custody of relevant documents and securities of the incorporated association.
10. The inspection by members of the incorporated association of relevant documents of the incorporated association.
11. The disposition of any surplus assets on the winding up or dissolution of the incorporated association.
12. The procedure (if any) for the disciplining of members and the mechanism (if any) for appearances by members in respect of disciplinary action taken against them.
13. The grievance procedures for settling disputes under the rules between the incorporated association and any of its members or between a member and any other member.

472 In accordance with section 6 of the 1981 Act, the organisation registered a set of rules to govern the now incorporated Church. The relevant provisions of these are as follows:

Rules and Regulation of the Church - Free Wesleyan Church of Tonga in Australia 1991

PART I

SECTION 1: NAME

The name of this church will be called the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA. (herein referred to as the "Church".)

The Committee of Management of the Church herein shall be known as the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA MANAGEMENT COMMITTEE. (herein referred to as the "Management Committee").

SECTION 2: OBJECT

The object of the FREE WESLEYAN CHURCH OF TONGA IN AUSTRALIA is to promote religion and to uphold Christianity and Christian teachings and principles of the bible as observed and practiced by the Free Wesleyan Church of Tonga.

FUNCTIONS:

The functions of the management Committee shall be:-

(a) To administer the affairs of the Free Wesleyan Church of Tonga in Australia.

(b) To determine and to act for the Church in all matters both Legal, administrative or otherwise pertaining to the growth welfare of advancement of the Church in Victoria or in any part of Australia.

SECTION 3: MEMBERSHIP

As a religious body, a person who accept the doctrines of the said Church through baptism within the Church, truly acceptance of Christ and willing to become an active member of the Church, will be eligible to be a member of the Church.

There is no entrance fee or annual subscription to be paid to become a member of the Church.

SECTION 4: REGISTER OF MEMBERS

The secretary shall keep and maintain a register of members in which shall be entered the full name, address and date of entry of the name of each member and the register shall be available for inspection by members at the address of the Public Officer.

SECTION 5: MANAGEMENT COMMITTEE

The number of committee shall not be more than sixteen (16)

(b) The member of the committee shall be disqualified from holding office if:-

1. he or she shall become physically or mentally incapable of acting as a member of the committee.

ii. he or she tenders a written resignation to the committee.

1. he or she ceases to be a member of good standing in the committee or in the Church.

iv. if he or she ceases to be a member of the Church.

1. upon a resolution being passed by two thirds majority of committee present at a properly constituted general meeting specifically called for the purpose to remove him or her from from office.
2. if he or she is absent for more than six months without leave of the Committee from meetings of the Committee held during that period.
3. he or she commits an unlawful act or crime or is found guilty of any misbehaviour in law or in the rules of conduct of the christian faith;

SECTION 6. APPOINTMENT OF THE COMMITTEE

(a) The Committee shall consist of a: - Chairperson

Secretary

Treasurer

and such Other Officers as shall be decided by the members of the Church at the Annual Regional Conference.

The office-bearers and the other members of the Committee shall be elected annually at the Annual regional Conference of the Church in April each year.

(b) CASUAL VACANCIES

...

(c) The committee shall meet for the despatch of business adjourn and otherwise regulate their meetings as they think fit subject however to the following provisions:

i. MEETING & QUORUM

...

ii. CHAIRPERSON

A chairperson shall be elected for a period to be determined by the committee but if the chairperson is not be presented at a meeting of the committee, the participants may choose any of their members to be chairperson

iii. VOTING & DECISIONS

Questions arising at the meeting of the committee shall be determined by a majority of votes of those present and a determination by a majority of the members of the committee present shall for all purposes be a determination of the committee. In case of equality of votes the chairperson of the meeting shall have a second or casting vote

The members of the Church are entitled to vote by proxy at the general meetings

SECTION 7: MINUTE

...

SECTION 8: GENERAL MEETING

Holding of Annual General Meeting

1. With the exception of the first annual general meeting of the committee, the Annual General meeting of the committee shall be held during the month of APRIL in each year, just before the Annual Regional Conference. The annual report and audited financial statements shall be presented.
2. Notice of Annual General Meeting is to be served on the members of the committee by the Secretary personally or through the post at least a week before such meeting is to be held.
3. Notices of annual general meeting is to be accompanied by an Agenda consisting of all matters to be discussed at such meeting.

CALLING OF SPECIAL GENERAL MEETING:

Such special general meeting of the committee is only necessary on matters of the uttermost importance and urgency which cannot wait for discussions as the next General Meeting.

Any committee member desiring to bring any matter before a general meeting may give notice in writing of that matter to the Secretary and the chairperson of the Management committee.

Notice of such special general meeting is to be served by the Secretary within 24 hours of such meetings, either in writing or personally.

SECTION 9: POWER OF THE MANAGEMENT COMMITTEE

...

SECTION 10: CONDITIONS AND RESTRICTIONS

1. Before any transaction affecting land or property of the Church is determined by the committee such transaction MUST first be brought to the attention of the Church and its members in a meeting where members may express their views and opinions on such transactions and the committee e must first obtain the consent of the majority of members before any such transaction may be determined or completed.

...

PART II

THE CHURCH: ADMINISTRATION

SECTION 1: OFFICIALS

The officials of the Church will consist of the Church Minister and his assistant, the Secretary and his or her assistant, the Treasurer and the assistant and a Steward in each Suburb.

Apart from the Minister of religion, the elections of the officials is to be conducted at the same time as the appointing of the management committee at every Annual Regional Conference of the Church.

The Stewards of each suburban congregation will be elected by each suburb accordingly.

SECTION 2: MINISTER OF RELIGION

The Minister of the Church is the head representative and the chairperson of every meeting. He is responsible to the management of the Church "subject to the advice from the main Conference of the FREE WESLEYAN CHURCH OF TONGA". Moreover, he will organise both the spiritual and social activities of the Church in Australia.

...

SECTION 6: FUND, - SOURCE

The funds of the Church shall be derived from voluntary individual contribution, offering, donations and the Annual Missionary Festival donation of the Church.

...

SECTION 7: AMENDMENT OF RULES

Where a member of the committee or a member of the Church considers any of the provisions of these rules and Regulations unnecessary or requiring amendments it shall have power to amend, alter or cancel any of the rules and regulations by passing a Motion by a minimum of 75% majority vote of the Church present at the General meeting at which notice of the proposed amendment shall have been given.

A minimum of 21 days' notice to the members of the Church shall be implemented in concern with any amendment. Such amendments shall be sealed and witnessed as provide in the Rules herein.

Provided that the Minister of the Crown for the time being administering the Religious Successory and Charitable Trust Act 1958, and the Department of Business and Consumer Affairs, shall be notified of the amendment and such amendment shall not be effective unless the Minister and the department has signified their approval to such amendment being made.

473 By virtue of section 21(3) of the 1981 Act, the rules extracted above were to be supplemented by Model Rules in cases when the latter rules make provision for matters not covered by the former rules. The most up-to-date iteration of these Model Rules incorporated amendments up to 19 January 2010 and Schedule 4 to the Associations Incorporation Regulations 2009.

Model Rules under 1981 Act

4 Membership, entry fees and subscription

(1) A person who applies and is approved for membership as provided in these Rules is eligible to be a member of the Association on payment of the entrance fee and annual subscription payable under these Rules.

(2) A person who is not a member of the Association at the time of the incorporation of the Association (or who was a member at that time but has ceased to be a member) must not be admitted to membership unless -

(a) he or she applies for membership in accordance with sub-rule (3); and

(b) the admission as a member is approved by the committee.

(3) An application of a person for membership of the Association must -

(a) be made in writing in the form set out in Appendix 1; and

(b) be lodged with the Secretary of the Association.

(4) As soon as practicable after the receipt of an application, the Secretary must refer the application to the committee.

(5) The committee must determine whether to approve or reject the application.

(6) If the committee approves an application for membership, the Secretary must, as soon as practicable -

(a) notify the applicant in writing of the approval for membership; and

(b) request payment within 28 days after receipt of the notification of the sum payable under these Rules as the entrance fee and the first year's annual subscription.

(7) The Secretary must, within 28 days after receipt of the amounts referred to in sub-rule (6), enter the applicant's name in the register of members.

(8) An applicant for membership becomes a member and is entitled to exercise the rights of membership when his or her name is entered in the register of members.

(9) If the committee rejects an application, the committee must, as soon as practicable, notify the applicant in writing that the application has been rejected.

...

5 Register of members

(1) The Secretary must keep and maintain a register of members containing -

(a) the name and address of each member; and

(b) the date on which each member's name was entered in the register.

(2) The register is available for inspection free of charge by any member upon request.

(3) A member may make a copy of entries in the register.

6 Ceasing Membership

(1) A member of the Association who has paid all moneys due and payable by a member to the Association may resign from the Association by giving one month's notice in writing to the Secretary of his or her intention to resign.

(2) After the expiry of the period referred to in subrule (1) -

(a) the member ceases to be a member; and

(b) the Secretary must record in the register of members the date on which the member ceased to be a member.

...

9 Annual general meetings

(1) The committee may determine the date, time and place of the annual general meeting of the Association.

(2) The notice convening the annual general meeting must specify that the meeting is an annual general meeting.

(3) The ordinary business of the annual general meeting shall be -

(a) to confirm the minutes of the previous annual general meeting and of any general meeting held since that meeting; and

(b) to receive from the committee reports upon the transactions of the Association during the last preceding financial year; and

(c) to elect officers of the Association and the ordinary members of the committee; and

(d) to receive and consider the statement submitted by the Association in accordance with section 30(3) of the Act.

(4) The annual general meeting may conduct any special business of which notice has been given in accordance with these Rules.

(1) Upon any question arising at a general meeting of the Association, a member has one vote only.

(2) All votes must be given personally or by proxy.

(3) In the case of an equality of voting on a question, the Chairperson of the meeting is entitled to exercise a second or casting vote.

(4) A member is not entitled to vote at a general meeting unless all moneys due and payable by the member to the Association have been paid, other than the amount of the annual subscription payable in respect of the current financial year.

19 Proxies

(1) Each member is entitled to appoint another member as a proxy by notice given to the Secretary no later than 24 hours before the time of the meeting in respect of which the proxy is appointed.

(2) The notice appointing the proxy must be -

(a) for a meeting of the Association convened under rule 7(7), in the form set out in Appendix 2; or

(b) in any other case, in the form set out in Appendix 3.

474 In 2012 the Associations Incorporation Reform Act came into effect, replacing the 1981 Act. The relevant provisions are as follows:

Associations Incorporation Reform Act 2012

...

46 Rules constitute terms of contract

The rules of an incorporated association are taken to constitute the terms of a contract between the association and its members.

47 Requirements

(1) The rules of an incorporated association must specify-

(a) the name of the association; and

(b) the purposes of the association.

(2) The rules of an incorporated association must make provision for -

(a) each of the matters specified in Schedule 1 to the extent the matter is applicable to the association; and

(b) any other prescribed matters.

(3) An incorporated association that adopts the model rules without modification as its rules is taken to have met the requirements of subsection (2).

48 Rules of an incorporated association

(1) On the registration of an incorporated association under this Act, the rules of the association are -

(a) the rules that accompanied the application for the registration of the association; or

(b) if the application was accompanied by a statement that the model rules have been approved as the rules of the proposed incorporated association - the model rules.

(2) After an incorporated association is registered under this Act, the rules of the association are the rules referred to in subsection (1) as altered from time to time in accordance with this Part.

(3) If the rules of an incorporated association do not make provision for a matter as required by section 47(2), the model rules, to the extent that they make provision for that matter, are taken to be included in the rules of the association.

(4) A rule or purpose of an incorporated association that is inconsistent with this Act or contrary to law is of no effect.

49 Model rules

(1) The model rules are the rules prescribed to be model rules by the regulations.

(2) The model rules so prescribed must make provision for each matter specified in Schedule 1 and any other prescribed matter other than specifying -

(a) the name of the incorporated association;

(b) the purposes of the incorporated association;

(c) the financial year of the incorporated association.

(3) If an incorporated association approves the adoption of the model rules as its rules, it is taken to have adopted any subsequent amendment to the model rules as an alteration of its rules.

(4) An alteration to the rules of an incorporated association referred to in subsection (3) -

(a) takes effect on the day the relevant amendment to the model rules comes into operation; and

(b) takes effect without the requirement of a special resolution of the association; and

(c) does not require the approval of the Registrar.

(5) If an incorporated association that has approved the adoption of the model rules as its own rules alters those rules under section 50, other than an alteration to its name, purposes or financial year, the association is taken to have adopted its own rules and subsections (3) and (4) do not apply to those rules.

(6) An incorporated association may, by special resolution, approve the adoption of the model rules as the rules of the association at any time after its incorporation under this Act.

(7) An incorporated association that approves the adoption of the model rules as its own rules under subsection (6), must notify the Registrar and include in the notification -

(a) the name of the association;

(b) the purposes of the association;

(c) the financial year of the association.

50 Alteration of rules

(1) Subject to this Act, an incorporated association may, by special resolution, alter its rules.

...

(1) On the registration of an incorporated association under this Act, the members of the incorporated association are -

(a) in the case of an association incorporated under Division 1 of Part 2 - the persons who were members of the association immediately before its incorporation;

(b) in the case of a registrable body registered as an incorporated association under Division 2 of Part 2 - the persons who were members of the registrable body immediately before its registration under this Act;

(c) in the case of the amalgamation of two or more incorporated associations into a single incorporated association under Division 3 of Part 2 - the persons who were members of any of the incorporated associations so amalgamated immediately before the amalgamation.

(2) Other persons may be admitted as members of an incorporated association in accordance with its rules.

...

56 Register of members

(1) An incorporated association must keep and maintain a register of members in accordance with this section.

Penalty: 10 penalty units.

(2) The register of members must contain the following information about each person who is a member of the association -

(a) the person's name and address;

(b) if applicable - the class of membership of the person;

(c) the date on which the person became a member of the association.

(3) The date on which a person ceases to be a member of the association must be entered in the register of members within 14 days after that date.

(4) Information about a person who is no longer a member of the association, other than the name of the person and the date on which the person ceased to be a member of the association, must be removed from the register of members within 14 days after the person ceases to be a member of the association.

...

SCHEDULE 1

MATTERS TO BE PROVIDED FOR IN THE RULES OF AN INCORPORATED ASSOCIATION

The Association

1 The name of the incorporated association.

2 The purposes of the incorporated association.

Membership

1. The qualifications (if any) for membership of the incorporated association.
2. The entrance fees, subscriptions and other amounts (if any) to be paid by members of the incorporated association.

5 The rights, obligations and liabilities of members.

6 Provisions for the resignation of a member or cessation of membership.

1. The procedure (if any) for the disciplining of members and the mechanism (if any) for appearances by members in respect of disciplinary action taken against them.
2. The grievance procedures for settling disputes under the rules between the incorporated association and any of its members or between a member and any other member.

1. The name, membership and powers of the committee or other body having the management of the incorporated association (in this paragraph referred to as the committee) and -

(a) the election or appointment of members of the committee;

(b) the terms of office of members of the committee;

(c) the grounds on which, or reasons for which, the office of a member of the committee becomes vacant;

(d) the filling of casual vacancies occurring within the committee;

(e) the quorum and procedure at meetings of the committee.

1. The procedures for the appointment and removal of the secretary of the incorporated association.
2. The custody of records, securities and other relevant documents of the incorporated association.
3. Provisions for the custody and use of the common seal (if any) of the incorporated association.
4. Provision for members to have access to, and to be able to obtain copies of, the records, securities and other relevant documents of the incorporated association.

14 The preparation and retention of accurate minutes of -

(a) general meetings of the incorporated association; and

(b) meetings of the committee or other body having the management of the incorporated association.

1. Provision for members to have access to, and to be able to obtain copies of, minutes of general meetings of the incorporated association, including financial statements submitted at a general meeting.
2. Right of access (if any) by members to minutes of meetings of the committee, including any terms and conditions subject to which access may be granted.

1. The intervals between general meetings of members of the incorporated association and the manner of calling general meetings.
2. The quorum and procedure at general meetings and whether members are entitled to vote by proxy at general meetings.
3. The time within which, and the manner in which, notices of general meetings and notices of motion must be given, published or circulated.

1. The sources from which the funds of the incorporated association are to be or may be derived.
2. The manner in which the funds of the incorporated association must be managed and, in particular, the mode of drawing and signing cheques on behalf of the incorporated association.

1. The manner of altering and rescinding the rules of the incorporated association and of making additional rules.

1. The disposition of any surplus assets on the winding up or dissolution of the incorporated association.

...

SCHEDULE 4

TRANSITIONAL PROVISIONS

1 Definitions

(1) In this Schedule -

commencement day means the day on which section 224 comes into operation;

corresponding provision means a provision of this Act that re-enacts (with or without modification) a provision of the Associations Incorporation Act 1981;

old model rules means the model rules made under the Associations Incorporation Act 1981;

old rules, of an incorporated association, has the meaning given in clause 7(1).

(2) For the purposes of the definition of corresponding provision in subclause (1), in determining whether a provision is a corresponding provision -

(a) regard must be had to the substance of the provision; and

(b) if the provision appears to have expressed the same idea in a different form of words for the purposes of using a clearer style - the difference must be disregarded.

4 Incorporated Associations

(1) An association that, immediately before the commencement day, was incorporated under the Associations Incorporation Act 1981 is, on that day, taken to be incorporated under this Act.

(2) Subclause (1) does not affect the date of incorporation of an incorporated association referred to in subclause (1) which continues to be the date the association became incorporated under the Associations Incorporation Act 1981.

(3) On and from the commencement day, a certificate of incorporation issued under the Associations Incorporation Act 1981 to an incorporated association referred to in subclause (1) is taken to have been issued under this Act.

7 Incorporated Association may operate under old rules

(1) Subject to subclauses (2) and (3), an incorporated association may continue to operate under the rules of the association as in force immediately before the commencement day (the old rules) until the rules are altered in accordance with clause 8.

(2) While an incorporated association is operating under its old rules, if there is an inconsistency between those rules and any provision of this Act, the provision of this Act prevails except as provided in this Schedule.

(3) If the old rules of an incorporated association are the old model rules, the association may only operate under those rules for 12 months after the commencement date or until the rules are altered in accordance with clause 8.

(4) If, after the expiry of the period of 12 months commencing on the commencement date, an incorporated association operating under the old model rules has not taken either action referred to in clause 8(2), it is taken to have adopted the model rules under this Act and its old rules are of no effect.

(5) If -

(a) an incorporated association is operating under its old rules by virtue of subclause (1); and

(b) under those old rules there is an office holder of the association, separate to the office of public officer, who has the title of secretary -

any reference in this Act to the secretary of an incorporated association is not to be taken as a reference to that office holder.

(6) The Registrar may, in writing, approve changes to the composition of the office holders of an incorporated association that would otherwise be contrary to the rules of the association if satisfied those changes are necessary to facilitate the transition of the association from its old rules to rules that comply with this Act.

8 Alteration of old rules

(1) For the purposes of this clause, the rules of an incorporated association operating under its old rules are altered when -

(a) the association has notified the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or

(b) the Registrar, subject to subclause (3), has approved the alteration of the association's rules under section 50.

(2) Within 12 months after the commencement day, an incorporated association operating under the old model rules must -

(a) notify the Registrar in accordance with section 49(7) that it has approved the adoption of the model rules under this Act as its own rules; or

(b) apply in accordance with section 50 for the approval of the alteration of its rules.

(3) The Registrar must not approve the alteration of the old rules of an incorporated association unless satisfied that all the rules as altered comply with this Act.

For the purposes of this clause, an alteration, of the rules of an incorporated association, includes the substitution of its old rules with new rules.

475 New Model Rules were developed to accompany the 2012 Act; they are found under schedule 4 of the Associations Incorporation Reform Regulations 2012. Relevant provisions are as follows:

Model Rules for an Incorporated Association

8 Who is eligible to be a member

Any person who supports the purposes of the Association is eligible for membership.

9 Application for membership

(1) To apply to become a member of the Association, a person must submit a written application to a committee member stating that the person -

(a) wishes to become a member of the Association; and

(b) supports the purposes of the Association; and

(c) agrees to comply with these Rules.

(2) The application -

(a) must be signed by the applicant; and

(b) may be accompanied by the joining fee.

10 Consideration of application

(1) As soon as practicable after an application for membership is received, the Committee must decide by resolution whether to accept or reject the application.

(2) The Committee must notify the applicant in writing of its decision as soon as practicable after the decision is made.

(3) If the Committee rejects the application, it must return any money accompanying the application to the applicant.

(4) No reason need be given for the rejection of an application

11 New Membership

(1) If an application for membership is approved by the Committee-

(a) The resolution to accept the membership must be recorded in the minutes of the committee meeting; and

(b) The Secretary must, as soon as practicable, enter the name and address of the new member, and the date of becoming a member, in the register of members.

(2) A person becomes a member of the Association and, subject to rule 13(2), is entitled to exercise his or her rights of membership from the date, whichever is the later, on which-

(a) the Committee approves the person's membership; or

(b) the person pays the joining fee

...

14 Associate members

(1) Associate members of the Association include -

(a) any members under the age of 15 years; and

(b) any other category of member as determined by special resolution at a general meeting.

(2) An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.

...

16 Ceasing membership

(1) The membership of a person ceases on resignation, expulsion or death.

(2) If a person ceases to be a member of the Association, the Secretary must, as soon as practicable, enter the date the person ceased to be a member in the register of members.

(1) A member may resign by notice in writing given to the Association.

(2) A member is taken to have resigned if -

(a) the member's annual subscription is more than 12 months in arrears; or

(b) where no annual subscription is payable -

(i) the Secretary has made a written request to the member to confirm that he or she wishes to remain a member; and

(ii) the member has not, within 3 months after receiving that request, confirmed in writing that he or she wishes to remain a member.

18 Register of members

(1) The Secretary must keep and maintain a register of members that includes -

(a) for each current member -

(i) the member's name;

(ii) the address for notice last given by the member;

(iii) the date of becoming a member;

(iv) if the member is an associate member, a note to that effect;

(v) any other information determined by the Committee; and

(b) for each former member, the date of ceasing to be a member.

(2) Any member may, at a reasonable time and free of charge, inspect the register of members.

30 Annual general meetings

(1) The Committee must convene an annual general meeting of the Association to be held within 5 months after the end of each financial year.

(2) Despite subrule (1), the Association may hold its first annual general meeting at any time within 18 months after its incorporation.

(3) The Committee may determine the date, time and place of the annual general meeting.

(4) The ordinary business of the annual general meeting is as follows -

(a) to confirm the minutes of the previous annual general meeting and of any special general meeting held since then;

(b) to receive and consider -

(i) the annual report of the Committee on the activities of the Association during the preceding financial year; and

(ii) the financial statements of the Association for the preceding financial year submitted by the Committee in accordance with Part 7 of the Act;

(c) to elect the members of the Committee;

(d) to confirm or vary the amounts (if any) of the annual subscription and joining fee.

(5) The annual general meeting may also conduct any other business of which notice has been given in accordance with these Rules.

...

33 Notice of general meetings

(1) The Secretary (or, in the case of a special general meeting convened under rule 32(3), the members convening the meeting) must give to each member of the Association -

(a) at least 21 days' notice of a general meeting if a special resolution is to be proposed at the meeting; or

(b) at least 14 days' notice of a general meeting in any other case.

(2) The notice must -

(a) specify the date, time and place of the meeting; and

(b) indicate the general nature of each item of business to be considered at the meeting; and

(c) if a special resolution is to be proposed -

(i) state in full the proposed resolution; and

(ii) state the intention to propose the resolution as a special resolution; and

(d) comply with rule 34(5).

(3) This rule does not apply to a disciplinary appeal meeting.

34 Proxies

(1) A member may appoint another member as his or her proxy to vote and speak on his or her behalf at a general meeting other than at a disciplinary appeal meeting.

(2) The appointment of a proxy must be in writing and signed by the member making the appointment.

(3) The member appointing the proxy may give specific directions as to how the proxy is to vote on his or her behalf, otherwise the proxy may vote on behalf of the member in any matter as he or she sees fit.

(4) If the Committee has approved a form for the appointment of a proxy, the member may use any other form that clearly identifies the person appointed as the member's proxy and that has been signed by the member.

(5) Notice of a general meeting given to a member under rule 33 must -

(a) state that the member may appoint another member as a proxy for the meeting; and

(b) include a copy of any form that the Committee has approved for the appointment of a proxy.

(6) A form appointing a proxy must be given to the Chairperson of the meeting before or at the commencement of the meeting.

(7) A form appointing a proxy sent by post or electronically is of no effect unless it is received by the Association no later than 24 hours before the commencement of the meeting.

(1) On any question arising at a general meeting -

(a) subject to subrule (3), each member who is entitled to vote has one vote; and

(b) members may vote personally or by proxy; and

(c) except in the case of a special resolution, the question must be decided on a majority of votes.

(2) If votes are divided equally on a question, the Chairperson of the meeting has a second or casting vote.

(3) If the question is whether or not to confirm the minutes of a previous meeting, only members who were present at that meeting may vote.

(4) This rule does not apply to a vote at a disciplinary appeal meeting conducted under rule 24.

A special resolution is passed if not less than three quarters of the members voting at a general meeting (whether in person or by proxy) vote in favour of the resolution.

46 President and Vice-President

(1) Subject to subrule (2), the President or, in the President's absence, the Vice-President is the Chairperson for any general meetings and for any committee meetings.

(2) If the President and the Vice-President are both absent, or are unable to preside, the Chairperson of the meeting must be -

(a) In the case of a general meeting - a member elected by the members present; or

(b) In the case of a committee meeting - a committee member elected by the other committee members present.

476 At the meeting on 18 July 2015, the Church purported to adopt the new model rules, with various amendments. Some of the purported relevant amendments are as follows. Underlined sections denote bespoke rules purportedly inserted at the meeting. Struck through sections denote Model Rules purportedly deleted in the meeting.

4 Definitions

Application for membership means a written signed application for membership by a person who wishes to become a member of the Association, who supports the purposes of the Association and who agrees to comply with the Rules of the Association, who has been baptised, and who has given a testimony in person before the Local Church Group, followed by the giving of testimony before the members of the Association whose names are on the Register of Members, and who has been accepted for such membership by a majority of such members voting in favour of the person's acceptance of membership.

Class group means a group of members of the Association that the Committee appoints to be such a group of members

Conduct prejudicial to the Association means and includes the taking of legal proceedings against the Association or against any member of the Committee.

9 Application for membership

(1) To apply to become a member of the Association, a person must submit a written application to a committee member stating that the person -

(a) wishes to become a member of the Association; and

(b) supports the purposes of the Association; and

(c) agrees to comply with these Rules.

(2) The application

(a) Must be signed by the applicant; and

(b) May be accompanied by the joining fee.

(2) The application must be made on the form prescribed in Schedule 2, contain the information required by that form and be signed by the applicant.

14 Associate members

(1) Associate members of the Association include -

(1) Associate members of the Association include -

(a) any members under the age of 15 years; and

(a) persons who attend church services and functions on the Associations premises, who have not made a written application for membership followed by the giving in person of their testimony, and who have not been approved by the Committee to be members.

(b) any other category of member as determined by special resolution at a general meeting.

(2) An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.

(2) An associate member must not vote but may have other rights as determined by the Committee or by resolution at a general meeting.

16 Ceasing Membership

(1) The membership of a person ceases on resignation, expulsion or death.

(2) If a person ceases to be a member of the Association, the Secretary must, as soon as practicable, enter the date the person ceased to be a member in the register of members.

(2) on the date that the Minister gives, at the member's request, a letter of recommendation of the member to another Church; and

(3) on the date that a member

(a) takes or continues any legal proceedings against the Association or ay committee member; or

(b) gives a document or statement that supports a member or former member in any legal proceedings taken by that member or former member against the Association or against any Committee member.

17 Resigning as a member

(1) A member may resign by notice in writing given to the Association.

(2) A member is taken to have resigned if -

(a) the member's annual subscription is more than 12 months in arrears; or

(b) where no annual subscription is payable -

(i) the Secretary has made a written request to the member to confirm that he or she wishes to remain a member; and

(ii) the member has not, within 3 months after receiving that request, confirmed in writing that he or she wishes to remain a member.

46 President and Vice-President

(1) Subject to subrule (2), the President or, in the President's absence, the Vice-President is the Chairperson for any general meetings and for any committee meetings.

(2) If the President and the Vice-President are both absent, or are unable to preside, the Chairperson of the meeting must be -

(a) In the case of a general meeting - a member elected by the members present; or

(b) In the case of a committee meeting - a committee member elected by the other committee members present.

(3) The Minister is by virtue of his office (ex officio) the President or Chairperson of the Association.

[1] Associations Incorporation Act 1981, s 14(1)(a).

[2] Transcript of Proceedings, Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (Supreme Court of Victoria) 404, 1757 ('T').

[4] Defendant's Court Book, 147 ('DCB').

[17] T 258 (Mr Tautanoa), 471 (Mr Ofamo'oni), 1070 (Mr Kafoika), 1205 (Mr Vea), 1303 (Mr Halahala), 1416 (Ms Kalu) and 2068 (Mr Wall).

[23] See Moala v Free Wesleyan Church (Ruling No 4) [2017] VSC 635.

[27] Plaintiffs' Exhibit A-3, affidavit of Fohe Tautalanoa sworn 26 July 2016 [4].

[30] Defendant's closing submissions, 28 February 2018, 7.

[38] Plaintiffs' Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017 [9].

[40] Plaintiffs' Exhibit C-1, outline of evidence of Ana'uta Grima dated 23 April 2017 [8]-[10].

[41] Plaintiffs' Exhibit C-3, affidavit of Ana'uta Grima sworn 23 May 2015 [3].

[57] Rules and Regulations of the Church (1991) s 6.

[62] Clause 8(ii) (first edition); chapter C, 2, I (second edition).

[83] Plaintiffs' Exhibit MFI-B, description of the plaintiffs' contentions about the monies advanced to the church by Mr Fohe Tautalanoa in the years designated.

[84] Plaintiffs' Exhibit MFI-D, Ms Grima's statement of recorded donations.

[85] Plaintiffs' Exhibit G, list of donations provided by Pita Ofamo'oni.

[86] Plaintiffs' Exhibit J, collaboration of offering made by plaintiff number fourteen - Tevita Kafoika.

[87] Plaintiffs' Exhibit M, collaboration of offering made by plaintiff number three - Tuia Vea.

[88] Plaintiffs' Exhibit N-4, collaboration of offering made by plaintiff number fourteen - Vika Tautalanoa.

[89] Plaintiffs' Exhibit P, collaboration of offering made by plaintiff number twenty-six - Sione Militoni Halahala.

[90] Plaintiffs' Exhibit R, collaboration of offering made by plaintiff number six - Silatolu Taunisila.

[92] Taken from Plaintiff's exhibit A-2, Affidavit of Fohe Tautalanoa dated 1 December 2014.

[93] Taken from Plaintiff's exhibit C-2, Affidavit of Ana Grima dated 1 December 2014.

[102] Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201 [18] (Stanley J).

[103] The plaintiffs relied on Nurses Memorial Centre of South Australia Incorporated v Beaumont (1987) 44 SASR 454 at 468 (von Doussa J).

[104] It is unclear if the bracketed words were part of the previous words or were part of a separate heading on the next page. The asterisk after 'Section 3' is because the next number was cut off on photocopying.

[115] Plaintiffs' Exhibit O-4, further outline of evidence of Sione Halahala filed 15 February 2018.

[118] [2010] WASCA 189.

[119] Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 at [76] (Maxwell P).

[120] [1998] HCA 28; (1998) 194 CLR 355.

[121] See Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 at [76] (Maxwell P).

[122] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 389 [92] (McHugh, Gummow, Kirby and Hayne JJ).

[123] [1909] HCA 28; (1909) 8 CLR 673 at 679.

[130] [2015] NSWSC 637, [132][133] and appeal dismissed Free Serbian Orthodox Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28.

[133] The term 'Catechumen' is used with a different meaning from its more frequent use as a person who is being taught the basics of Christianity often as preparation for baptism.

[147] Defendant's Exhibit 11, outline of evidence of Haitelenisia Tu'Akoi dated 2 May 2017, [30]-[31].

[151] Plaintiffs' Exhibit F-1, outline of evidence of Pita Ofamo'oni filed 24 April 2017, 2.

[154] Defendant's Exhibit 3, outline of evidence of Sione Tu'Akoi dated 2 May 2017 [65].

[158] Plaintiffs' Exhibit F-1, outline of evidence of Pita Ofamo'oni filed 24 April 2017, [9]−[10].

[168] Defendant's Exhibit Q-2, affidavit of Silatolu Taunisila sworn 23 May 2015, [13].

[170] Defendant's Exhibit D, Outline of Evidence Mele Tonga Taufa [28].

[205] T 243 (F Tautalanoa). See also T 1061-4.

[221] Plaintiffs' Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017.

[226] Plaintiffs' Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017 [13].

[229] Plaintiffs' Exhibit C-3, affidavit of Ana'uta Grima sworn 23 May 2015.

[230] Plaintiffs' Exhibit C-2, affidavit of Ana'uta Grima sworn 30 November 2014, 1.

[232] Plaintiffs' Exhibit C-1, outline of evidence of Ana'uta Grima dated 23 April 2017 [35].

[234] Plaintiffs' Exhibit C-3, affidavit of Ana'uta Grima sworn 23 May 2015 [2].

[236] Plaintiffs' Exhibit O-4, further outline of evidence of Sione Halahala filed 14 February 2018, [4].

[237] Plaintiffs' Exhibit O-3, affidavit of Sione Halahala filed 5 August 2016, [8]-[9].

[244] Plaintiffs' Exhibit T-1, affidavit of Christine Moala filed 1 December 2014 [19].

[246] T 457; Plaintiffs' Exhibit F-1, outline of evidence of Pita Ofamo'oni dated 23 April 2017, 1.

[248] Plaintiffs' Exhibit F-1, outline of evidence of Pita Ofamo'oni dated 23 April 2017, [7]; T 466.

[253] Plaintiffs' Exhibit S-3, outline of evidence of Toakase Kalu filed 24 April 2017, 3.

[256] Defendant's Exhibit 8, outline of evidence of Mele Tonga Taufa dated 2 May 2017, 4.

[257] Defendant's Exhibit 3, outline of evidence of Sione Tu'akoi dated 2 May 2017, [50] - [54].

[259] Defendant's Exhibit 12, outline of evidence of Fefita Langoia dated 2 May 2017, [21]-[23].

[261] See also Ms Kalu T 1423, Ms Taufa T 2017, Mr Wall T 2064, Ms Palavi T 2172-3.

[266] Lewis v Heffer [1978] 1 WLR 1061 at 1076.

[277] T 635, 641, 1110-1111, 1239, 1294, 1376, 1461.

[279] Seventh Further Amended Statement of Claim [14].

[280] Some reference was also made to rule 4(10)(b) of the Model Rules under the A_ssociations Incorporation Act 1981_, which seems to contemplate the cessation of membership under common law doctrines.

[281] [2006] VSC 93.

[282] [1973] 1 Ch 51, 62.

[283] Plaintiffs' Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017, [10]-[11]; T 1248. Vika Tautalanoa also listed those 59 persons as the founding members of the Association as at 3 March 1991. There was some uncertainty in her evidence as at one point she said that those people had become members since 1991 (T 1252), whereas she and Mr Tautlanoa had been members from about 1978. Grima remembered the same 59. The 59 seem to have derived from the defendant's defence (see [243]).

[284] Plaintiffs' Exhibit A-1, outline of evidence of Fohe Tautalanoa dated 4 April 2017, [14].

[285] T 435-6, see the record of those who had left DCB 426.

[286] Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [52].

[287] Defendant's Exhibit 3, outline of evidence of Sione Tu'akoi's dated 2 May 2017, [75(e)].

[289] Grima T 4334; Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [47].

[290] Grima T 433-4; Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [48].

[291] Grima T 435; Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [48]; Defendant's Exhibit 3, outline of evidence of Sione Tu'akoi's dated 2 May 2017, [74].

[292] Defendant's Exhibit 3, outline of evidence of Sione Tu'akoi's dated 2 May 2017, [71].

[293] Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [41].

[295] Defendant's Exhibit 3, outline of evidence of Sione Tu'akoi's dated 2 May 2017, [71].

[297] T 1806-1807; Plaintiffs' submissions of 1 March 2018, 13.

[304] See defence paragraph 10 (f) particulars.

[305] See generally McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 at 785 (Campbell J).

[306] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, 410 [4] (Kiefel CJ); 430 [89] (Nettle and Gordon JJ); 437-438 [134] (Edelman J).

[307] Defendant's Exhibit 4, outline of evidence of Lupe Beeson dated 2 May 2017, [58].

[309] Ibid [39]: says that he left in 1989 to join a different Tongan church.

[310] Ibid [39]: says that he left in 1989 to join a different Tongan church.

[312] The defendant did not rely on the failure to respond to the Secretary's letter as being a deemed resignation by the 10 disputed founding members. There was no evidence that the letter was sent to them.

[313] Defence to 7th SOC para [13]; T 1678; 2424-2425 and T 1814 (S.Tu'akoi).

[315] Associations Incorporation Act 1981 s 21(3).

[320] Schedule 1 of the Rules as inserted by the amendments also deals with the requirements of membership.

[322] See Associations Incorporation Regulations 1983 sch 3.

[323] Associations Incorporation Act 1981, s 21(3).

[324] Associations Incorporation Reform Act 2012, ss 47(2)(a), 48(3), Schedule 1; Associations Incorporation Reform Regulations 2012 sch 4.

[325] Associations Incorporation Reform Act 2012, Sch 1 cl 1(1) 'commencement day'.

[326] Associations Incorporation Reform Act 2012, s 2(1).

[328] New model rules r 17; cf old Model Rules r 6(1).

[330] New model rules r 20; cf old Model Rules r 7.

[331] New model rules r 56; cf old Model Rules r 24.

[336] Defendant's outline of closing submissions [127].

[341] Defendant's outline of closing submissions [123], see [5] for list of members alleged by the defendant to have ceased their membership.

[342] A D Lang, Horsley's Meetings: Procedure, Law and Practice (LexisNexis Butterworths, 7th Edition, 2015), 37_; Smyth v Darley_ [1849] EngR 870; (1849) 2 HL Cas 789; 9 ER 1293; Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corporation (1975) 11 SASR 504, 527; 33 LGRA 70; Royal Mutual Benefit Building Society v Sharman [1963] 2 All ER 242; 1 WLR 581.

[367] Plaintiffs' Exhibit C-1, outline of evidence of Ana'uta Grima dated 23 April 2017, [48]−[50], [52]−[53]; Plaintiffs' Exhibit T-2, outline of evidence of Christine Moala dated 19 April 2017 [12]−[22]; Defendant's Exhibit 9, outline of evidence of Robert Wall dated 2 May 2017, [17]−[37].

[369] [1998] VSCA 3; [1999] 1 VR 466.

[371] [2006] WASC 96, [100], cited and approved by Edelman J in N_orthwest Capital Management v Westate Capital Ltd_ [2012] WASC 121 at [130]- [131].

[373] (1971) 18 FLR 83.

[374] Ibid 84-85 (Spicer CJ and Smithers J agreeing).

[375] [2014] VSC 367.

[377] (1971) 18 FLR 83.

[378] (1971) 18 FLR 83 at 84 (Spicer CJ and Smithers J agreeing).

[380] Steuart v Oliver (1971) 18 FLR 83 at 88 and Politis v Trewin [2011] NTSC 78 [37]-[38].

[381] [2005] NSWSC 1005; (2005) 194 FLR 322.

[382] Ibid [94]-[95], [98], [108].

[384] [2010] WASCA 189 [84].

[387] See, eg, Kavourakis v Waverley Bowling & Recreation Club Ltd [2010] NSWSC 439, [34] (Barrett J).

[388] [1902] AC 117 ('Whitechurch').

[390] Associations Incorporation Reform Act 2012 (Vic) s 29.

[392] [1964] AC 993.

[393] Ibid 1016-1017 (Viscount Radcliffe, Lord Morris of Borth-y-Gest and Lord Guest).

[396] [2003] NSWCA 305, [51]-[56].

[397] [1916] HCA 61; (1916) 22 CLR 176.

[398] Ibid 178-179 (Barton J agreeing).

[399] [1982] FCA 166; (1982) 2 IR 166.

[400] (1982) 2 IR 166 at 168.

[401] (1988) 164 CLR 387.

[403] (1990) 170 CLR 394 at 445 (emphasis added).

[404] Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, 547 (Dixon J).

[405] Walton Stores at 404, citing Grundt v Great Boulder Pty Limited (1937) 59 CLR 640.

[406] Newbon v City Mutual Life Assurance Society Limited [1935] HCA 33; (1935) 52 CLR 723, 738 (Starke J).