POPOVIC v TANASIJEVIC & ORS

When the matter subsequently came before me for the pronouncing of a formal order in light of my reasons, the parties were at odds as to the proper format of that order. Mr Sallis, of counsel for the plaintiffs, had produced very lengthy minutes which, in effect, sought many and varied declarations reflecting findings made in my published reasons. Mr Ross-Smith, of counsel for the defendants, objected to that draft, inter alia, on the basis that many of the proposed declarations were, in form, not declarations of right, but declarations of fact. I expressed agreement with that contention and declined to accede to the draft minutes.

I have now received full written and oral submissions from the parties concerning the form in which the order should be expressed. The present, supplementary reasons address those aspects.

It will be recalled that, in the reasons, I concluded that the affairs of the SCWA had, within the meaning of s61 of the Associations Incorporation Act 1985, been conducted in a manner that was oppressive to its members and contrary to the interests of the members as a whole.

I arrived at those conclusions upon multiple bases. In the broad, and without now seeking to be fully definitive, I based my conclusions on findings that:-

(1) The defendants had caused an amended Constitution and Rules to be registered with the Corporate Affairs Commission, which purported to evidence significant changes to eligibility for membership of the SCWA and of the mode of composition and election of its committee of management, when that Constitution and Rules had not lawfully been adopted by the membership of the SCWA; and

(2) There had been gross departures from the proper and lawful administration of the affairs of the SCWA.

(1) The committee of management of the SCWA had, in effect, abdicated its responsibilities and permitted the defendant Tanasijevic to enter into the various financial transactions adverted to earlier in the reasons and to direct the making of payments not for the direct purposes or in the interests of the SCWA, without the authority of either a general or specific resolution of the committee;

(2) Meetings of the SCWA had not been lawfully convened or purported meetings had not been convened at all, nor resolutions lawfully passed, as recited in the reasons;

(3) Amendments to the Constitution and Rules of the SCWA had been registered when it was patent that they had not lawfully been passed;

(4) Purported committees had been "elected" in contravention of the Constitution and Rules of the SCWA and had assumed control of its affairs;

(5) Ineligible parties had unlawfully been admitted to "membership" of the SCWA and permitted to participate in and vote at general meetings in substantial numbers;

(6) Tanasijevic had unlawfully assumed the prerogative of inviting persons to become members of committees of the SCWA and also of removing them at will;

(7) He had conducted meetings in an arrogant, autocratic and undemocratic fashion;

(8) Membership records of the SCWA had been falsified to mislead the witness Boys.

(9) Whilst the SCWA was under the de facto domination of Tanasijevic, proper books, records and accounts had not been maintained either in a timely manner or, in part, at all; and

(10) In general, the SCWA had not discharged its obligations pursuant to the Act either in a timely manner, or, in certain respects, at all.

As readily emerges from a perusal of the reasons, extreme difficulty arose on the evidence, by virtue of the maladministration not only of the SCWA, but also of its parent body, the SCSA, in determining who, at relevant times, were the lawful members of both bodies and of their respective committees of management.

This was a matter of paramount importance, in view of the fact that the Constitution and Rules of the SCWA, as they originally stood, stipulated that:-

(a) the membership of the SCWA was to be made up of the Committee of the SCSA;

(b) the committee of the SCWA was to be comprised of various office holders and members "who hold the same office in the Committee of" the SCSA; and that

(c) the office of committee member of the SCWA was to become vacant, inter alia, if that member was "no longer duly appointed as a person on the Committee of" the SCSA.

In the reasons I traversed the somewhat chaotic history of what had occurred within both entities - a task rendered extremely difficult by failures to maintain proper membership records and to administer either entity according to law.

In my view, there can be no doubt that the only practical method of correcting the Constitution and Rules of the SCWA, as presently registered, is by making an appropriate order, pursuant to s61(2) of the Act for the alteration of the rules of that association. Whilst they stand in their present registered form and, in light of the events which have occurred, this would appear to me to be the only method by which the necessary amendment can be achieved on a basis which is beyond legal challenge.

Having regard to the type of reasoning adverted to in Scott v Frank F Scott (London), Limited & Ors [1940] 1 Ch 794 and Evans v Chapman (1902) 86 L.T. 381, mere declaratory relief would not be an adequate means of authorising registration of some desirable corrective alteration.

The issue which then arises is as to what corrective alteration is appropriate in the circumstances. Mr Sallis argues that all that is required is an order which restores the original status quo in relation to the Constitution and Rules, coupled with declarations as to who are the present lawful members of the SCWA and of its committee of management.

This, in turn, gives rise to a need to reflect upon my findings as to what has occurred within the SCSA, up to the present time.

It will at once be observed from the reasons that there has not been any evidence of the existence of a properly documented, continuous record of the membership of the SCSA. Having analysed the evidence led before me I had this to say:-

"All that can be said with confidence is that at least the 18 organisations referred to in lists of attendees at the various Annual General Meetings of the SCSA were consistently recognised as its members (see exhibits D39 and D42 cf exhibit D62); and that recent acceptance of membership fees of the several bodies who have paid them also evidence a similar, ongoing acceptance."

The organisations listed in exhibits D39 and D42 are:-

8. Association of Ex Servicemen "Draza Mihajlovic"

[Note: These are abbreviated titles. The full, correct titles are not readily available on the material before me.]

Other probable members appear, on a perusal of exhibits P75 and P76, to be:-

There is a possible need to investigate certain cancellations of membership referred to in exhibits P75 and P76. It is also possible that the Serbian St Sava Association, Woodville Park has also been a member since 1996, but the records are not entirely clear. Membership fees appear to have been paid by it for at least the year 1996.

[Once again, these names are abbreviated formats. The full, correct titles do not readily emerge on the evidence.]

My conclusions as to this membership are no more than evidentiary findings of fact for the purposes of these proceedings. It is inappropriate to make formal declarations of right as to that topic, because neither the SCSA nor the organisations referred to are parties to these proceedings.

I have also found that, as at 10 December 1995, the only lawful members of the committee of management of the SCSA were Toma Popovic (President), Rade Jovicevic (Vice President), Ratka Rakich (Secretary), Milorad Mijatovic (Treasurer), Danny Jurkovic (Public Officer) and Milenko Rakic, Olga Lopac and Jovan Kleut (Members).

Having made the foregoing findings in the reasons I expressed the following views:-

"In those circumstances, it is unnecessary to make many of the formal declarations, as sought in the statement of claim. Apart from making appropriate declarations as to the status of the personal plaintiffs, the invalidity of the presently registered Constitution and Rules, and, if necessary, the true membership of the SCWA, the most efficacious course is to make any necessary orders pursuant to s 61(2) to regularise its affairs. Amongst other considerations there is also the need to replace the present unlawfully registered Constitution and Rules with an appropriate and lawful Constitution and Rules. In this regard, it seems to me that there is considerable merit in the point of view that, in the present circumstances, the scheme of the Constitution and Rules of the SCWA is no longer workable and that, to regularise the present chaotic situation, there will, particularly, need to be a declaratory rule inserted which stipulates who are, and, in future, should be eligible to be, the present members of the SCWA and how its committee of management should be constituted. Other amendments may be desirable."

From a purely practical viewpoint I do not resile from those opinions. Following publication of the reasons I made a suggestion as to a possible approach, which might lead to a restoration of harmony within the Serbian community and provide a way forward for the future. Alas, that was not to be!

The plaintiffs contend that, on my findings, they are entitled to relevant declarations of right, a restoration of the former Constitution and Rules of the SCWA as they stood prior to 30 October 1993, and an appropriate declaration related to the financial situation as between Tanasijevic and the SCWA. They argue that the future will need to be determined by the proper lawful processes within both the SCWA and the SCSA, particularly as the latter's membership reflects most of the Serbian Community Groups in this State.

I am by no means convinced that such an approach constitutes a very satisfactory formula for future harmony, or even practical efficiency in the conduct of the affairs of the SCWA.

However, having heard the competing views of the parties, I am driven to the conclusion that, as a matter of law, the plaintiffs are legally entitled to that which they seek, having regard to the findings which I have made. Despite my misgivings in a practical sense, the fact is that this will bring about a reversion to what was originally intended when the SCWA was brought into existence. It is not for me to foist on the parties a totally different constitutional structure, even if I consider that this might be more attuned to the present operating requirements. After all the oppression which is currently being addressed is, in large measure, a failure to observe and implement the Constitution and Rules of the SCWA, according to their original tenor.

Accordingly, (whatever may be my misgivings) there must be an order in terms of the attached minutes. In so pronouncing I do not ignore the submission of the defendants that the claim of the third plaintiff ought, formally, to be dismissed. In my view this is inappropriate. I have not found it necessary to reach a final conclusion as to his locus standi. In any event, he simply joined with the other plaintiffs in seeking the relief claimed in this action.