Radmanovich v Nedeljkovic

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1354/99 - RADMANOVICH v NEDELJKOVIC JUDGMENT 1 HIS HONOUR: On 15 October 2001 I made final orders in these proceedings. Order 12 of the orders I made was as follows: "Order that the Trustees be directed: 12.1 to settle a provisional list of members of the Church School Community. 12.2 any dispute as to the provisional list be referred for adjudication by a Master. 12.3 subject to the supervision of the Court to exercise the powers of the Management Committee of the Church School Community for the purpose of convening an Extraordinary Meeting of the Church School Community to elect a Management Committee in accordance with the 1950 Rules." 2 Order 13 gave liberty to apply on fourteen days' notice, save for one aspect where I reserved two days' notice. 3 Order 14 was to reserve further questions of costs. 4 The order does not contain any reservation of further consideration. 5 The Master sought to commence his enquiry under order 12. On 4 March the learned Master noted that the parties were not in agreement as to the effect of the order made on 15 October, and that they proposed to approach me to seek clarification. The matter was put in my list today without, it would appear, any formal notice of motion for this purpose. 6 The initial procedural problem is that final orders have been made and have been passed and entered. The trial judge cannot clarify his or her order after that has occurred. The trial judge cannot say "what I meant by my order was such and such". He or she is functus. 7 There is power in a separate suit for any judge of the court to make a declaratory order as to what a previous order of the court means, but in doing that the court construes it just like any other document. It does not delve into the subjective intention of the judge pronouncing the order; see eg Ex parte Herman; Re Mathieson (1960) 78 WN (NSW) 6. 8 Liberty to apply does not enable a judge after a final order to completely review it. It is said over and over again in the cases, unfortunately in rather obscure language, that the court's power is limited under liberty to apply to the working out of the order that has been made. The court cannot under liberty to apply adjudicate on any question which it was not necessary to determine at the time of making the final decision, nor can it make any declaratory order, nor, I would have thought, an institutive order. There is no doubt at all that it can make executive orders, that is an order by way of remedy, or an order such as the appointment of a new trustee, or additional orders. This appears from cases such as Poisson and Woods v Robertson and Turvey (1902) 50 WR 260; Dowdle v Hillier (1949) 66 WN (NSW) 155 and Cristel v Cristel [1951] 2 KB 725. 9 That lastmentioned case actually dealt with what might be called the question of construction of an order as to whether the word "house" included "flat", but the court considered that that was beyond the terms of liberty to apply; see also the authorities referred to in Halsbury's Laws of England 4th ed (Butterworths, London, 1979) vol 26 para 554. 10 There seem to be three possible exceptions. First, it would appear that where there is an administration suit before the court, and there are a series of interests in succession, then it may be that the court can deal with the interests of the persons who are then alive, and give liberty to apply to persons who may subsequently be ascertained when that arises; see, for instance, Kevan v Crawford (1877) 6 Ch D 29. Probably that follows because the whole of the administration of the estate is before the court. 11 Secondly, when a declaratory order is made the court has a power to make the appropriate executive order to carry out the declaration, if it is not obeyed; see Royal Insurance Company v Mylius (1926) 38 CLR 477, 497. That has also been applied in cases where the order has not been final, that is, that there is an implied liberty to apply where that is not expressly stated; see for instance, Penrice v Williams (1883) 23 Ch D 353. 12 It is true too that some judges have perhaps gone a little further. If one looks at Re Smith (1953) 53 SR (NSW) 517, 520 C McLelland J said: "I also reserve liberty to apply so that if there are any obstructive tactics (and I say that advisedly) I still reserve liberty to deal with them … ." 13 That would seem to be beyond the traditional order of liberty to apply, but it is, of course, well within the jurisdiction of a Supreme Court judge to so pronounce it. 14 It seems to me that in the instant case I cannot declare what the order meant. I cannot say subjectively what I might have meant. All I can do is to give assistance to the Master in carrying out his task, that being a matter which comes within the working out of the order. 15 A number of possible ways of going about what is mentioned in 12.1 were suggested during argument. One was to look at the 1998 Rules and work out who were the members under those Rules. Another one was to establish the criteria for membership and work out who was eligible to be a member and list those persons. Neither of those methods appear to be correct. 16 What 12.1 of the order directed was that there be a provisional list of members settled by the trustees; ie the trustees were to produce a list of members which provisionally would stand as the list of members. It was to be a list of members, not a list of people who should be members; ought to have been members; or were qualified to be members, but a list of persons who were members as claimed by the trustees. 17 Step 12.2 was to allow the plaintiffs to say: (a) some of the people on that list, or all of the people on that list are not members; or (b) some people who are not on that list are members; and the Master would then adjudicate on that question. 18 The interpretation put up by the trustees as to what they intend to do, with great respect, seems to give no effect at all to order 12.2. 19 If the situation were that it was relatively clear that there are no members, but there are a whole host of people who are qualified to be members, or ought to be members, then the way would be open to the court in this suit, by consent, or at least in some other suit, either to exercise its powers under charitable trusts to prepare a scheme of management for the administration of the trust, the mechanics having broken down; or make one of the orders referred to in my earlier judgment; or make some order under s 7(2)(g) of the Charitable Trusts Act 1993. 20 However, if there are members, it seems to me, that the court should not do that. The reason why the court should not do that is that the members have rights and this court should not usurp their rights by making some order such as I have just contemplated. 21 Now I am told that both sides think that the great probabilities are that there are a few people who are members, and that they both agree are members. It may be that they will ask the Master to continue his enquiry and finally certify who are the members, or it may be they will be sufficiently satisfied if that group then proceed to elect a management committee in accordance with the 1950 Rules. 22 It probably will matter to the parties, but it should not really matter, as a matter of law, who is elected because I would have thought that those persons would have a fiduciary duty to deal with applications for membership in a fair, just and proper way, having regard to the aims of the Association, and if they do not then they will probably need to answer to the court. However, that is in the future. 23 Some time was spent this morning too in discussing cases such as Faramus v Film Artistes' Association [1964] AC 925, as to how one dealt with people who were ineligible for membership because, for instance, they may have been excommunicated. Again that seems to me to be a question that is down the track. If the Master's enquiry raises that question then it may be that the learned Master will have to take evidence and determine whether, in accordance with the principles of the Serbian Orthodox Church, those people were properly excommunicated. 24 I hope that does not happen because I naively hoped that when the principal question had been decided Christian peace and charity might break out between the parties and they might all once again unite around the Lord's table in their beloved church. However, if it is not to be, then the courts are here to decide the matter and the property and assets of the church can be further depleted by legal fees. 25 Accordingly, I merely pronounce these reasons. The parties can go back to the Master and have him deal with the matter according to law. 26 As to costs, really the matter should not have been here at all, but the parties appear to have reached a common understanding that it should be here, and what I have said today, hopefully, may assist the resolution of the dispute. So I order that the costs of the appearance before me this morning to be costs before the Master. ***********************

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