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Magistrates’ Court Complaint & Statement of Claims |
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On the 29th of December the following Complaint and Statement of Claim was lodged at the Sunshine Magistrates’ Court |
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Form 4ACOMPLAINT IN THE MAGISTRATES’ COURTOF VICTORIA AT SUNSHINE Case no. T03059517 Between:
Filipino Australian Friendship Association Geelong Incorporated Plaintiff -and-
Filipino Community Council of Victoria Incorporated Defendant _______________________________________________________________________________ Date of Document: 28th December 2005 Filed on behalf of the Plaintiff Prepared by: Fernandez & Johnson Solicitor’s Code: 1283 Solicitors Tel. No. 9899 1599 1st Floor, 17 Carrington Road Fax. No. 9899 1206 Box Hill 3128 Ref: H. Magistrado _______________________________________________________________________________
NATURE OF COMPLAINT: Application under Section 14A of the Associations Incorporation Act 1981.
AMOUNT OF CLAIM:
TO THE DEFENDANT TAKE NOTICE that this complaint has been brought against you by the plaintiff for the claim set out in the pages attached.
IF YOU INTEND TO DEFEND this complaint, YOU MUST GIVE NOTICE OF DEFENCE, within 21 days of service upon you of this complaint., to –
(a) the plaintiff whose address for service is: - c/o Fernandez & Johnson, 1st Floor, 17 Carrington Road, Box Hill 3128 and (b) the registrar of the Sunshine Magistrates’ Court of Victoria at 10 Foundry Road, Sunshine
IF YOU GIVE NOTICE OF DEFENCE, the Court will write to you and tell you of the hearing date.
IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the plaintiff may OBTAIN AN ORDER AGAINST YOU for the amount of the claim and costs without further notice.
IF YOU PAY the amount of $ and costs of $ to the plaintiff or the plaintiff’s solicitor without giving notice of defence you may avoid further costs.
DATE OF FILING:
THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF THE FILING.
PART B (ANY CLAIM NOT ARISING FROM A MOTOR VEHICLE COLLISION)
WHAT IS THE NATURE OF YOUR CLAIM? Application under Section 14A of the Associations Incorporation Act 1981.
WHERE DID YOUR CLAIM ARISE? FOOTSCRAY
WHEN DID YOUR CLAIM ARISE? SEPTEMBER 2005
PARTICULARS OF THE CLAIM:
Refer to the attached Statement of Claim.
HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING? NIL
WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING?
Refer to the attached Statement of Claim
Dated:
Fernandez & Johnson Plaintiff’s Solicitors
IN THE MAGISTRATES’ COURT OF VICTORIA AT SUNSHINE Case no.
Between:
Filipino Australian Friendship Association Geelong Incorporated
Plaintiff -and-
Filipino Community Council of Victoria Incorporated Defendant
STATEMENT OF CLAIM ___________________________________________________________________ Date of Document: 28th December 2005 Filed on behalf of the Plaintiff Prepared by: Fernandez & Johnson Solicitor’s Code: 1283 Solicitors Tel. No. 9899 1599 1st Floor, 17 Carrington Road Fax. No. 9899 1206 Box Hill 3128 Ref: H. Magistrado ____________________________________________________________________
1. The Defendant is and was at all material times an incorporated association under the laws of the State of Victoria and capable of suing and being sued. 2. The Plaintiff is and was at all material times an incorporated association under the laws of the State of Victoria and capable of suing and being sued. 3. The Plaintiff is an organisational member of the Defendant. 4. The Defendant has a Constitution and Rules (“the Constitution”) registered with Consumer Affairs Victoria as amended from time to time. 5. The Constitution, inter alia, provides for: i) the election of executive officers (“the Executive Committee”): Chairperson; Deputy Chairperson; Secretary; Assistant Secretary; Treasurer; Assistant Treasurer; Internal Auditor; Public Relations Officer and Assistant Public Relations Officer with a tenure of two years; ii) the keeping of a Register of organisational members (“the Register”), available for inspection by members at the address of the Secretary, citing the full name, current contact details, date of admission to membership and financial status; iii) qualifications for eligibility of organisations to apply for membership (“the members”); iv) procedure for applying for membership; v) procedure for renewal of lapsed membership.
6. The Constitution does not comply with the Associations Incorporation Act 1981 ("the Act"), in that it fails to provide: i) adequate grievance procedures; ii) adequate powers of inspections of relevant documents; iii) guidelines for proxy votes; iv) control and proper conduct of elections. PARTICULARS1. The Chairman of the Executive Committee tabled the Chairman’s report at the Filipino Community Councils of Australia Conference in October 2004 held at Rydges Hotel Melbourne, Victoria. This Report listed 33 organisational members in the Register of the Defendant. When subsequently contacted by the plaintiff a number denied ever having been members of the Defendant. 2. Despite repeated requests over a period of time from members and or candidates that the defendant allow inspection of the current Register as provided for in the rules of the Constitution, the Defendant refused and or failed to allow inspection of the Register at any proper time prior to the Annual General Meeting (“the AGM”) on 17 September 2005, and the rescheduled election of officers on 5 October 2005. 3. The Executive Committee in its meeting of 24 June 2005 resolved that for the purposes of the scheduled AGM of 17 September 2005, all forms should be submitted to the Secretary by 2 September 2005 deadline. 4. A Register of members compiled by the Secretary from official records as of 16 September 2005 and circulated to all members cited 32 organisational members. 5. On the day of the AGM, the Executive Committee produced 40 new membership applications which they alleged to have been duly accepted and receipted before the application deadline. The Executive Committee demanded that the new applications be added to the Register. However the Secretary and the delegates attending the AGM to vote on the nominees for the Executive Committee for the next two years challenged the validity and constitutionality of the new membership applications and their right to vote on the day. 6. As a consequence of the dispute about the new additional members to the existing Register, the election was adjourned to 15 October 2005. 7. An arranged mediation through the Department of Justice Dispute Settlement Centre of Victoria on 30 September 2005 was refused by the Executive Committee. 8. On 14 October 2005 the day prior to the election the Chairperson called a meeting between himself, factional representatives, the returning officer and unaligned representatives. The Chairperson purported to justify the inclusion of the 40 new members to the existing 32 members in the Register and their right to vote. The Chairperson again refused to release the official Register to the representatives present. 9. On 15 October 2005 the disputed matters of 17 September remained unresolved despite prior written requests to the Executive Committee requesting clarification of the disputed issues and further requests by members on the day. The Treasurer finally produced a Register of members just before voting was called. This Register purported that there was then 93 member organisations of the Defendant. When challenged by the membership the Chairperson refused to explain the inclusion of a further 21 new members to the Register overnight. 10. As a consequence dissatisfied members boycotted the election resulting in the Executive Committee being elected unopposed. A letter of protest was given to the Returning Officer that day. 11. No reasonable or responsible Executive Committee would have conducted the bi-annual election in such a manner contrary to the will of the members of the Defendant or the spirit and intent of the Constitution. 12. The Executive Committee have refused and or failed to conduct the bi-annual election in an impartial, fair and transparent manner. 13. The Executive Committee have refused and or failed to abide by the spirit and intent of the Purposes and Objectives contained in the rules of the Constitution of the Defendant. 14. Subsequent attempts by members to resolve the disputes concerning the election of the Executive Committee by calling a Special General Meeting as specified in the Constitution on 3 December 2005 have been ineffectual due to the failure of the Executive Committee to attend and respond to members concerns. 15. The election of the Executive Committee does not hold the confidence and support of the organisational members of the Defendant. And the Plaintiff claims: (a) A declaration that the election of the Executive Committee is void; (b) That the member organisations in their capacity as the Committee of Management as defined by the Constitution to convene a Special General Meeting to appoint a caretaker executive committee; (c) The caretaker committee as soon as practicable or in any event, within six months of the making of this order, convene a constitutional drafting party to: (i) make the constitution comply with the Act; (ii) outline further procedural rules to regulate fair, transparent and accountable elections; (iii) clarify membership applications procedures, rights in general and eligibility to vote. (d) That upon completion of the redrafting of the Constitution the caretaker executive committee review the Register of members to confirm their legitimacy and right to apply for and or maintain their membership and capacity to vote; (e) That upon completion of the redrafting of the Constitution to call an election for the various positions of the Executive Committee as then defined by the rules of the Constitution; (f) Costs against the Executive Committee; (g) Such other or further relief as the Court deems fit.
Dated: 28th December 2005
……………………………….. Fernandez & Johnson Solicitors for the Plaintiff |
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