Kok v Bankstown District Association of Indoor Bowlers & Ors [2004] NSWSC 346

New South Wales Supreme Court

CITATION : Kok v Bankstown District Association of Indoor Bowlers & Ors [2004] NSWSC 346 HEARING DATE(S) : Wednesday 7 April 2004 JUDGMENT DATE : 7 April 2004 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : Summons Dismissed.

CATCHWORDS : SUMMONS - LITIGANT IN PERSON - "DEFUNCT" UNINCORPORATED ASSOCIATION - DECLARATORY REMEDIES SOUGHT - PROCEEDINGS MISCONCEIVED PARTIES : Bernard Cornelis Kok v Bankstown District Association of Indoor Bowlers & Ors FILE NUMBER(S) : SC 11661/03 COUNSEL : In person (Plaintiff) No appearance (Defendants) SOLICITORS : N/A

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 7 April 2004

11661/03 - BERNARD CORNELIS KOK v BANKSTOWN DISTRICT ASSOCIATION OF INDOOR BOWLERS & ORS

JUDGMENT

1 HIS HONOUR: There is before the court a summons filed by Bernard Cornelis Kok. He has appeared in person in support of the summons. The named defendants are the Bankstown District Association of Indoor Bowlers, Mr Peter Legge, Ms Denise Breeze, Mrs Patricia Legge, and Mr John Davey. None of those defendants has appeared. 2 In an affidavit filed in court today Mr Kok has scheduled a number of appearances before other judges of the court and before a Registrar in which he asserts that the defendants were ordered to file appearances and defences. 3 His assertion misunderstands the situation. No judge has power to order a party to enter an appearance. A party may or may not do so as that party may be advised. No doubt, commentary might be made that, if a defendant wishes to litigate a matter, the appropriate procedure would be to file an appearance and defence, but that is somewhat different from what the plaintiff asserts. 4 There is in the file a letter dated 1 November 2003 signed by the second to fifth defendants; that is to say, the personal defendants. Mr Kok has submitted that this is not an affidavit sworn before a Justice of the Peace and that I should discard it. 5 Having regard to the content of the letter, I do not think it should be discarded. What the letter states is that those parties have received advice suggesting that orders in the form sought by the plaintiff are either unable to be made by the court or not supported by the evidence. In those circumstances, they have elected not to incur the expense of appearance and defence of the proceedings. In summary, what the letter conveys is a conclusion that the plaintiff's case is unsustainable on its face, and that those parties are content to allow the matter to take its course. That is an option which is available to any defendant sought to be brought to court by a litigant. 6 The plaintiff concedes that the first named defendant, Bankstown District Association of Indoor Bowlers, is an unincorporated association. In fact, to quote him, he now says that that entity (if it can accurately be so described) is "defunct". Obviously, there are obstacles to making orders against such an insubstantial entity. 7 The first order sought in the summons is "an order that declares the Bankstown District Association of Indoor Bowlers to be an illegally formed Association". Whatever that may mean, there is no evidence before me which would justify the making of such a declaratory order. 8 Mr Kok has drawn attention to an annexure to his affidavit which sets out what was apparently the constitution and rules of a body known as the Bankstown District Association of Indoor Bowlers. Rule 12 provides for dissolution and says that any resolution for dissolution of the Association must be at a special meeting of the committee. "Special meeting" is not defined. 9 He also drew attention to a notification of a delegates meeting to be held on 29 January 1998. The agenda included the repealing of the current constitution and the acceptance of a proposed constitution. Mr Kok says this is not a "special meeting". 10 There is no basis upon which I can conclude that it did not fulfil whatever is required by Rule 12. It does appear that a new constitution may have been adopted at that meeting. Be that as it may, as I have said, there is no basis upon which I can make a declaration that this apparently now defunct entity is an illegally formed Association. 11 The second order sought seeks, in terms, an order to reinstate ownership, presumably of the entity just named, to the previous seven clubs, the names of which are scheduled and I need not presently repeat. 12 Membership of an Association - and I gather that membership of the Association was limited to clubs rather than individuals - does not involve ownership but rather association of the various members who congregate, in a sense, for the purpose of creating the Association. There is simply no basis upon which I should intervene to make an order in the terms sought. 13 The third order sought seeks a declaration that a suspension of the plaintiff by the named Association purported to be done on 29 January 1998 was illegal and unconstitutional. It may well be that the plaintiff was suspended from some activity which he apparently enjoyed or was interested in but he was hardly suspended from an Association, the membership of which was limited to clubs rather than natural persons. 14 In any event, as I have pointed out, that Association is, on the plaintiff's own contention, now defunct and there is no purpose to be served by my making a declaration of the type sought. 15 The fourth prayer in the summons seeks an order to suspend the management who managed, up to 1999, the Bankstown District of Indoor Bowlers Association and who are currently still managerially involved with the New South Wales Association of Indoor Bowlers Incorporated and/or Bankstown District Association of Indoor Bowlers indefinitely, and thereafter the paragraph of the summons sets out the names of the second to fifth defendants. 16 The evidence simply just not justify any such order. Mr Kok has said, and argued very vigorously, that the affairs of the Bowlers Association are in severe disarray. Even if that be so and the Association is in some shape or form still in existence, the remedy is not to be achieved by misconceived proceedings instituted in this Court. The evidence does not portray or establish any basis for an order of the kind sought. 17 The fifth prayer in the summons is no longer pressed. As was pointed out to Mr Kok, in any event it seeks an order against an incorporated body which is not a party to these proceedings. 18 In the outcome, the stance indicated by the second to fifth defendants in their letter of 1 November 2003 was correct; namely, that the orders in the form sought by the plaintiff cannot be made by the court and clearly are not supported by any of the evidence filed. 19 I should observe in passing that the plaintiff had on foot earlier proceedings involving what was described as the Illawarra District Indoor Bowls Association. A judgment in that proceeding was delivered by Dunford J on 30 September last. Whilst the issues before his Honour were different, it can be commented that the misconceptions to which I have referred appear to be of some similarity to those which led to the earlier litigation. This would tend to offer some verification of the observation in the letter by the second to fifth defendants: "Whilst Mr Kok may see it as appropriate to commence proceedings in court without legal advice as he has done on many occasions before…… " 20 As I have said, there is no basis upon which these proceedings can result in any of the orders being made by the court and the summons is dismissed. **********