Ehiozee v EDO Nigerian Association of New South Wales Incorporated [2012] NSWSC 239

Ehiozee v EDO Nigerian Association of New South Wales Incorporated [2012] NSWSC 239

Leave to amend was granted because the delay was explained by the discovery that the Association had not registered the 2002 constitutional amendments, illness of a legal representative, and delays not of the plaintiff's making; the amendments addressed the constitutional complication and properly pleaded the defamation case. The defendants did not establish want of prosecution or grounds to dismiss the claims against personal defendants because the Association's Constitution operated as a contract under the Act, the alleged breach of its dispute-resolution provisions was justiciable, and ss 26 and 28(4) did not give the personal defendants the immunity or validation contended for....

Jurisdiction
Australia
Judgment Date
16 March 2012
Procedural Posture
Procedural and Other Rulings in Proceedings Involving Alleged Breach of an Incorporated Association's Constitution and Defamation / Hearing of Three Notices of Motion: Defendants' Motions for Dismissal for Want of Prosecution and Dismissal Against Personal Defendants, and Plaintiff's Motion for Leave to Amend the Amended Statement of Claim
Outcome
Leave to amend granted; defendants' motions dismissed; costs orders and listing directions made.
Legal Topics
['leave to Amend Pleadings' 'dismissal for Want of Prosecution' 'strike Out or Dismissal Against Personal Defendants' 'justiciability of Incorporated Association Rules' 'internal Dispute Resolution Under Association Constitution' 'costs Thrown Away' 'proportionality of Litigation Costs']
['civil Procedure' 'associations Law' 'defamation' 'contract'] ['leave to Amend Pleadings' 'dismissal for Want of Prosecution' 'strike Out or Dismissal Against Personal Defendants' 'justiciability of Incorporated Association Rules' 'internal Dispute Resolution Under Association Constitution' 'costs Thrown Away' 'proportionality of Litigation Costs']

Case Brief

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Procedural Posture

Procedural and Other Rulings in Proceedings Involving Alleged Breach of an Incorporated Association's Constitution and Defamation / Hearing of Three Notices of Motion: Defendants' Motions for Dismissal for Want of Prosecution and Dismissal Against Personal Defendants, and Plaintiff's Motion for Leave to Amend the Amended Statement of Claim

Legal Issues

  1. 1 ["Whether the plaintiff should be granted leave to file a further amended statement of claim taking account of the unregistered 2002 amendments to the Association's Constitution and providing particulars of defamation claims." 'Whether the proceedings should be dismissed for want of prosecution because of delay.' 'Whether the amended statement of claim should be dismissed against the personal defendants.' "Whether the alleged breach of the Association's Constitution was justiciable despite the plaintiff never having been validly appointed patron." 'Whether ss 26 and 28(4) of the Associations Incorporation Act 2009 answered the claims against the personal defendants.' 'Whether the proceedings should be dismissed because any damages were potentially small and disproportionate to the costs of litigation.']

Ratio Decidendi

Leave to amend was granted because the delay was explained by the discovery that the Association had not registered the 2002 constitutional amendments, illness of a legal representative, and delays not of the plaintiff's making; the amendments addressed the constitutional complication and properly pleaded the defamation case. The defendants did not establish want of prosecution or grounds to dismiss the claims against personal defendants because the Association's Constitution operated as a contract under the Act, the alleged breach of its dispute-resolution provisions was justiciable, and ss 26 and 28(4) did not give the personal defendants the immunity or validation contended for....

Court Disposition

Leave to amend granted; defendants' motions dismissed; costs orders and listing directions made.

Orders

  • ['Leave to amend the amended statement of claim is granted.' "The plaintiff is to pay the defendants' costs thrown away as the result of the grant of that leave, as agreed or assessed." "The defendants' motions are dismissed." "The defendants are to pay Mr Ehiozee's costs, of those motions, as agreed or assessed."...