Raja v Darul-Iman (WA) Incorporated [No 2]

[2011] WASCA 251

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Action commenced without authority of plaintiff
4. › Incorporated association
5. › Rival groups claiming control
6. › Whether action should be stayed or dismissed
7. › Rules of the Supreme Court 1971 (WA), O 12 r 6
1. Associations and Clubs
2. › Incorporated associations
3. › Authority to instruct solicitors
4. › Distinction between authority and capacity
5. › Whether s 15(1) Associations Incorporation Act 1987 (WA) applies to want of authority as opposed to want of capacity
1. Practice and Procedure
2. › Parties
3. › Necessary parties
4. › Whether non-party members must be joined
5. › Whether finding on authority affects interests of non-parties
1. Practice and Procedure
2. › Ratification
3. › Action commenced without authority
4. › Whether action void ab initio or capable of ratification

Quick Take

Section 15(1) of the Associations Incorporation Act 1987 (WA), which validates contracts entered into by an association lacking legal capacity, does not apply where the issue is want of authority of the persons purporting to instruct solicitors on behalf of the association. Where proceedings are commenced without the authority of the named plaintiff, the proper course is to stay the action. A finding of absence of authority is not, in itself, dispositive of an application for costs against the solicitors; the court retains a broad discretion to be exercised upon review of all relevant considerations including the degree of fault.