Ahmed v Chowdhury

THE CONSTITUTION OF THE PROCEEDINGS 15Introduction. The constitution of the current proceedings has required attention more than once. 16Each of the parties who appeared at the final hearing has accepted that all parties to the proceedings are, and were at all material times, members of the BIC. In particular, there is no dispute that the first plaintiff has standing, as a member of the association and as its displaced General Secretary, to maintain the proceedings. 17It was not until 25 August 2011 that the BIC was joined as a party in the proceedings. That was done by an order made by a judge in the course of dealing with one of the several interlocutory disputes that has absorbed the attention of the Court and the parties alike. Eight interlocutory judgments have been delivered: [2011] NSWSC 893 (10 August 2011), [2011] NSWSC 954 (25 August 2011), [2011] NSWSC 1597 (15 December 2011), [2012] NSWSC 348 (13 April 2012), [2012] NSWSC 411 (23 April 2012), [2012] NSWS 416 (27 April 2012), 15 June 2012 and 28 June 2012. 18Joinder of the BIC as a party did not result in it assuming an active role in the proceedings. Its joinder was, at least, a necessary formality: Metyor Inc v Queensland Electronic Switching Pty Limited [2003] 1 QR 186 at [10]-[13], following Spokes v The Grosvenor and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 at 128-129. It has not entered an appearance. 19The absence of any appearance can reasonably be assumed to have been a product of factional disputation between the first plaintiff and the first defendant as to their respective entitlements to represent the association. 20All parties who appeared at the final hearing agreed, and evidence before the Court confirms, that: (a) the membership of the BIC is, and was at all material times, much larger in numbers than those members named as parties in the amended summons; (b) the BIC's membership has varied over time, and it continues to do so; and (c) the first plaintiff and the first defendant are recognised in their community as the leaders of the two factions which have over previous years vied, and continue to vie, for control of the BIC. 21When the amended summons was called on for final hearing, the only appearance on the plaintiffs' side of the record was an appearance by, and on behalf of, the first plaintiff. There was no appearance by or on behalf of any of the second, third or fourth plaintiffs. 22The same position pertained when the hearing resumed after an adjournment. The only appearance on the plaintiffs' side of the record remained that of the first plaintiff. 23After the conclusion of the hearing (on 21 September and 17 October 2012), on notice to the active parties in the proceedings and without objection, the Court (on 13 November 2012) made orders to the following effect to regularise the constitution of the proceedings and, formally, to record that the object of the proceedings is to have all members of the BIC bound by the Court's determination as a means towards ending legal disputation within the BIC membership as to the Association's governance: (a) ORDER that the first plaintiff be appointed to represent in these proceedings himself and all members of [the BIC] who contend that his displacement from the office of General Secretary of [the BIC] on or about 24 April 2011 was not authorised by law. (b) ORDER that the first and third defendants jointly be appointed to represent in these proceedings themselves and all other members of [the BIC] not represented by the first plaintiff pursuant to [the first order]. (c) ORDER that the second, third and fourth plaintiffs be removed from the record of the proceedings as plaintiffs and that they respectively be joined in the proceedings, instead, as the sixth, seventh and eight defendants. 24These orders fall into two classes. The first two are "representative orders" designed to ensure that all members of the BIC are bound by the Court's determination. The third order is designed to ensure that the legal representatives of the first plaintiff (the only party now claiming relief in the proceedings) are not embarrassed by the presence, on the plaintiff's side of the record, of parties who might no longer be in the same interest as him. 25Representative Orders. The necessity for representative orders in these proceedings arose from five considerations. First, the fact that orders sought by the first plaintiff affect the whole membership of the BIC. He seeks, not only a declaration that his displacement as General Secretary was invalid, but also orders for the conduct of a fresh election for membership of the association's Executive Council. Secondly, the factionalism associated with the first plaintiff's displacement as General Secretary and the conduct of an election for the Executive Council on 17 June 2012 has been attended by the operation of two groups of people, each claiming to be the legitimate Executive Council of the BIC and characterising the other as a "shadow Executive Council". Thirdly, an object of determination of the proceedings is to bring resolution to this impasse, if not peace, to the whole membership of the BIC. Fourthly, it is important for that purpose to bind the whole membership to the Court's determination so that, subject to any appeal, this judgment will settle the BIC's constitutional crisis. Fifthly, the leadership roles assumed by the first plaintiff and the first defendant within their respective factions of the BIC community render their appointment as representative parties convenient for the fair determination of the controversial questions submitted to the Court for determination. 26In proceedings relating to the governance, and internal management, of a voluntary association, importance attaches to having before the Court, either in person or by representation, all who will be affected by the Court's determination: John v Rees [1990] Ch 345 at 371G. An absence of parties would not necessarily affect the jurisdiction of the Court to determine the proceedings (Australian Coal & Shale Employees' Federation (1937) 38 SR (NSW) 48 at 60-61), but it could lead to the institution of multiple, separate proceedings having a tendency to prolong disputation, not settle it down. 27The representative orders made in these proceedings were made upon an exercise of the equitable jurisdiction of the Court described by Megarry J in John v Rees [1970] Ch 345 at 369H- 374E (esp at 369H-370H, 371G-372A and 373H-374C) by reference to Lord Macnaughten's judgment in Duke of Bedford v Ellis [1901] AC1 at 8-11 and, ultimately, the judgments of Lord Elden in Adair v New River Co (1805) 11 Ves 429; 32 ER 1153 and, more especially, Cockburn v Thompson (1809) 16 Ves. Jun 321; 33 ER 1005. 28Sir Robert Megarry's judgment was cited with approval by the High Court of Australia in Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 at 417. It was also followed in proceedings for the determination of a dispute between members of an unincorporated association in Clark v University of Melbourne [1978] VR 457 at 475-477 where, on appeal, the representative character of the proceedings was not the subject of adverse comment: Clark v University of Melbourne (No 2) [1979] VR 66 at 67. 29The High Court has acknowledged the existence, and equitable origins, of the non-statutory jurisdiction of the Court to make representative orders for the determination of disputes between a multiplicity of parties: eg, Templeton v Leviatan Pty Limited (1921) 30 CLR 34 at 75-78; Carnie (1995) 182 CLR 398 at 403, 408, 415-424 and 427-429; Wong v Silkfield Pty Limited (1999) 199 CLR 255 at 261-263 [13]-[17]; and Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at 21-22 [6] and 29-30 [33]-[34]. 30Equity's flexibility in the joinder of parties was extended to proceedings in this Court generally upon enactment of legislation (including s 5 of the Law Reform (Law and Equity) Act 1972 (NSW)) that embraced the Judicature Act system of court administration adopted in England in 1875: Edge; Re Eco Panels Australasia Pty Limited (In Liq) [2007] FCA 30; 61 ACSR 139 at [6]-[13]. 31The existence of the Court's equitable jurisdiction to make representative orders has not been affected by the repeal in 2011 of rules 7.4 and 7.5 of the Uniform Civil Procedure Rules 2005 (NSW) - an adaptation of Part 8 rule 13 of the Supreme Court Rules 1970 (NSW) - corresponding to the rule of court (R.S.C. Order 15 rule 12) considered by Megarry J in John v Rees. 32Rules 7.4 and 7.5 (after amendment in 2007 as noted in Jameson v Professional Investment Services Pty Limited (2009) 72 NSWLR 281 at 283-284 [3]-[5]) were repealed at the same time as more elaborate provisions relating to "Representative Proceedings" based upon similar provisions applicable to the Federal Court of Australia and the Supreme Court of Victoria (namely, Part 10, comprising ss 155 - 184, of the Civil Procedure Act 2005 (NSW)), came into operation; Courts and Crimes Legislation Further Amendment Act 2010 (NSW), No 135, Schedules 6.1 and 6.4; Civil Procedure Act s 4(1A), Part 10, and Schedule 6 Part 5 (paragraph 18). There is nothing in the Attorney-General's Second Reading Speech in support of the amending legislation (Hansard, 24 November 2010), the law reform reports to which the Attorney referred or the Explanatory Notes published with the Bill that became the Amending Act, to suggest that the enactment of "a comprehensive representative proceedings regime" was intended to deprive the Court of its traditional equity jurisdiction. In any event, the present proceedings do not fall within the definition of "representative proceedings" as defined by s 157 of the Civil Procedure Act, and they have not been conducted as proceedings governed by the procedures for which Part 10 of that Act provides. Those procedures are very different from those available in equity: Burns Philp & Co Ltd v Bhagat [1992] 1 VR 203 at 223. They are not what is required for a final, fair determination of these proceedings. 33The Uniform Civil Procedure Rules still include, in rule 7.6, a provision based upon the Supreme Court Rules 1970, Part 8 rule 14. It provides for a representative order to be made in proceedings concerning the administration of a deceased estate, property the subject of a trust, or the construction of "an Act, instrument or other document". The heading to the rule suggests that the expression "an Act, instrument or other document" is intended to refer, at least primarily, to legislation. That is an impression not wholly dispelled by resort to the definition of "instrument" in the Interpretation Act 1987 (NSW), s 3. 34Even if the word "document" were to be given an expansive construction by reference to the "Dictionary" incorporated in the Rules by UCPR rule 1.2, the language of UCPR rule 7.6 does not naturally lend itself to these proceedings. Although, at the heart of the proceedings, are questions relating to the construction of a constitution governed by the Associations Incorporation Act 2009, the subject matter of the proceedings concerns the operation of the constitution, not merely its construction. 35An examination of the Civil Procedure Act and the Uniform Civil Procedure Rules drives one back to the Court's equitable jurisdiction. 36Section 22 of the Supreme Court Act 1970 (NSW) preserves the jurisdiction of the court derived, by Imperial legislation, from the English Court of Chancery. Section 5(1) of the Civil Procedure Act provides that nothing in that Act, or the Uniform Civil Procedure Rules, limits the jurisdiction of the court. 37These provisions are, in themselves, sufficient support for the representative orders made in these proceedings. If I am wrong about that then the orders may nevertheless be justified, by reference to s 16 of the Civil Procedure Act, as "directions with respect to [an] aspect of practice or procedure for which rules of court or practice notes do not provide". The due administration of justice and the dictates of justice, in the present proceedings, require an application of equity's approach to representative orders. 38The representative order procedure available in equity is readily adaptable to procedures for the determination of the collective rights and liabilities of members of an association as between themselves: SJ Stoljar, "The Representative Action : An Equitable Post-Mortem" (1956) 3 University of W.A. Annual Law Review 479 at 483, 485, 486 and 499-500; HAJ Ford, Unincorporated Non-Profit Associations: Their Property and Their Liability (Oxford, 1959), pp 94-96; KL Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (Law Book Co, Sydney, 1986), pp 190-192. That is illustrated by both John v Rees and Clark v University of Melbourne. 39On any analysis of case law, it is necessary to bear in mind that the non-statutory "rules" relating to representative orders to be applied upon an exercise of equitable jurisdiction are rules of convenience adapted to particular facts for the due administration of justice: John v Rees [1970] Ch 345 at 370 EF; Campbells Cash & Carry Pty Limited v Fostiv Pty Limited (2006) 229 CLR 386 at 418 [44]. 40Different types of proceedings have been treated differently, according to the requirements of the particular case. This was recognised by Young J in Carnie v Esanda Finance Corporation Limited (1996) 38 NSWLR 465 at 470B-472G on the return of those proceedings to this Court after publication of the High Court judgment reported at (1995) 182 CLR 398. Of the three types of case identified by his Honour, the present proceedings are closest to the third: a shareholder's action, with representative orders designed to avoid a multiplicity of suits. 41The following passage in Professor Ford's book, at pp 94-95, provides a general description of the nature of equity's jurisdiction: "In equity there developed a procedure which has proved to be significant in litigation concerning associations. In the Court of Chancery there was a general approach more favourable to the growth of rules as to joinder of parties which would be less strict than those operating at common law. The Court of Chancery was for the most part a court of administration: unlike a common law court, which provided a forum for what was regarded as essentially a contest between persons, the Court of Chancery was more often concerned to do complete justice concerning a particular subject-matter. Whereas the normal common law action involved a relatively small number of persons, the higher-minded Chancellors delighted 'to do complete justice, and not by halves', were often faced with situations in which large numbers of persons had claims to property under the Court's administration. Chancery ordinarily required that all such persons should be before the Court as parties to the bill [ie, the Court's originating process] so that the disposition of the property could with justice be finally passed upon. But it was recognised that the general requirement about joinder could be dispensed with in a number of cases where it was impracticable to comply with it. ... In these cases the Court of Chancery would not insist on all the persons interested being made parties but would proceed to a decree without them, if it could be done without injury to the persons not actually before the Court. Full joinder was dispensed with when the Court was satisfied that the interested persons who had not been joined were virtually represented by persons who were joined. To constitute this representation it was necessary that there should be homogeneity of right between members of the class represented and the parties who claimed to represent them. [Emphasis added, but citation of authority omitted]". 42This is consistent with the following explanation found in Daniell's Chancery Practice (Stevens and Sons, London, 8th ed, 1914) at page 147 (omitting footnote references): "It was the aim of the Court of Chancery to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the Court perfectly safe to those who were compelled to obey it, and to prevent future litigation. For this purpose, it was necessary that all persons materially interested in the subject should generally be made parties to the suit, either as plaintiffs or defendants. The strict application of this rule in many cases created difficulties, which induced t he Court of Chancery to relax it; and it became the established practice of that Court to allow a plaintiff to sue on behalf of himself and of all the others of a numerous class of which he was one, and to make one of a numerous class (as the members of a joint-stock company) the only defendant as representing the others, on the allegations that they were too numerous to be all made parties." 43As explained in Ashburner's Principles of Equity (2nd ed, by Denis Browne, Butterworth & Co, 1933) at p 43: "The desire of courts of equity to avoid a multiplication of suits led inevitably to a multiplication of parties. ... The difficulties which arose in equity from the necessity of bringing before the court all persons who had an interest in the matter in dispute were diminished by the introduction of representative suits. At common law, a plaintiff before the Judicature Act could not sue or be sued in a representative capacity unless he were already a legal representative of another, eg an executor or the public officer of a bank. In equity, where there was a common interest and a common grievance, a representative suit was allowed from an early time if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. The rule was not confined to persons who had a beneficial proprietary interest. ... On the same principle, where the defendants were numerous, two or three of a class might always be made defendants to represent the interests of that class. [Emphasis added, but citation of authority omitted]". 44The equitable jurisdiction to make representative orders is thus governed by "considerations of justice and convenience", and the management of proceedings by the Court "to ensure fairness" in the conduct of litigation: Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at 21-22 [6]. 45The standard of fairness required for the conduct of a representative action (in the context of the Supreme Court Rules 1970, Part 8 rule 14) was considered in Arakella Pty Limited v Paton (as Representative of the Unitholders of GNS Training Trust) (2004) 60 NSWLR 334 at 346-349 [51]-[65]. There Austin J, building upon an observation of Young J in Carnie at 38 NSWLR 472, emphasised the need for a representative party to act honestly and fairly, with independence of mind, to represent what he or she considers to be the interests of the represented group. That does not amount to a licence to make purely subjective judgements. A representative party does not necessarily have to consult represented parties, or to act at the direction of such parties, However, a representative party does need to bear in mind the importance attached by the court to ensuring, first, that the interests of parties in fact absent from the court room are fairly addressed and, secondly, that the court receives assistance from the representative party to ensure that all questions in dispute are fairly identified and fairly addressed. 46Given the presence of a contradictor at a hearing of proceedings in which a representative order has been made, the standard of fairness required of a representative party might not rise as high as that required of a party who seeks ex parte relief (as to which, see Thomas A Edison Limited v Bullock (1912) 15 CLR 679 and Garrard v Email Furniture Pty Limited (1993) 32 NSWLR 662) but a failure by a representative party to bring a material fact to the attention of the Court may undermine the efficacy of any judgment entered in the proceedings. 47A final judgment given in proceedings the subject of a representative order ordinarily binds all members of the class of persons purportedly represented by the representative party: KR Handley, Spencer Bower and Handley: Res Judicata (Lexis Nexis, London, 4th ed, 2009), para [9.20]; Carnie (1995) 182 CLR 398 at 423-424. However, a person purportedly represented pursuant to a representative order may be entitled to apply for joinder in the proceedings as a defendant (in aid of an application to set aside the judgment or to appeal) for the purpose of contending that the judgment does not apply to him or her because he or she does not fall within the class of represented parties; because of some special circumstance personal to him or her; or because it was obtained irregularly, illegally or against good faith: Commissioners of Sewers of the City of London v Gellatly (1876) 3 Ch D 610 at 616; UCPR rule 36.15(1). Cf, Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539. 48The conditions for the making of representative orders are found in these proceedings. The evidence before the Court is that the membership of the BIC is largely divided into two factions. One faction generally supports the first plaintiff. The other generally supports the first defendant. The factional divide has been defined, since at least 24 April 2011, by different views as to whether or not the first plaintiff was properly displaced from the office of General Secretary of the BIC on or about that date. That question can be dealt with fairly upon the contentions advanced by the first plaintiff, on the one hand, and the first and third defendants on the other. 49Their active participation in the proceedings, and the non-participation of other members of the BIC (including members personally joined as parties) in the proceedings, established their qualifications for the representative roles now formally conferred upon them by orders of the Court. 50The jurisdiction to make a representative order does not depend upon the consent, or even the knowledge, of persons who are to be represented by a party appointed to represent them: Carnie (1995) 182 CLR 398 at 429; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 at 222-223. 51It is not necessary, for present purposes, to go beyond the Court's equitable jurisdiction to make representative orders as a convenient procedure for the fair determination of disputes between members of the BIC as to the status of the first plaintiff as General Secretary and associated questions as to the authority of members of the association who currently hold themselves out as constituting its Executive Council. For completeness, however, I notice that the jurisdiction in equity to make representative orders bears some similarity to the jurisdiction formerly arising on a Bill of Peace: Story, Commentaries on Equity Jurisprudence (1st English ed, 1884), ch 22 (paras 852-860, on pp 567-570); Halsburys Laws of England (1st ed, 1910) vol 13, para 68. Cf, Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 262 [15]. An object, under each head of jurisdiction, is to quell disputes and avoid a multiplicity of proceedings. 52Removal and Rejoinder of Parties. As foreshadowed during the course of the hearing, the intendment of the order made for redesignation of all but the first plaintiff as defendants is both to recognise that the first plaintiff is now the only party claiming relief in the proceedings, and to ensure that the conduct of the proceedings on behalf of the first plaintiff is not constrained by the presence on the same side of the record of co-plaintiffs who may, by their presence, impede conduct of the proceedings or embarrass the first plaintiff in his conduct of them: Goold & Porter Pty Ltd v Housing Commission [1974] VR 102 at 104; Uniform Civil Procedure Rules 2005 (NSW), rr 6.20 and 6.25. 53The remaining plaintiffs, now newly joined defendants, may have abandoned the proceedings, but it is not necessary for me to reach that conclusion. There is no evidence, one way or the other, as to whether they maintain their support for the first plaintiff. I infer that their stance is not unlike that of a defendant who enters a submitting appearance. 54The position on the plaintiffs' side of the record has its corollary on the defendants' side. The only active parties on the defendants' side are the first and third defendants, represented by the same counsel. Each of the second and fourth defendants appeared before the Court, in person, to announce his submission to orders of the Court, save as to costs. 55The form of Representative Orders. The inactive roles assumed in the proceedings by all parties other than the first plaintiff, the first defendant and the third defendant justify the generality of the terms of the representative orders made by the Court. There is no need to carve out of those orders separate roles for the parties who have chosen to assume an inactive role. The representative orders can operate fairly without any expression of exceptions. 56Ordinarily, the class of persons represented by a representative party should be defined, in the order appointing that party as a representative, by reference to "the effect of proceedings on the rights of a person and not ... the person's wish or lack of wish to assert rights": Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at 580 [63], citing Shepherd v Australia & New Zealand Banking Group Limited (1996) 20 ACSR 81 at 96 (lines 33-34). 57The orders made in these proceedings do not conform to that counsel of perfection. Nevertheless, the classes of represented parties are, collectively, defined by the totality of the membership of the BIC. The orders made in the proceedings recognise that there is a division of opinion within the membership of the association that turns upon different contentions about whether or not the first plaintiff was validly displaced from the office of General Secretary. That is, I apprehend, a touchstone for factional allegiance, although not all members who share the first plaintiff's opinion as to the validity of his displacement need regard themselves as within his, or any other, faction. 58A more conventional form of representative orders might have been one in which one of the first plaintiff or the first defendant was appointed to represent all members of the BIC other than his opponent. Procedurally, that would have achieved what can be achieved by the orders actually made. However, it would have been liable to be misunderstood by members of the association. Neither of the first plaintiff nor the first defendant stands alone. 59As in John v Rees [1970] Ch 345 at 373H, there is in these proceedings "a simple division of opinion between numerous members of a single body". In these proceedings, as distinct from those with which Megarry J dealt, a definition of the class of members represented by the first plaintiff, in particular, by reference to their support for him in relation to the core question before the Court does no injustice to any member of the BIC. It serves, rather than impedes, a fair presentation of competing arguments referable to that question or, just as importantly, the associated questions in dispute that follow on from its determination. The representative defendants (particularly the first defendant) are the first plaintiff's contradictors, not only in the conduct of these proceedings, but also in the conduct of the affairs of the BIC itself.

THE STANDING OF THE FIRST PLAINTIFF AND THE AVAILABILITY OF CURIAL RELIEF 60From a number of different perspectives, at law and in equity, courts in the Anglo-Australian tradition have exhibited a reluctance to entertain litigation about the governance, or internal management, of a voluntary association unless there is necessity for adjudication of a dispute of a "civil right of a proprietary nature" or resolution of the dispute is governed by legislation. 61The predisposition of courts against entertaining such litigation is sometimes addressed by calling into question the "standing" of a claimant for curial relief, at other times the "justiciability" of the claim. 62The concept of locus standii (Latin for "a place of standing") is directed to the right, or otherwise, of a claimant for curial relief to be heard on the question whether such relief can, or should, be granted. This question focuses on the existence or otherwise in the claimant of a private right of action or a personal interest sufficiently affected by a public right underlying the claim: eg, Australian Conversation Foundation Incorporated v Commonwealth (1980) 146 CLR 493 at 526 and 547. 63The concept of "justiciability" is directed to whether a claim for relief is capable of, or suitable for, determination by a Court. Typically, a claim that calls for the determination of a purely political or theological question, rather than a legal question, may be characterised as not justiciable. 64The two concepts of "standing" and "justiciability" may overlap. A claim may lack justiciability if a claimant lacks standing to make it. Discussion of one concept tends to coalesce with discussion of the other, and the two are not always easily distinguished. 65Debates about standing and justiciability may turn upon controversies debated at a lower level of abstraction. Not uncommonly, it might be said, there is a question about whether members of an association have intended the association's "constitution" (by whatever name known) to create or affect legal relations. Further or alternatively, there might be debate about whether questions in dispute can truly be characterised as "legal" or whether they are essentially "political" or "theological" in nature. Still further, or alternatively, debate might focus upon the existence or otherwise of a disputed "right" or, more particularly, a right bearing the character of "property" or something akin to it. 66Three examples of the interplay of these debates may be found in Cameron v Hogan (1934) 51 CLR 358 at 370-373 (relating to a political organisation) and Scandrett v Dowling (1992) 27 NSWLR 483 and Sturt v Farran [2012] NSWSC 400 (relating to a religious one). 67Ultimately, a court must make a judgement about the existence or otherwise of a question ripe for determination, according to legal criteria and via legal processes, bearing in mind the importance of allowing members of a community to govern their own affairs in an orderly and peaceful manner without a multiplicity of proceedings. 68It may be that, foundational to such cases, is a general concern not to interfere with autonomous decision making, or the will of a majority of the members of a community, in the orderly conduct of the community's affairs: SJ Stoljar, Groups and Entities : An Inquiry into Corporate Theory (ANU, Canberra, 1973), pp 41-44. 69Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 is not uncommonly cited in this context. Reference is often made to "the rule in Foss v Harbottle". 70The rule in Foss v Harbottle has two branches. The first ("the proper plaintiff principle") mandates that, subject to particular exceptions, only the company is the proper plaintiff to complain of infringement of a right of the company. The second ("the internal management principle") mandates that a member of a company cannot ordinarily bring an action to complain of an irregularity in the operation of the company if that irregularity can be rectified by an ordinary resolution of members of the company in general meeting: Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 at 207; RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (Lexis Nexis Butterworths, Australia, 2005) paragraphs [7.25] and [19.7]-[19.16]. 71There is a degree of artificiality about analysis of Foss v Harbottle as comprising two branches. Where, in contravention of a company's constitution, a member of the company's board of directors is excluded from participation in the board's management of the affairs of the company, both the excluded member and the company may have an entitlement to redress: Australian Coal and Shale Employees' Federation v Smith (1937) 38 SR (NSW) 48 at 54-61. 72As recognised by Gummow J in Scarel Pty Limited v City Loan & Credit Corporation Pty Limited (1988) 17 FCR 344 at 348, Foss v Harbottle actually involves several strands of thought: "There is the principle that the courts will not interfere in the internal disputes of partnerships, joint stock companies or the modern corporation, the precept that the courts seek to avoid a multiplicity of actions, the principle that equity will not act in vain and that it would do so if the court were to rule on a matter that was within the competence of a majority of the shareholders and finally the principle that for a wrong done to a company, the company is the proper plaintiff in an action to seek redress...". 73However parsed, the "strands of thought" intertwined in Foss v Harbottle are capable of application to an association registered under the Associations Incorporation Act. They are principles reflective of a need to be mindful of the different rights and obligations of members of an association of people: individually and in their capacity as members, as members inter se and vis á vis the group entity, and vis á vis outsiders to the group. 74Analysed in terms of "two branches", both branches of Foss v Harbottle find reflection in the present proceedings. The BIC itself has a right not to have an unauthorised "shadow" organisation falsely pass itself off as "the BIC". Ultimately, and subject to the association's constitution, the will of the majority must prevail in the due administration of the BIC's affairs. 75In these circumstances, it is appropriate that the BIC be a party to the proceedings in its own right, It is equally appropriate that the Court entertain the first plaintiff's complaint that he has been displaced from his office as General Secretary by a majority of members of the Executive Council, and a general meeting, of the BIC. His complaint is that they acted in an irregular manner that presents with the appearance of an attempt to circumvent constraints imposed on the Council, and the membership of the association, by the BIC's constitution, and appears to bear the hallmarks of oppression. 76To the extent that it may be necessary for the first plaintiff to bring himself within an exception to the first branch of Foss v Harbottle, I accept that he has done so. If he was irregularly displaced from the office of General Secretary by the Executive Council, the attempt by the first defendant and his faction to have a general meeting ratify the decision of the Council was constrained, in the particular circumstances of this case, by procedural fairness mechanisms in the BIC's constitution not complied with. To the extent that the second branch of Foss v Harbottle might stand in the first plaintiff's way, complaints about the conduct of meetings of the Executive Council and the general membership of the association, coupled with controversy about the election of a new Council, warrant consideration of the Court. Provided that the BIC is itself a party to the proceedings and representative orders are made to ensure that all persons affected by the Court's determination are before the court, either in person or by representation, Foss v Harbottle presents no impediment to conduct of the proceedings. The first plaintiff is entitled to have his complaint heard. 77Nevertheless, the observations of Mellish LJ in Macdougall v Gardiner (1875) 1 Ch D 13 at 25-26 offer, from a particular perspective, an explanation of why the law is slow to interfere with the internal management of a voluntary association and limits on the Court's policy of non-interference. They have resonance in a case in which allegations of procedural irregularity are made about the internal management of a factionalised voluntary association. Mellish LJ was dealing with a case in which a shareholder of a company commenced proceedings, purportedly on behalf of himself and all other shareholders except the directors of the company, against the directors and the company, objecting to adjournment of a general meeting of the company by the chairman of directors without permitting further discussion of a controversial proposal that the directors proposed to implement: "I think it is a matter of considerable importance rightly to determine this question, whether a suit ought to be brought in the name of the company or in the name of the shareholders on behalf of the others. It is not at all a technical question, but it may make a very serious difference in the management of the affairs of the company. The difference is this: - Looking to the nature of these companies, looking at the way in which their articles are formed, and that they are not all lawyers who attend these meetings, nothing can be more likely than that there should be something more or less irregular done at them - some directors may have been irregularly appointed, some directors as irregularly turned out, or something or other may have been done which ought not to have been done according to the proper construction of the articles. Now, if that gives a right to every member of a company to file a bill to have the question decided, then if there happens to be one cantankerous member, or one member who loves litigation, everything of this kind will be litigated; whereas, if the bill must be filed in the name of the company, then, unless there is a majority who really wish for litigation, the litigation will not go on. Therefore, holding that such suits must be brought in the name of the company does certainly greatly tend to stop litigation. In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes. Is it not better that the rule should be adhered to that if a thing which the majority are the masters of, the majority in substance shall be entitled to have their will followed? If it is a matter of that nature, it only comes to this, that the majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly; and that, as I understand it, is what has been decided by the cases of Mozley v Alston 1Ph 790, and Foss v Harbottle, 2 Hare 461. In my opinion that is the rule that is to be maintained. Of course if the majority are abusing their powers, and are depriving the minority of their rights, that is an entirely different thing, and there the minority are entitled to come before this Court to maintain their rights; but if what is complained of is simply that something which the majority are entitled to do has been done or undone irregularly, then I think it is quite right that nobody should have a right to set that aside, or to institute a suit in Chancery about it, except the company itself." 78The Associations Incorporation Act addresses at least some of the problems that arise in the context of a voluntary association, first, by providing in s 26(1) that, subject to the Act, a registered association's constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions; and, secondly, by providing for the application to associations of a modified form of s 1322 of the Corporations Act 2001 (Cth) to validate irregularities in conduct of the affairs of a registered association. 79Subject to any obstacle presented by Foss v Harbottle in the particular case (as noted in Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 at 435-437), the statutory contract between members of the BIC, and the first plaintiff's exclusion from the conduct of the affairs of the association, are sufficient, in themselves, to ground a finding that, in his personal capacity, he has the requisite standing to challenge his displacement from office: Bennett v Murray (1940) 64 CLR 382 at 390, 399, 405 and 406; McClelland v. Burning Palms Surf Life Saving Club [2002] NSWSC 470; 191 ALR 759 at [109]; Rose v Boxing NSW Inc [2007] NSWSC 20 at [54]-[57]; Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Incorporated (2008) 72 NSWLR 224 at 225 [3] and 231-232 [32]-[38]; Luen Fook Tong Incorporated v Lowe [2011] NSWSC 1004 at [32]. 80Larger questions are whether the first plaintiff has standing to litigate his claim for an order challenging the composition of the Executive Council generally and whether, in that context, his claims for relief generally are justiciable. In the circumstances of this case, those questions coalesce. 81I find that the first plaintiff does have standing to bring these proceedings and that, his claims for relief are justiciable, not merely because he is a member of the BIC who has ostensibly been displaced as its General Secretary, but because the parties' disputes about governance of the BIC, more generally, can be characterised as disputes relating to "civil rights of a proprietary nature", unattended by any need to determine non-legal questions, and it is in the interests of the BIC that disputes in its membership about the identity of its General Secretary and Executive Council be determined. Unless these questions are determined, the capacity of the association to function may continue to be impeded, to the point of paralysis, with competing claims to office within the association and competing claims, in dealings with outsiders, to represent the association. 82In short, the proceedings raise questions ripe for determination, according to legal criteria and via legal processes, with a prospect that, by a determination of those questions, members of the BIC may be aided in governance of their own affairs in an orderly and peaceful manner without ongoing resort to a multiplicity of proceedings. Under the constitution of the BIC, the office of General Secretary is one of central importance to the conduct of the affairs of the association. As a member of the BIC, and having been displaced from that office, the first plaintiff has standing to claim the relief he seeks in the proceedings, subject only to ensuring (as has been provided for by representative orders) that the interests of all members of the association are duly consulted.

THE AMBIT OF THE FINAL HEARING 83The parties appear, in large measure, to have been exhausted by the course of the litigation. 84The only evidence given at the final hearing of the amended summons was given by the first plaintiff and the first defendant. Their respective affidavits were read, and they were cross examined. The Court is indebted to their respective legal representatives for assistance provided in the conduct of what might have been a difficult process, and for their endeavours to limit the questions in dispute. 85By the time of conclusion of the final hearing, the active parties were, in substance, agreed upon several points. First, any continuing problems in the governance of the BIC arise from, or constitute, an "irregularity" within the meaning of s 1322 of the Corporations Act, rendered applicable to the BIC, principally, by ss 96 and 97 of the Associations Incorporation Act 2009 (NSW) and clause 16 of the Associations Incorporation Regulation 2010 (NSW). Secondly, any such irregularity can be taken to have been, or to be able to be, validated by the operation of s 1322 so far as applicable and any ancillary orders of the Court may consider appropriate. Thirdly, the course of events since the first plaintiff's displacement as General Secretary, including the conduct of a controversial annual general meeting of the members of the BIC on 17 June 2012, renders impractical any prospect that the membership of the association's governing committee (the Executive Council) might be restored to what it was before the process of the first plaintiff's displacement as General Secretary began on or about 24 April 2011. 86The first plaintiff invites the Court to find that his purported removal from the office of General Secretary in 2011 was an irregularity that should be dealt with by orders, under s 1322, for the conduct of a fresh election of the Executive Council. The first and third defendants' primary contention is that the first plaintiff was removed from office in accordance with the Constitution of the BIC so that there is no occasion for any orders to be made under s 1322. Their alternative contention is that, if orders are to be made under that section, they should be limited to validating the outcome of the election for the Executive Council conducted at the AGM on 17 June 2012. 87The extent to which s 1322 is applicable to an association registered under the Associations Incorporation Act 2009 (NSW) is governed by s 5F of the Corporations Act 2001 (Cth); Part 3 of the Corporations (Ancillary Provisions) Act 2001 (NSW); ss 95, 96 and 97 of the Associations Incorporation Act 2009; and clause 16 of the Associations Incorporation Regulation 2010 (NSW). 88Section 5F of the Corporations Act provides that the Commonwealth's Corporations legislation does not apply to matters declared by a State law to be an excluded matter. 89Section 95 of the Associations Incorporation Act provides that, subject to exceptions specified in s 95, an association registered under the Associations Incorporation Act is declared to be an excluded matter for the purposes of s 5F of the Corporations Act in relation to the whole of the Corporations legislation. 90Part 3 of the Corporations (Ancillary Provisions) Act provides, inter alia, for the application of provisions of the Corporations Act as laws of New South Wales in respect of any matter declared by a law of New South Wales (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. 91Section 96 of the Associations Incorporation Act provides that regulations made under the Act may declare any matter relating to associations to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act in relation to any excluded Corporations legislation provision or provisions (with such modifications as may be specified in the declaration). 92Section 97 of the Associations Incorporation Act provides that, if a provision of that Act declares a matter to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act in relation to any provisions of the Corporations legislation, the declaratory provision is taken to specify a number of modifications. Those modifications include, for example, provision for a reference in the Commonwealth legislation to "the constitution of a company" to be read as a reference to "the constitution of an association". Section 97 also provides that any of the Commonwealth provisions that are not relevant to associations or which are incapable of application to associations are to be ignored. 93Clause 16 of the Associations Incorporation Regulation provides that, for the purposes of s 96(1) of the Associations Incorporation Act, any matter relating to associations is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act in relation to s 1322(1)-(3A) and (4)-(6) of the Corporations Act, subject to specified modifications. Those modifications include, for example, provision for references to a "corporation" to be read as references to an "association". 94So far as s 1322 applies to the BIC by virtue of the Associations Incorporation Act, it is in the following terms: "Irregularities (1) In this section, unless the contrary intention appears: (a) a reference to a proceeding under this Act [including the Associations Incorporation Act 2009 (NSW)]is a reference to any proceeding whether a legal proceeding or not; and (b) a reference to a procedural irregularity includes a reference to: (i) the absence of a quorum at a meeting of [an association], at a meeting of directors or creditors of a [an association], at a joint meeting of creditors and members of a [an association] or at a meeting of members of a registered scheme; and (ii) a defect, irregularity or deficiency of notice or time. (2) A proceeding under this Act [including the Associations Incorporation Act] is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid. (3) A meeting [including a vote conducted by postal ballot] held for the purposes of this Act [including the Associations Incorporation Act] , or a meeting notice of which is required to be given in accordance with the provisions of this Act [including the Associations Incorporation Act] or any proceeding at such a meeting, is not invalidated only because of the accidental omission to give notice of the meeting or the non-receipt by any person of notice of the meeting, unless the Court, on the application of the person concerned [or] a person entitled to attend the meeting [including a person entitled to vote in a postal ballot] ... declares proceedings at the meeting to be void. (3AA) A meeting held for the purposes of this Act [including the Associations Incorporation Act], or a meeting notice of which is required to be given in accordance with the provisions of this Act [including the Associations Incorporation Act], or any proceeding at such a meeting, is not invalidated only because of the inability of a person to access the notice of meeting, unless the Court, on the application of the person concerned [or] a person entitled to attend the meeting ..., declares proceedings at the meeting to be void. (3A) If a member does not have a reasonable opportunity to participate in a meeting of members, or part of a meeting of members, held at 2 or more venues, the meeting will only be invalid on that ground if: (a) the Court is of the opinion that: (i) a substantial injustice has been caused or may be caused; and (ii) the injustice cannot be remedied by any order of the Court; and (b) the Court declares the meeting or proceeding (or that part of it) invalid. (3B) ... (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act [including the Associations Incorporation Act], the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act [including the Associations Incorporation Act] or in relation to [an association] is not invalid by reason of any contravention of a provision of this Act [including the Associations Incorporation Act] or a provision of the constitution of [an association]; (b) an order directing the rectification of any register kept ... under [the Associations Incorporation Act]; (c) an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a); (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act [including the Associations Incorporation Act] or in relation to [an association] (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding; and may make such consequential or ancillary orders as the Court thinks fit. (5) An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph (4)(a): (i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and (b) in the case of an order referred to in paragraph (4)(c)--that the person subject to the civil liability concerned acted honestly; and (c) in every case--that no substantial injustice has been or is likely to be caused to any person."

THE CHARITABLE TRUSTS ACT 1993 (NSW) 95In determining these proceedings, I proceed on the basis that they do not bear the character of "charitable trust proceedings" within the meaning of s 5 of the Charitable Trusts Act 1993 (NSW). 96If I am wrong about that, the proceedings would have to be regarded as incompetent for want of authorisation of them by the Attorney General for New South Wales, or a grant, by the Court, of leave to bring them. Section 6(1) of the Act provides that charitable trust proceedings are not to be commenced in the Court without the Attorney's authority or the Court's leave. 97The possibility that the proceedings could be characterised as charitable trust proceedings emerges from the nature of the objects of the BIC and the activities it undertakes: Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583-584; F.R. Jordon, Equity in NSW (6th ed, 1947), p 38; Federal Commissioner of Taxation v Bargwanna (2012) 244 CLR 655 at 661; G Dal Pont, Charity Law in Australia and New Zealand (Oxford UP, Melbourne, 2000), ch 4-7. It owns and operates the Sefton Mosque at which members of the Bangladeshi community worship. I infer from the evidence given by the first plaintiff and the first defendant, directed to a resolution of their dispute, that the activities of the BIC faithfully reflect its constitutional mandate: Cf, Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204 at 217 and 224. 98Clauses 1, 2 and 3 of the BIC's constitution are in the following terms: "NAME 1. The name of the organisation shall be "Bangladesh Islamic Centre of New South Wales Incorporated" (the "Centre") PREAMBLE 2. This Constitution is inspired by the Holy Qur'an, Sunnah, Ijmah and Qias. In the words of the Holy Qur'an: 'They believe in Allah and the Last Day and enjoin right conduct and forbid indecency, and vie with another in good works. They are of the righteous' (Surah Aal Imran, 3:114). OBJECTIVES and ACTIONS 3. The objectives of the Centre are: (a) To promote and share the unique cultural heritage of Bangladeshi Muslims with other Australian Muslims, and Muslims overseas; (b) To keep in close contact with all other Islamic organisations in Australia and overseas; (c) To promote and maintain unity and friendship among Muslims and between Muslims and other communities in Australia; (d) To maintain and enhance the Centre at its current location in Sydney; The Centre has underlined following activities in achieving the objectives: (i) To organise the teachings of the Holy Qur'an and principles of Islam to the members and children of members and others who are interested in them. (ii) To facilitate and perform civil ceremonies including weddings according to Islamic law and customs. (iii) To organise celebration of Islamic festivals and events in cooperation with other Muslim organisations; (iv) To maintain a system of registration of marriage, divorce, birth and death and to issue necessary certificates as required by the principles of Islam and permitted by the law of New South Wales; (v) To organise and conduct Muslim burials and to participate in the maintenance of cemeteries for Muslims in cooperation with the relevant trust organisations; (vi) To establish and manage a library of Islamic literature; (vii) To manage, print and publish newspapers, journals, periodicals, books, booklets, tracts and/or leaflets which the Centre may consider desirable to extend its aims and objectives; (viii) To promote, organise and encourage healthy indoor and outdoor games and sports; (ix) To act as arbitrators when asked to do so in settling disputes between Muslims and other communities in Australia, (x) To act as executors of wills of members and to take care of the property and personal effects of deceased members of the Centre and other Muslims; (xi) To act as the representative body for Bangladeshi Muslims in Australia before the various Islamic and Government organisations; (xii) To collect, manage and distribute zakat, fitra and similar charity funds for poor and needy people according to the Islamic Practices." 99These objects have the flavour of a charity about them. The possibility that at least some of the property held by the BIC, including the Sefton Mosque, is held on charitable trusts, defined by reference to the BIC's constitution, cannot be excluded. For illustrations of such a situation, see NSW Masonic Youth Property Trust v Attorney-General (NSW) [2009] NSWSC 1301; 3 ASTLR 520 at [123]-[153]. 100However, it is not necessary to explore this possibility further in these proceedings. Having raised the question with counsel, I am satisfied that the proceedings do not fall within the definition of "charitable trust proceedings". 101Section 5 appears in Part 2 of the Charitable Trusts Act. That Part is entitled "Protection of Charitable Property". Section 5 is in the following terms: "Definition of 'charitable trust proceedings' (1) In this Part, 'charitable trust proceedings' means proceedings in the Court brought, whether by any trustee of a charitable trust or by any other person, under the Court's statutory or general jurisdiction with respect to any breach or supposed breach of a charitable trust, or with respect to the administration of a charitable trust. (2) However, in this Part 'charitable trust proceedings' does not include: (a) proceedings for the bringing of any appeal, or (b) proceedings relating merely to the construction of a trust instrument." 102Section 3 of the Act defines the following terms: "'charitable trust' means any trust established for charitable purposes and subject to the control of the Court in the exercise of the Court's general jurisdiction with respect to charitable trusts. 'trust property' means any property subject to the charitable trust concerned". 103The questions in dispute in these proceedings relate to the internal management of the BIC, not the terms upon which the association holds property or its use of the property it holds. The proceedings relate to administration of the BIC, not the administration of any trust (charitable or otherwise) of which the BIC may be trustee. 104There appears to be no present threat to the property held by the BIC. The course of interlocutory proceedings may have settled down the parties' anxieties about the day-to-day business of the association , despite their uncongenial rhetoric towards one another. One can but hope. That may be overly optimistic. I take refuge in the absence of any application for final relief affecting the disposition of property of the association, as such. The focus of all attention at the hearing of the amended summons was on the constitution of the Executive Council. 105If not contained, reciprocal allegations of misconduct and maladministration could go beyond the bounds of a dispute about internal management and force upon the Court a critical review of the terms upon which the association holds property. However, in my assessment, that point has not been reached in these proceedings. The parties' present dispute can be resolved without pausing further to dwell on an application of charity law. 106Although these proceedings can be determined without further exploration of the law of charities, the parties are on notice that it might impact on any future disputes affecting the BIC.

A BREAKDOWN IN PERSONAL RELATIONSHIPS 107These proceedings have their origins in two phenomena. The first, and most important, is a complete breakdown in the personal relationship between the first plaintiff and the first defendant, such as it may ever have been. The second is a perceived ambiguity in the terms in which the BIC's constitution defines the respective powers of holders of the offices of President and General Secretary of the BIC. 108The proper determination of these proceedings does not require an exploration of the "why's and wherefore's" of the breakdown in the parties' relationship. On the contrary, it is in the best interests of the BIC and its general membership to allow personal relationships to quieten down. Reconciliation of the association's factional leaders, and their respective followers, would bring its own rewards for everybody. For the Court to delve deeply into the origins of the breakdown in personal relationships that have affected the conduct of the affairs of the Executive Council and the governance of the association would be counter productive. 109It is not necessary for there to be any judicial attribution of blame. The Court is obliged to publish reasons for the orders it makes, to explain its decision. Beyond that, there is no necessity to go. The focus of the Court is upon a rendering of assistance to the membership of the association to enable it to conduct the affairs of the association, in accordance with law, without undue disharmony. The rifts that have been allowed to develop into chasms can, ultimately, be healed only by the membership of the BIC. 110It is sufficient for the disposition of these proceedings for the Court to record that any spirit of co-operation between the first defendant as President and the first plaintiff as General Secretary of the BIC completely evaporated on or about 24 April 2011. 111Between 24 April 2011 and 11 June 2011 or thereabouts, the first plaintiff was, by degrees, displaced from the position of General Secretary. This is said by the first and third defendants to have been because he failed to attend three meetings of the Executive Council (on 16 May, 2011, 29 May 2011 and 1 June 2011), with the consequence, attributed to clause 29(g) of the constitution, that his office as General Secretary is said to have become vacant. 112The first plaintiff denies the validity of the three meetings - from which he appears to have absented himself deliberately - because they were called by a person purporting to act as the Assistant General Secretary of the association (in purported reliance on clause 24 of the constitution) rather than himself. He claims that (by virtue of various provisions of the constitution including, particularly, clauses 23(e) and 32(b)) it was his prerogative, alone, to call meetings of the Executive Council. 113Clause 30 provides a procedure whereby the first plaintiff could have resigned his office as General Secretary by notice in writing given to the President, subject to subsequent consideration by the Executive Council or, upon a reference by the Council, to a general meeting of members of the BIC. It has no application to the facts in these proceedings. The first plaintiff did not invoke it or come within its purview. 114Significantly, clause 31 provides a procedure whereby a general meeting of the members of the BIC can, by resolution, remove any member of the Executive Council from office and appoint another person to hold that office until the expiration of the displaced office-holder's term. That clause includes provision of an entitlement in the member of the Executive Council whose office is under challenge to make representations to the meeting at which the resolution for his or her removal is to be considered. 115Clause 31 was not invoked by or against the first plaintiff in the events under consideration in these proceedings. The fact that it was not tells against the first and third defendants. 116The provisions of clause 31 are independent of those found in clauses 16 and 17 relating to disciplinary action taken against a member of the association. Those clauses provide a procedure whereby the first plaintiff could, possibly, have been expelled, or suspended from membership of the BIC, for a persistent refusal or neglect to comply with the constitution, or for persistent and wilful conduct in a manner prejudicial to the interests of the association. 117The first plaintiff's displacement as General Secretary in the period between 24 April 2011 and 11 June 2011 or thereabouts involved no pursuit of disciplinary action against him. 118The possibility of disciplinary action against him was discussed at an Executive Council meeting held on 10 June 2011 and at a General Meeting of the association held the following day. The first defendant informed members of the BIC in attendance at the General Meeting that the Executive Council had "started steps" towards disciplinary action. However, the meeting counselled caution and, so far as the evidence goes, no concrete steps were ever taken to initiate action under clause 16.

CONSTITUTIONAL CONTROL AND MANAGEMENT OF THE BIC 119Control and management of the BIC is vested in the Executive committee by clause 18, in the following terms: "THE COMMITTEE POWERS OF THE COMMITTEE 18. The Committee of management of the Centre shall be called the Executive Council and, subject to the Act, the Regulation and these rules and to any resolution passed by the Centre in General Meeting: (a) shall control and manage the affairs of the Centre; (b) may exercise all such functions as may be exercised by the Centre other than those functions that are required by these rules to be exercised by a general meeting of members of the Centre; and (c) has power to perform all such acts and do all such things as appear to the Executive Council to be necessary or desirable for the proper management of the day to day running affairs of the Centre". 120Clause 18 needs to be read in the context of clause 35. Sub clauses 35(c) - (d) govern the procedure for requisition of a general meeting of the members of the BIC by not less than one third of the total membership. Sub clauses 35(a) - (b) are in the following terms: "35 (a) The Executive Council may, whenever it thinks fit, convene a General Meeting of the Centre. All such meetings shall be called by the General Secretary. (b) Any matter which is not covered or clearly defined in the foregoing objects or rules, shall be referred to a General Meeting for its decision. Any decision made at a General Meeting on any matter shall be regarded as final and shall prevail over any other decision with regard to that matter." 121Clauses 36 and 37 govern the calling of, and the conduct of business at, annual general meetings of the BIC. That business includes the reception of reports from the Executive Council upon the activities of the association over the preceding year and the election of office bearers of the association and ordinary members of the Executive Council. 122By virtue of clause 19, the Executive Council comprises 15 members. Eight of those are office bearers. The office bearers are listed in clause 19(b) in the following order: President, Vice President, General Secretary, Assistant General Secretary, Treasurer, Secretary for Women's Interests, Secretary for Youth Affairs and Publication Secretary. 123By virtue of clause 19(c), each member of the Executive Council, subject to the constitution, holds office for two financial years from the date of the member's election. Each member is eligible for re-election in the same position only for a second term. A member cannot hold the same office bearer's position for more than two consecutive terms in the office. However he or she can run for another potential position during his or her third term with the Executive Council. 124The respective functions of the President, the Vice President, the General Secretary and the Assistant General Secretary are described in clauses 21 to 24 inclusive: "PRESIDENT 21. The President shall: (a) be the Executive head of the Centre and chief office-bearer of the Executive Council; (b) preside over all meetings of the Centre; (c) endeavour to see that other members of the Executive Council carry out their duties to the best of their abilities; (d) represent the Centre or appoint a nominee to represent the Centre in all external affairs; (e) in the case of emergency decisions which would normally be made by the Executive Council, notwithstanding any rule contained in this constitution to the contrary; (f) Any decision made pursuant to rule 21(e) must be ratified or invalidated by the Executive Council at the first meeting of the Executive Council subsequent to the making of the President's decision. VICE PRESIDENT 22. In the absence of the President, the Vice President shall act as the President. GENERAL SECRETARY 23. The General Secretary shall: (a) Within 14 days of being appointed as General Secretary, lodge notice with the Centre of his address; (b) Hold the office of Public Officer; (c) Co-ordinate the activities of the members of the Executive Council (d) Keep the President informed of all aspects of the Centre; (e) Arrange all meetings and functions of the Centre with the concurrence of the President; (f) Attend to all correspondence received and sent by the Centre; (g) Keep minutes of the following: i. The names of members of the Executive Council present at an Executive Council meeting or at a General Meeting; and ii. All proceedings at Executive Council meeting and General Meetings; and (h) Ensure that the chairperson at a meeting or the chairperson of the next succeeding meeting signs the minutes referred to in rule 23(g). ASSISTANT GENERAL SECRETARY 24. The Assistant-Secretary shall assist the General Secretary in carrying out all his/her duties and in the absence of the General Secretary shall act as the General Secretary." 125In the first plaintiff's case, the role of the General Secretary in the calling of meetings, as evidenced by clause 23(e), is of critical significance. He contends that the General Secretary, and the General Secretary alone, can call a meeting of the Executive Council. 126The first and third defendants meet that case at three levels. First, they contend that, because the President is the executive head of the BIC and the chief office bearer of the Executive Council (according to clause 21(a)) charged with a power and duty to supervise the work of other members of the Executive Council (clause 21(c)), the General Secretary is bound to call a meeting of the Executive Council if required by the President to do so. Secondly, they contend that, if the General Secretary refuses or fails to call a meeting of the Executive Council as required by the President, the President can make an "emergency decision" subject to review by the Council: clauses 21(e) - (f). Thirdly, they contend that, if the General Secretary refuses or fails to call a meeting of the Executive Council as and when required by the President, the General Secretary may be taken to have absented himself, or herself, from the performance of his or her duties, with the consequence that those duties can be performed by the Assistant General Secretary in reliance upon clause 24. 127Clauses 29, 30 and 31 of the constitution respectively provide for casual vacancies in the office of a member of the Executive Council, resignation of office bearers and members of the Executive Council, and removal of members of the Executive Council. Clauses 30 and 31 have already been noticed. 128Clause 29 provides for "a casual vacancy in the office of a member of the Executive Council" to occur if particular contingencies occur. One contingency relates to resignation. Another relates to removal. Those provisions relate, in concept, to the topics dealt with by clauses 30 and 31; however, there is, at least, a disconnect in the language used, and there may be a drafting error, at least in relation to removal from office. Other provisions of clause 29 deal with casual vacancies caused by death, cessation of membership of the BIC, insolvency, mental incapacity, employment by the BIC, and direct or indirect involvement in any contract or proposed contract with the BIC. The contingency material to the current proceedings is that found in clause 29(g). It provides that a casual vacancy occurs if a member of the Executive Council "is absent without the consent of the Executive Council from three consecutive meetings of the Executive Council and subsequently accepted by the Executive committee". 129The parties accept that nothing turns on the difference in terminology here used. The references to "the Executive Council" and "the Executive committee" are intended, in each case, to refer to "the Executive Council". 130The first plaintiff's reaction to his marginalisation by the first defendant in the conduct of the affairs of the BIC is understandable, but it has ultimately not assisted his position. In important contests with his opponents, he surrendered the field to them. In protest, he did not attend the three meetings upon which the first defendant relies to ground a contention that the office of General Secretary became vacant. Nor did he attend a general meeting which, the first defendant contends, ratified the Executive Council's declaration of a casual vacancy. In furtherance of the same protest, he declined to participate in the conduct of an election for the Executive Council at the AGM held on 17 June 2012. His decision to boycott the AGM, as an unconstitutional proceeding, amounted to a qualified disengagement from governance of the association. 131The key to a correct determination of the proceedings, in these circumstances, is to be found in a consideration of the terms of the constitution. 132The central problem may be that the definition of the respective powers of the President (in clause 21 of the constitution) and the General Secretary (in clause 23) is, arguably, predicated upon co-operation between those two office bearers. When, for whatever reason, the spirit of co-operation departed from their relationship, tensions between clauses 21 and 23 assumed critical significance. 133At the risk of over-simplification, an essential question for determination by the Court is whether, on the proper construction of the constitution, one or the other (and, if so, which) of the President and the General Secretary has precedence over the other in the conduct of the affairs of the BIC.

THE COURSE OF EVENTS IN DISPLACEMENT OF THE GENERAL SECRETARY 134On 24 April 2011 a meeting of the Executive Council was held. It marked the parting of the ways between the first plaintiff and the first defendant. 135There is a dispute between the parties as to what, precisely, occurred at this meeting. Competing minutes have been prepared. The version relied upon by the first defendant bears his signature and that of a person purporting to do so as the Assistant General Secretary of the association. Those signatures evidence an attempt to comply with the provisions of clauses 23(g) and 23(h), relying upon the (contentious) absence of the first plaintiff as General Secretary and the provisions of clause 24. The version relied upon by the first plaintiff bears his signature and that of another person, but no signature of the first defendant as President. 136In my opinion, it is not necessary to resolve any dispute of fact about what did, or did not, occur at the meeting. Whatever occurred, the parties are agreed that the meeting provided a turning point in their relationship. The first plaintiff was sidelined from the work of the Executive Council under the first defendant's stewardship. 137For the particular purpose of explaining the course of future events, notice is taken of an extract from the version of the minutes propounded by the first plaintiff. After a recitation of complaints about the first plaintiff and the quality of his conduct as General Secretary (which I do not pause to determine), the minutes record the following paragraph: "...To keep record, it was decided on majority vote that the President will write to the GS [a common colloquial reference to the office of General Secretary] a letter asking to pay the outstanding money to BIC with a note of caution that he has taken himself out of the BIC EC [a colloquial reference to the Executive Council] and has lost the right to act as GS of BIC. If he does not get rectified within a reasonable time, the President will right him another letter making him inactive as a GS keeping his right to attend and vote in EC meetings. It was further decided that since [the first plaintiff] is opposed to all the decisions today and has indicated he will not sign today's minutes, the Assistant Secretary appointed today will sign the minutes of today's EC meeting instead of the GS. ..." 138The next step in the first plaintiff's displacement was taken on or about 27 April 2011 when, as anticipated (at least by the first defendant) at the meeting of 24 April 2011, the first defendant, in his capacity as President, wrote a letter dated 27 April 2011 addressed to the first plaintiff as General Secretary. 139That letter recited complaints apparently earlier made against the first plaintiff, with some elaboration. It accused the first plaintiff of having "created a parallel illegal Executive Council in your illegal meetings bypassing the constitution and the President". It concluded with the following paragraph: "... You have taken yourself out of the umbrella of BIC constitution and of the original EC by forming an illegal EC, holding illegal EC meetings, appointing Vice President and President of a parallel Executive Council [sic] ignoring and bypassing the President and the constitution. Therefore, you have automatically lost the right of acting as a General Secretary of our original Executive Council..." 140In the next development the first defendant, in his capacity as President, wrote a letter dated 9 May 2011 to the first plaintiff. The substance of the letter was in the following terms: "The Executive Council (EC) of BIC discussed in its 20th meeting about the unfortunate deadlock you have created in the BIC. Because of your persistent refusal and neglect to comply with the constitution, persistent and wilful [sic] act against the interest of the [BIC], your terrible insubordination with the President and since you have automatically lost your right of working as our General Secretary (GS) (please refer to my letter 27 April written to you), you will no longer be allowed to perform your duties of the GS. You will however, be able to use your right of attending and voting in the EC meetings as usual until you are advised otherwise. The Assistant General Secretary, .........., will perform the duties of the GS until further order with retrospective effect from 27 April, 2011. Since you are unethically and illegally holding membership subscription money of over $9,000 for up to two years and $1,000 you misappropriated from the mosque's donation money you are hereby advised not to receive any membership subscription money for BIC from the community and to immediately deposit the outstanding money of over $10,000 to BIC account. You are reminded that the GS of the previous term was made defunct / inactive like you by the President concerned. As you know, the EC of the previous term dismissed the President. But the court of law not only reinstated the President but also ordered the entire EC to obey the President and hence the members started again to obey the President and continued so till [sic] the term ended. If there is anything to discuss with me please don't hesitate to contact me ....." 141The penultimate paragraph of the letter I take to be an allusion to Chowdhury v Bangladesh Islamic Centre [2008] NSWSC 1073. If that is so, it adds a partisan gloss to the Court's determination that is not warranted by an objective reading of the Reasons for Judgment. 142The next development was, ostensibly, the convening of three meetings of the Executive Council (on 16 May 2011, 29 May 2011 and 1 June 2011) by the Assistant General Secretary said by the first defendant to have been appointed on 24 April 2011, in concurrence with the first defendant as President, relying upon clause 24. 143The first plaintiff did not attend these meetings. I accept that he had notice of them and consciously stayed away. He disputed the validity of the appointment of the Assistant General Secretary who, nominally, called them. He maintained that he alone, as General Secretary, had authority to call a meeting of the Executive Council. He regarded the meetings as "not valid" meetings of the Executive Council. 144Each set of minutes for the three meetings was signed by both the first defendant as President and the Assistant General Secretary purportedly appointed on 24 April 2011. 145The minutes demonstrate that all three meetings were conducted in the hothouse atmosphere of the meeting of 24 April 2011, and with an overwhelming consciousness of a constitutional crisis within the BIC. 146That can be illustrated by an extract from each set of minutes. 147The minutes relating to the meeting of 16 May 2011 include the following numbered paragraphs: "4. The proposal of the President that a 'community meeting be held soon' was discussed. It was decided that such a community meeting will be held on Sunday, the 29th of May 2011 at 11.00am in Sefton mosque. All the previous Presidents and GSs will be invited in addition to some selected people to discuss the possibility of reaching a permanent solution to shameful chaotic situation in BIC. The present deadlock situation created by the GS [a reference to the first plaintiff] will also be briefed to the audience and seek their suggestion. All the local Bengali newspaper will be invited to attend. ... 8. The members approved the letter of the President written to the GS seizing his power as GS. ..." 148The reference to the letter of the President I take to be a reference to the first defendant's letter dated 9 May 2011 to the first plaintiff. That letter incorporated by reference the first defendant's earlier letter dated 27 April 2011. Both letters could fairly be described by a lay person as a letter "seizing" the power of the first plaintiff as General Secretary. Whether or not the first defendant was justified, in law, in writing those letters, his dispatch of them must be taken as having been approved by the Executive Council constituted under his influence. 149The first plaintiff, then supported by others now joined as defendants, responded by commencement of these proceedings on 26 May 2011. 150No community meeting appears to have been held on 29 May 2011 as contemplated at the meeting of 16 May 2011. However, at 4.00pm on the 29th, an "emergency" meeting of the Executive Council was held. Paragraph 3 of the minutes of that meeting reads as follows: "Members participated in discussion about the court case started by [the first plaintiff] and others against the EC members including the President [the first defendant]. It was decided to appoint a good lawyer to defend the case." 151The plaintiffs filed their amended summons on 1 June 2011. 152The minutes of another "emergency" meeting of the Executive Council, held that evening, include the following paragraphs: "4. The meeting decided that the GM [which I take to be a reference to a General Meeting] on 12 June 2011 called by [the first and second plaintiffs as they then were] without Presidential concurrence was unconstitutional. Bankstown Police should be informed of this with a request to stop that unconstitutional GM. 5. When the President was concluding the meeting with vote of thanks, the acting GS [sic] sought permission to have the meeting extended to discuss an important matter under the miscellaneous agenda. Getting the permission he informed that [four named individuals, including the first, second and fourth plaintiffs as they were] have failed to attend three consecutive meetings without EC's permission. Since these persons have become dangerous for the Centre by forming a parallel EC the meeting decided to declare their EC positions vacant according to clause 29(g) and they will be informed of this decision as quickly as possible." 153The first plaintiff's non-attendance at the meetings of 16 May 2011, 29 May 2011 and 1 June 2011 was not the subject of consent of the meetings. They provided a pretext for the operation of clause 29(g) of the constitution. 154Whether the declaration of a casual vacancy at the third of the three meetings was sufficient to fall within the expression "subsequently accepted by the Executive committee" within the meaning of clause 29(g) is, at least, contentious. 155By a letter dated 2 June 2011 the first defendant, as President, notified the first plaintiff of the casual vacancy allegedly created by his non-attendance at the three meetings, and invited an "appeal" against the decision of the Executive Council of the previous day. The substance of the letter was in the following terms: "You know that we had an emergency Executive Council (EC) meeting of Bangladesh Islamic Centre yesterday. You have failed to attend three consecutive EC meetings without the consent of the EC. Therefore, the EC has declared your position of General Secretary vacant according to the clause 29(g) of our constitution. You may, however, make an appeal against this decision to the EC and/or to the next general meeting scheduled to be held on Saturday 11th June, 2011 at 1.00pm in Sefton mosque. ..." 156On 11 June 2011 an "emergency general meeting" of the BIC was convened as anticipated in the first defendant's letter. It resolved, in effect, to ratify the steps taken against the first plaintiff by the Executive Council under the first defendant's influence. 157This is evidenced by the following extract from minutes of the general meeting: "... The President gave a detailed picture of the current crisis in BIC and explained the reason for making the then General Secretary inactive for his activities against the organisation and for non-compliance to the President, Executive Council (EC) and the constitution of BIC. After being inactive, [the first plaintiff] and associates obtained a Supreme Court Summons against the President and three others seeking reinstatement. The house [which I take to be a reference to the "eighty male and twenty two female participants" in attendance at the meeting] authorised the President to defend the court case on behalf of Islamic Centre with a majority of 79 votes in favour. The President asked the members whether [the first plaintiff] court case is justified or not. Everybody said no. Then the President proposed that if somebody has some grievance, they must appeal to the EC and then if necessary, to the GM / AGM. The house agreed to this and recommended constitutional amendments that if somebody skips these two steps he will be deemed to have been automatically expelled from BIC. Many members strongly suggested resolving the crises with [the first plaintiff] and his followers through amicable negotiation. Everybody appreciated this. The President also agreed to an amicable settlement. The President asked the general members whether they approve the act of making the then General Secretary inactive for his aforesaid activities. The meeting unanimously approved the action. The President informed the house that the EC has started steps according to the clause 16(a)(i)(ii) and (iii) to expel [the first plaintiff] from the centre for his dangerous work by forming a parallel EC, calling of GM without concurrence from the President and many other anti organisational work. The house appreciated the step, but suggested go slow principle. ... When the President invited discussion on permanent eradication of politics from the mosque many members participated. Majority of the members asked the President to come up with a constitutional amendment in the next AGM so that power struggle and politics is permanently removed from the mosque through replacing the present election system. ..." 158The reference in these minutes to "clause 16(a)" is a reference to part of clause 16(a) of the constitution. Clause 16 is entitled "Disciplining of Members". It provides a mechanism for disciplinary action to be taken against a member of the BIC, by the Executive Council, with procedural fairness safeguards. 159Clause 16(a) is in the following terms: "16. (a) Where the Executive Council is of the opinion that a member or life member of the Centre has done one of the following: (i) Persistently refused or neglect ed to comply with a provision or provisions of these rules; or (ii) Persistently and wilfully acted in a manner prejudicial to the interests of the Centre; the Executive Council may, by resolution do one of the following: (iii) Expel the member from the Centre; or (iv) suspend the member from membership of the Centre for a specified period." 160A BIC member disciplined by the Executive Council under rule 16 has a right of appeal to a general meeting of the association under clause 17. That clause (entitled "Right of Appeal of a Disciplined Member") also has procedural fairness protections for a member the subject of disciplinary action. 161 This judgment proceeds upon the basis that no disciplinary action (or, at least, no legally effective disciplinary action) has been taken against the first plaintiff. As was conceded by the parties active in the conduct of the final hearing, all parties to the proceedings are, and were at all material times, members of the BIC. No submission has been made by any defendant that the first plaintiff should be denied relief on the ground that he is not a member of the BIC or, though a member, he is the subject of pending disciplinary action. 162Nevertheless, evidence adduced at the final hearing confirms that the fires of factionalism have yet to be extinguished. 163Hopes for a negotiated settlement of factional wars expressed at the general meeting held on 1 June 2011 have thus far come to nothing. 164On 10 August 2011, in Reasons for Judgment published as [2011] NSWSC 893, the Court dismissed a motion filed on behalf of the defendants designed to enforce (through the summary procedures for which s 73 of the Civil Procedure Act 2005 (NSW) provides) a settlement agreement which they contended had been negotiated on 19 June 2011. The Court was not satisfied that any enforceable agreement emerged from an informal process of mediation conducted at a settlement conference on 19 June 2011. 165In the wake of its determination of 10 August 2011, the Court lent its aid to further attempts to settle disputes within the BIC. 166On 10 August 2011 the Court contemplated that, with the co-operation of all parties, it might make orders to facilitate the conduct of a fresh election for the Executive Council at an annual general meeting: [2011] NSWSC 893 at [61]-[62]. 167On 25 August 2011 the Court gave directions designed to identify an independent solicitor prepared to act as a referee for the purpose of settling a list of members entitled to vote in a BIC election which, the Court anticipated, could be convened upon an exercise of jurisdiction under s 1322 of the Corporations Act: [2011] NSWSC 954 at [12]. 168Supplementary orders were required on 8 September 2011 for the purpose of giving effect to the proposed reference: [2011] NSWSC 1597 at [2]-[3]. 169On 15 December 2011 orders were made, inter alia, for the appointment of a referee: [2011] NSWSC 1597 at [22] (16)-(21). 170On 13 April 2012 a report from the referee was adopted by the Court and directions were given for the parties to make submissions in relation to the procedures for the conduct of a general meeting of the association at which a new Executive Council could be elected: [2012] NSWSC 348 at [6], [24], [27], [31]-[33] and [37]-[39]. 171The optimism that attended the Court's hopes for a consensual approach to the conduct of a fresh election, governed by orders under s 1322, faded when the parties failed, by 23 April 2012, to agree upon essential mechanical steps: [2012] NSWSC 348. 172All hope was abandoned on 27 April 2012 when the Court, confronted with ongoing chaotic disagreement about fundamentals, came to doubt the jurisdictional foundation upon which it had relied in moving towards orders under s 1322. It dissolved some of the interlocutory orders earlier made (on 15 December 2011) for the purpose of assisting the orderly administration of the association pending the holding of a general meeting. It adjourned the proceedings for directions in anticipation of the necessity for a contested final hearing of the amended summons: [2012] NSWSC 416. 173The net effect of the parties' dysfunctional behaviour was that the annual general meeting of the BIC required (by the Associations Incorporation Act 2009) to be held by 31 August 2011 still had not been held by mid 2012. 174On 2 May 2012 the first defendant applied to the NSW Department of Fair Trading for an extension of time within which the BIC's AGM might be held. By a letter dated 24 May 2012 addressed to the first defendant the Department approved that request, and required the association to hold its annual general meeting on or before 30 June 2012. 175As a preliminary step towards issue of a notice of such a meeting, the first defendant secured the services of an accountant to act as "the independent returning officer" for an election to be held at the proposed meeting. 176On or about 31 May 2012 the first defendant arranged for a notice of meeting to be issued, convening an annual general meeting of the association for 17 June 2012. It was issued in the name of the person purportedly appointed assistant General Secretary on 24 April 2011. He signed the notice as "General Secretary". 177On 14 June 2012 the first plaintiff applied, by motion, for an interlocutory injunction to restrain the conduct of the meeting scheduled for 17 June 2012. On 15 June 2012 that application was dismissed. 178The meeting, and the election, scheduled for 17 June 2012 took place. In accordance with clause 20(g) of the association's constitution, the returning officer announced the results of the election. She also recorded that announcement in a memorandum dated 17 June 2012. 179As recorded in that memorandum, the results of the election of the Executive Council were as follows: "President: Dr Ayubur Rahman Chowdhury Vice President: AKM Shamsuzaman General Secretary: Waliur Rahman Assistant Secretary: Mohammad Abdul Gofur Treasurer: Mohammad A Islam Publications Secretary: Harun Rashid Azad Secretary for Youth Affairs: Md M Hossain Mirdha Secretary for Women's Affairs: Khasrul Alam Talukder Member: Matiur Rahman Member: Habib Hassan Member: Anisur Rahman Member: Gazi Kamrul Hossain Khan Member: Riad Mahmood Member: Shah Alam Member: Mohamed Liakut" 180The meeting of 17 June 2012 was boycotted by the first plaintiff and, it may be inferred, a number of his supporters. 181They held their own "emergency general meeting" of the association on 30 June 2012. That meeting was conducted by the first plaintiff as "General Secretary" and presided over by the second plaintiff, as he then was, allegedly as "President". 182On 28 June 2012 the first defendant applied to the Court, by motion, for an interlocutory injunction to restrain the plaintiffs from acting on behalf of the BIC and to stop the meeting proposed for 30 June 2012. That application was unsuccessful. 183The Court's refusal to injunct the meetings of 17 and 30 June 2012 was, in each case, based upon a reluctance to prevent meetings taking place before the conduct of a final hearing. The following observations of Young CJ in Eq in Countouris v Kallos [2008] NSWSC 840; 67 ACSR 543 at 546 [14] were noted on each occasion: "Generally speaking, courts are very loathe to prevent meetings of members or people casting votes at meetings of members. Experience shows especially with public companies, that members get tremendously upset if they go to a function all prepared to discuss matters and to vote to find that there is some court order preventing them from exercising their democratic rights. As a general rule, the court will not prevent meetings and discussions and voting, and a fortiori that that is the situation where if subsequently it is shown that there was equitable fraud or breach of duty or operative maliciousness that election would be set aside. ..." 184The minutes of the meeting of 30 June 2012 prepared by or on behalf of the first plaintiff include the following paragraphs which illustrate the depths of the parties' dysfunctional disputation: "3. The General Secretary [the first plaintiff] briefly stated the current situation of BIC which includes the unconstitutional activities of [the first defendant] with purported removal of the General Secretary [the first plaintiff] and other 8 (eight) EC Members from their positions against EC decision. [The first defendant] is continuously violating the BIC constitution. ... 5. It was discussed that the AGM 2011 called .... on 17th June 2012 [by the 'General Secretary' in the first defendant's faction] is unauthorised and unconstitutional. The AGM not properly called because [the person who called it] never was a General Secretary of BIC therefore he is not authorised to call any meeting on behalf of BIC. The AGM he called and conducted on the 17th June 2012 is declared unconstitutional and invalid unanimously by the Emergency General Meeting today. It is necessary to take legal action against [the person who called the meeting of 17th June 2012] for unlawful activity and mislead BIC members. ... 7. The AGM was arranged by [the first defendant] and his defendant party was unauthorised and constitutional. It is seen from the email correspondence between [the first plaintiff] and [the accountant who acted as returning officer at the meeting of 17th June 2012] on the 14th June and the text message on the 15 June 2012 that the appointment and participation of [the returning officer] was controversial. For the purpose of the Association's constitution she has not accepted as Returning Officer and will not be the Returning Officer for the meeting (election). Also it is reported that only one for one person was attended in the so called AGM on the 17th June 2012. A written complaint regarding the election is submitted by [a member of the BIC who, it might be inferred, supports the first plaintiff] within 24 hour of election to the Returning Officer.... The AGM and Election held on the 17th June is declared invalid in today's EGM and any decision taken on that AGM is also were invalid. 8. It was decided in the EGM that until the Supreme Court finalize the matter the current EC lead by President [the second plaintiff] and General Secretary [the first plaintiff] will run the activities and functions of BIC. 9. The responsibility is given to [the first plaintiff] to contact and co-operate with the appointed [solicitors on the record for the first plaintiff] and all relevant documents for the Supreme Court case must be handover to them by the plaintiffs. No money of BIC accounts will be use or spent in the court proceedings. ..." 185Similar sentiments are recorded in minutes of another "emergency general meeting" convened by the first plaintiff (and presided over by the second plaintiff) on 26 August 2012. 186As each side of the record articulates its case in terms of perceived "constitutional" issues, it is to an analysis of the BIC's constitution that the Court must now turn.

ANALYSIS OF THE CONSTITUTIONAL FRAMEWORK OF THE BIC 187The rights and obligations of all parties to these proceedings, in relation to the affairs of the BIC, are governed by the legislation pursuant to which the association maintains its registration (the Associations Incorporation Act 2009 and the Associations Incorporation Regulation 2010) and the constitution registered under that legislation. 188The BIC was incorporated under the Associations Incorporation Act 1984. Under Part 2 of Schedule 4 of the 2009 Act, it is now taken to have been registered under the 2009 Act: Luen Fook Tong Incorporated v Lowe [2011] NSWSC 1004 at [39]. 189The long title to the 2009 Act delineates its operation: "An Act to provide for the registration of clubs, societies and other non-profit associations; to provide for the registration of those associations after registration; and for other purposes." 190Section 3 of the Act defines its objects. They are: first, to establish a scheme for the registration of associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities; and secondly, to make provision with respect to the corporate governance and financial accountability of associations registered under that scheme. 191A central tenet of the Act is that an association registered under the Act must not conduct its affairs so as to provide pecuniary gain for its members: s 40(1). An organisation provides "pecuniary gain" for its members if, inter alia, it carries on any activity for the purpose of securing pecuniary gain for its members or if it holds property in which the members have a disposable interest: s 5(1). However, an organisation does not provide pecuniary gain for its members merely because members enjoy facilities or services provided by the organisation for social, recreational, educational or other like purposes or they receive a bona fide payment of remuneration: s 5(2). 192In the event that a registered association is wound up, any surplus property it holds must be distributed in a manner approved by the Director General responsible for administration of the Act, and it cannot be distributed for the personal benefit of any member or former member of the association: s 65(3). 193The scheme of registration for which the Act provides entrusts the Director General with authority to determine an application for registration (s 7); to appoint an administrator to administer the affairs of an association that has persistently failed to comply with the requirements of the Act (s 55); to apply to the Court for an order that an association be wound up (s 62(2)); and to effect a cancellation of an association's registration in defined circumstances (ss 72-77). 194An association that does not comply with the requirements of the Act is liable to lose the benefits of registration by one means or another. 195An application to the Court for the winding up of an association can be made by the association itself, a member or creditor of the association or by the Director General: s 63(2). The circumstances in which the Court may order that an association be wound up include circumstances in which the committee of the association charged with management of its affairs (in these proceedings, the Executive Council) has acted in affairs of the association in the interests of the committee or committee members rather than in accordance with its objects, or in any manner whatever that appears to the Court to be unfair or unjust to the association's members: s 63(1)(f). A winding up order can also be made if the Court is of the opinion that it is just and equitable that the association be wound up: s 63(1)(i). 196If the members of the BIC were to remain chronically divided about fundamental questions affecting the conduct of the affairs of the association, or if the Executive Council were to remain deadlocked, the association could be exposed under these provisions to proceedings for its winding up. 197The present proceedings do not bear that character. Nevertheless, all who enjoy the fruits of membership of the BIC and who hold its continuing operation as a priority need to understand that, if management of the affairs of the association continues to be dysfunctional, everybody may lose out. There is no room for competing factions to maintain parallel management teams. There can be but one Executive Council with authority under the constitution. 198It is not only the membership of a registered association that benefits from registration of the association under the Act. A registered association has the legal capacity and powers of an individual: s 19. Those powers include powers to make contracts and to execute legal documents: ss 21-22. People who deal with a registered association can do so with the benefit of assumptions as to the authority of the association's representatives: ss 23-24. 199The Act mandates that an association establish a committee to manage its affairs: s 28(1). A committee (such as the Executive Council) so established can exercise such of the association's powers as are not required by the Act or its constitution to be exercised by the association in general meeting: s 28(3). 200A committee member's acts are valid despite any defect in his or her appointment: s 28(4). However, that does not mean that a person not validly appointed to membership of a committee can bind the association merely by self-assertion of an entitlement to do so. A void appointment is no appointment at all, not merely a defective one. 201I mention this because some members of the BIC - across factional lines - may believe that a person can exercise power as a member of the, or an, Executive Council merely by asserting an entitlement to do so. Such a belief is complemented by an equally erroneous belief that a member of the Executive Council can be removed from the Council without the due process for which the association's constitution provides. 202The constitution must be read as a whole. It is not permissible to read particular provisions out of context. The fact that the Executive Council has power to "control and manage the affairs" of the BIC should not blind its membership to the claims of members of the association not serving on the Council. Nor should anybody, whether on the Executive Council or not, lose sight of the fact that the association serves objectives that transcend the interests, and identity, of all members. The BIC is a non-profit association serving a community, and engaged in charitable activities. 203The constitution provides a hierarchy of decision-making. Clause 35(b) places a General Meeting of the members of the association at the apex: "Any decision made at a General Meeting on any matter shall be regarded as final and shall prevail over any other decision with regard to that matter." The generality of that provision does not free the association's membership from constraints of the constitution. Nevertheless, subject to the constitution, the members of the association are at the topmost level of decision making, with the broadest of the powers distributed between decision makers. 204The powers conferred on the Executive Council by clause 18 are not the exclusive domain of the Council. The terms of both clause 18 and clause 35(b), and the character of the BIC as a community organisation, combine to prevent clause 18 from being construed as a conferral of exclusive powers on the Executive Council. Clause 18 is expressed in broad terms, but it lacks the exclusivity that is sometimes found in a grant of power to the board of directors, or governing council, of a commercial operation. Cf, National Roads and Motorists' Association v Parker (1986) 6 NSWLR 517 at 518C-D and 521C-E. 205There is a subtle difference in the job descriptions of the President, the Vice President, the General Secretary and the Assistant General Secretary on the one hand (in clauses 21-24 respectively) and the job descriptions of the Treasurer, the Secretary for Womens' Interests and the Secretary for Youth Affairs (in clauses 25-27 respectively) on the other hand. I leave to one side the office of Publication Secretary which, although listed in clause 19(b), is not the subject of a job description beyond that which the title to the office itself implies. 206The job descriptions of the President, the Vice President, the General Secretary and the Assistant General Secretary are expressed in imperative terms. Clause 21 provides that "The President shall...". Clause 23 provides that "The General Secretary shall...". In similar terms, clause 22 ties the job of the Vice President to that of the President, and clause 24 ties the job of the Assistant General Secretary to that of the General Secretary. In each case the word "shall" assumes prominence. 207The job description of the Treasurer, in clause 25, turns upon the imposition of "duties" that are expressed in inclusive, not exclusive terms. 208The job descriptions of the two Secretaries, in clauses 26 and 27 respectively, are expressed in terms of those officers being responsible for particular functions. Each Secretary "shall be responsible" for important, although relatively abstract, areas of interest. 209In my opinion, these subtle differences in the use of language are important. The respective job descriptions of the President and the General Secretary are expressed in terms consistent with those officers serving the BIC at the centre of all decision making. The fact that the Treasurer's job description is expressed in terms of "duties" also underscores the importance of an office dedicated to the maintenance of financial records essential to the integrity and viability of the association. 210On a comparison of the respective job descriptions of the President and the General Secretary, other subtleties of language are discernable. Both positions are important, and both call for an independent exercise of responsible decision making, but the office of President overshadows that of General Secretary. 211The President is not a ceremonial figurehead. By clause 21, he is recognised as the executive head of the BIC and as the chief office bearer of the Executive Council. He is called upon to preside over all meetings of the association. He is bound to endeavour to see that other members of the Executive Council carry out their duties diligently. He is required to represent the association, or to appointment a nominee to represent it, in all external affairs. He is empowered, subject to review by the Executive Council, to make emergency decisions which would normally be made by the Executive Council, notwithstanding any rule contained "in the constitution". 212Clause 23 defines the powers, duties and functions of the General Secretary at a lower, more administrative level of abstraction. The General Secretary is called upon to "coordinate" the activities of the members of the Executive Council; to "keep the President informed"; to "arrange" meetings and functions of the association "with the concurrence of the President"; to attend to correspondence; to keep minutes of meetings; and to ensure that minutes of meetings are signed by a chairperson. 213Viewed in that light, clauses 23(e), 32(b) and 35(a) cannot be construed as conferring upon the General Secretary an exclusive power to call meetings of the Executive Council or General Meetings. The first two of those provisions qualify the General Secretary's role by requiring him or her to act "with the concurrence of the President". The third is not, at least directly, expressed in the same terms. However, the General Secretary's role is there defined by reference to a decision of the Executive Council, with the necessary implication that his or her role is to implement such a decision rather than to act independently. 214The first plaintiff made a fundamental miscalculation in his assumption that the General Secretary, and the General Secretary alone, is entitled to call meetings of the Executive Council. 215The first defendant, as President, was entitled to direct the first plaintiff, as General Secretary, to convene a meeting of the Executive Council and to expect that that direction would be acted upon. 216If such a direction is not acted upon, the President can convene a meeting on his or her own authority. Authority to take such a step is found in clauses 21(a)-(c), without any necessity to make an "emergency decision" under clause 21(e) or to "seize power" from the General Secretary. Nothing so dramatic is required. The President is the executive head of the BIC. His office is not merely ceremonial. A General Secretary cannot, by non-performance of his or her duty in relation to the calling of meetings, disentitle a President from the right to preside over a meeting of the Executive Council or a General Meeting of the BIC. 217As events unfolded, the first plaintiff made three other miscalculations in addition to his misreading of the constitution. The first was his refusal or failure to attend meetings of the Executive Council held under the auspices of the first defendant following the meeting of 24 April 2011; that provided his opponents with an opportunity to declare his office vacant, in purported reliance upon clause 29(g) of the constitution, unconstrained by the procedural requirements of clause 31 (governing removal of a member of the Executive Council) or the requirements of clauses 16-17 (dealing with disciplinary action against a member of the association). 218The second miscalculation was the decision to boycott the general meeting held on 11 June 2011 (at which members of the association were invited to ratify action taken against him in the name of the Executive Council) and the general meeting of 17 June 2012, at which an apparently orderly election of a new Executive Council was conducted. 219The first plaintiff's third miscalculation was to conduct meetings of a "shadow" Executive Council in parallel with the meetings of the Executive Council convened under his leadership. 220Each of the subsequent miscalculations was a product of the first, a misreading of the constitution. However, the subsequent miscalculations were not necessarily, in themselves, fatal to the first plaintiff's cause, if only because, in my opinion, the first defendant and his supporters also misread the constitution in some respects. 221On the defendants' side of the record, the first defendant and his supporters erred in a number of respects. First, it was not open to the President, acting unilaterally or the Executive Council acting at his invitation, to displace the first defendant as General Secretary between 24 April 2011 and 9 May 2011 merely through an exercise of "emergency" powers. To permit that to occur would be to subvert the procedural safeguards for which clauses 16-17 and 31 of the constitution provide. 222Secondly, clause 29(g) could not operate against the first plaintiff unless his absence from three consecutive meetings of the Executive Council was "subsequently accepted" by the Executive Council. The purported declaration of a casual vacancy was, at least, premature in being made at, and not after, the third of the meetings from which the first plaintiff was absent. 223Thirdly, if clause 29(g) operated at all, it operated to displace the first plaintiff from membership of the Executive Council, not merely from the office of General Secretary. The first defendant's contrary advice to the first plaintiff, and the Executive Council, was incorrect. 224Fourthly, any resolution passed at the general meeting of 11 June 2011 designed, in effect, to ratify steps taken against the first plaintiff at or following the meeting of 24 April 2011 could not be effective against the first plaintiff as a means of circumventing the procedural safeguards for which clauses 16-17 and 31 provide. 225If and to the extent that casual vacancies occurred in the membership of the Executive Council it was authorised by clause 19(d) of the constitution, to co-opt a member of the association to fill the vacancy. I assume, with no great confidence, that that is what was done in the appointment of an Assistant General Secretary (at the meeting of 24 April 2011) who was able, "in the absence of the General Secretary", to "act as the General Secretary" in purported reliance on clause 24 of the constitution. 226The word "absence" might, in some circumstances, be sufficiently broad to authorise the Assistant General Secretary to act as the General Secretary notwithstanding the physical presence of the holder of the office of General Secretary. However, it is not necessary for me to express any concluded view about that question and, accordingly, I do not do so. It is sufficient, here, to make a finding that, having declined to act at the invitation or direction of the first defendant as President, the first plaintiff might be regarded as having avoided the company of the President (and, so, having absented himself from performance of his duties) when required to take steps required of him as General Secretary. More importantly, on my reading of clause 21 of the Constitution, the President is empowered, as the executive head of the BIC, to ensure that ordinary administrative tasks necessary to convene or conduct meetings of the Executive Council, or General Meetings of the BIC, are performed.

THE REMEDIAL OPERATION OF THE ASSOCIATIONS INCORPORATION LEGISLATION 227In the present proceedings there is an abundance of procedural irregularity to ground the operation of s 1322 of the Corporations Act, as modified by the Associations Incorporation Act and associated regulations. In that context, an the important consideration is that the person who, between 24 April 2011 and 17 June 2012, purported to act as Assistant General Secretary of the BIC did so under the direction of the President, and a colour of right, in circumstances in which the first plaintiff had refused to work with the President, and a substantial number of the members of the association were content to entrust performance of the duties of General Secretary to him. 228In my opinion, the conduct of the affairs of the BIC since, at least, 24 April 2011 has been attended by irregularities which might have called for a declaration of invalidity. The displacement of the first plaintiff as General Secretary on 24 April 2011, the declaration of his office as General Secretary vacant, and the purported ratification of both events by a general meeting on 11 June 2011 fall into that category. So too might subsequent events consequential upon them. 229Underpinning all such events, and affecting them all, was the refusal of the first plaintiff to call meetings of the Executive Council and General Meetings as and when, and only as and when, required or agreed by the first defendant in his capacity as President of the BIC. 230Beck v Law Furniture Consolidated (Aust) Pty Limited [2012] NSWCA 76; 87 ACSR 672 at [222]-[225], [232]-[233] and [236]-[240] established (by a majority comprising Young JA and Sackville AJA) that, in the context of a corporation registered under the Corporations Act 2001 (Cth), it is not every invalid action within a corporation that may be validated under s 1322. For the section to operate, the impugned action must be able to be achieved under the Act or the constitution of the particular corporation. If this is the case, then, where the action is performed in a different and invalid way, it may be validated under the section. However, if it is not possible to obtain the result under the Act or constitution, the section has no scope for operation. 231The majority's reasoning turned, in part, on the availability under the Corporations Act of mechanisms other than s 1322 for dealing with a corporation that has become paralysed by a deadlock between decision makers. 232In these proceedings, s 1322 must be considered, not simply in the context of the Corporations Act, but in the context of the Associations Incorporation Act 2009, bearing in mind that the latter Act incorporates the section by reference. The mechanisms available for dealing with paralysis in the administration of a corporation are not available, in identical respects, to an association in a state of administrative paralysis. Although there are, to some extent, parallel provisions, the text of the legislation is not identical and the purpose of the two legislative schemes differs. Were that not so, the necessity for, or utility of, the associations incorporation legislation might be called into question at a fundamental level. 233In the context of the greater informality that attends the administration of associations registered under the Associations Incorporation Act 2009, there is much to be said for attributing to the construction of s 1322 (as adopted by the Associations Incorporation Act and the Associations Incorporation Regulation 2010) the more liberal construction attributed to the section by Campbell JA, in dissent, in Beck v LW Furniture Consolidated (Aust) Pty Limited at [137]-[141]. 234Nevertheless, I proceed, in these proceedings, on the assumption that I am bound to apply the reasoning of the majority in Beck's Case, notwithstanding the different legislative scheme in which s 1322 falls to be considered in the context of the Associations Incorporation Act. It might be more important in some future case than it is in this, to bear in mind the possibility that s 1322 may have a broader field of operation in relation to associations than it has in relation to corporations. 235In any event, the parties in these proceedings are correct in their acceptance that, if the displacement of the first plaintiff as General Secretary of the BIC between 24 April 2011 and 11 June 2011 was (independently of s 1322) invalid, the remedial provisions of s 1322 apply. The course of events associated with the first plaintiff's displacement led, more or less directly, to the disputed election for a new Executive Council on 17 June 2012. 236The first plaintiff could have been removed from office by invocation of procedures under clauses 16-17 or 31 of the constitution. Contrary to an assumption apparently made by the first defendant, it was also open to him, as President, to convene meetings of the Executive Council, or a General Meeting of the members of the BIC, on his own authority without any "seizure of power" from the General Secretary. Clause 29(g) could have been deployed against the first plaintiff had the Executive Council not acted prematurely by making a declaration of a casual vacancy at the third meeting from which the first plaintiff was absent. 237The first plaintiff's displacement as General Secretary could have been achieved, validly, under the constitution in a number of ways. As it happened, though, corners were cut. Subject to the operation of s 1322, the first plaintiff's displacement as General Secretary was invalid. 238The question, then, is whether any (and, if so, what) remedial orders can, or should, be made. That question focuses attention on whether the displacement of the first plaintiff as General Secretary has caused, or may cause, substantial injustice that cannot be remedied by any order of the Court. 239Upon an exercise of jurisdiction under s 1322 in these proceedings, particular regard must be had to the provisions of ss 1322(2), (4)(a), (6)(a) and (6)(c). 240Given the course of events between 24 April 2011 and 17 June 2012, the central focus for attention is on the question whether the purported election of a new Executive Council on 17 June 2012 (at a meeting convened by the Executive Council, led by the first defendant, over objection by the first plaintiff) should be treated as validated by the operation of s 1322(2), or validated by an order made under s 1322(4)(a) with due regard to the constraints of ss 1322(6)(a) and (c). 241In formulating the question in this form, the factors I take into account include the following. 242First, there has been continuity in the conduct of the affairs of the BIC under the Executive Council led by the first defendant since 24 April 2011, notwithstanding the activities of a shadow Executive Council under the leadership of the first plaintiff. 243Secondly, the parties who actively participated in the final hearing of the proceedings were agreed that the affairs of the BIC could not be regularised simply by a reinstatement of the Executive Council as constituted immediately before 24 April 2011. The parties are agreed that the practical alternatives for the Court's consideration are either (as the first plaintiff proposes) orders for the conduct of a fresh election of the Executive Council or (as proposed by the first and third defendants) an order confirming the outcome of the election held on 17 June 2012. 244Thirdly, during the course of the interlocutory stages of these proceedings consideration was given by all parties, and the Court, to identification of members of the BIC entitled to vote in an election for the Executive Council, and to the conditions necessary for the conduct of a fair election. 245Fourthly, the election conducted on 17 June 2012 was conducted by a professional person (an accountant) conscious of a need to act independently of the vying factions. 246Fifthly, formulation of the question in terms that require consideration of whether the membership of the BIC has had an adequate opportunity, for the present, to express its voice about the people who are to govern its day to day operations pays homage to the importance of the general membership of the association in the conduct of the association's affairs. 247In my opinion, any irregularity in the procedures leading to the returning officer's official announcement, and formal declaration, of the results of the election for the purpose of clause 20(g) of the constitution of the BIC has not caused, and is unlikely to cause, any injustice that cannot be remedied by an order of the Court. I am not prepared to make a declaration that the election of the new Executive Council on 17 June 2012 was invalid. 248Subject to consideration of the factors I am required by s 1322(6) to address, I propose to make an order declaring that the displacement of the first plaintiff as General Secretary of the BIC on or about 24 April 2011 and the election for the Executive Council of the association conducted on 17 June 2012 are not invalid by reason of any contravention of the Associations Incorporation Act or any provision of the constitution of the BIC. 249I am satisfied that the election conducted on 17 June 2012, and any irregularities attending that election or steps preliminary to its conduct, were essentially of a "procedural nature" within the meaning of s 1322(6)(a)(i). 250I am satisfied that all members of the BIC (including the first plaintiff and the first and third defendants) concerned with management of the affairs of the association and the returning officer who conducted the election of 17 June 2012, acted "honestly" within the meaning of s 1322(6)(a)(ii). 251The returning officer was a professional person conscious of her independent, professional obligations. Each of the parties to these proceedings appears, to me, to have endeavoured to advance the work of the BIC as best he could within the constraints operating upon him. The fact that the parties held divergent views, and held misconceived opinions about the proper construction and operation of the BIC's constitution, does not detract from a finding that each person, according to his lights, acted honestly within the meaning of s 1322. 252I am satisfied, for the purpose of s 1322(6)(a)(iii), that it is just and equitable that an order be made under s 1322(4)(a): first, for confirmation of the outcome of the election for the Executive Council held on 17 June 2012; and, secondly, in reinforcement of that outcome, for confirmation of the displacement of the first plaintiff as General Secretary. All the irregularities attending the conduct of the affairs of the Executive Council, and the BIC, between 24 April 2011 and 17 June 2012 inclusive have, at their heart, disagreements as to the respective powers of the General Secretary and the President under the constitution. The refusal or failure of the first plaintiff to acknowledge, both the limits on the authority of the General Secretary, and the authority of the President, were foundational to the paralysis affecting the BIC. 253The first plaintiff deliberately absented himself from the 2011 meetings that displaced him from the office of General Secretary, and he made a conscious decision to boycott the election held on 17 June 2012. He is, himself, in that sense, the author of any misfortune he may now, or in the future, believe that he has suffered. The election was held in circumstances in which it was considered highly desirable, if not imperative, that an election be held to satisfy the requirements of the Associations Incorporation Act. It was held with the benefit of an independent referee's report on the membership of the BIC, and with the services of a professional person acting as returning officer. 254The election resulted in a clear outcome. If the affairs of the BIC are to be put on a firm foundation, going forward, there is need of certainty, stability and continuity in its management. That can be achieved by confirmation of the outcome of the election on 17 June 2012. It might not be achieved, or readily achieved, otherwise. 255I am not satisfied that an order for the conduct of a fresh election for the Executive Council, in the near future, would do anything other than to provide an occasion for agitation of factional grievances and the prolongation of bitter rivalries. 256A positive outcome for the first plaintiff and his supporters in the determination of these proceedings is that there was, during the course of the final hearing of the proceedings, confirmation that all individual parties to the proceedings are presently members of the BIC. These proceedings have been determined on the basis that there is no disciplinary action pending against any party to the proceedings, the first plaintiff included. One can but hope that, following the determination of the proceedings, the individuals who have contested them will find a way of working together as continuing members of their community. 257I am satisfied, for the purpose of s 1322(6)(c), that no substantial injustice has been caused, or is likely to be caused, to any person. The first plaintiff and his supporters had an opportunity to participate in the election of 17 June 2012 but decided, for their own reasons, not to do so. They have now, as they have had at all material times, an opportunity to continue their participation in the affairs of the BIC. It is in the best interests of the BIC as a whole that a line be drawn between the past and the present, and that its management be conducted in an orderly manner hereafter. 258In considering each of the statutory elements of s 1322 that requires a consideration of the justice or equity of the case, I have taken into account my determination that the proper order to make (under the Civil Procedure Act 2005 (NSW), s 98) as to the costs of the proceedings is an order that all costs be paid, or borne, by the BIC. 259Each of the individual parties has had mixed success. On the one hand, the first plaintiff has established that his displacement as General Secretary of the BIC was irregular. On the other hand, the first defendant has established that he and his supporters had cause for objection to the activities of the first plaintiff as General Secretary. 260All parties were driven by misconceptions as to their rights and obligations based on their respective misreadings of the BIC constitution. As the parties active in the proceedings were representative of the general membership of the BIC, and its divisions, it is, in my opinion, appropriate that the costs of the proceedings be laid at the feet of the association and not be borne by any individual.

CONSEQUENTIAL RELIEF 261In the disposition of proceedings before it, the Court is empowered, and required, to give such judgment or to make such orders as the nature of the case requires: Civil Procedure Act 2005 (NSW), s 90(1); Uniform Civil Procedure Rules 2005 (NSW), rule 36.1. 262By his amended summons, the first plaintiff sought a declaration to the effect that his displacement as General Secretary of the BIC was invalid and consequential orders. At the final hearing of the proceedings, the relief he sought was refined by reference, inter alia, to s 1322. 263Having determined that the first plaintiff's refined claim for relief should not be granted, I propose to make declarations and orders to the opposite effect of those sought by him. The nature of the case requires that to be done. The orders that I propose to make fall within the ambit of the questions litigated in the proceedings. Although no cross claim has been filed, none is necessary. The Court not uncommonly makes "reverse declarations" and grants consequential relief on a summons for declaratory and other relief: P W Young, Declaratory Orders (Butterworths, Sydney, 2nd ed, 1984), paragraph [606]. 264As foreshadowed, I propose to make an order, referable to ss 1322(2) and (4)(a), declaring that the displacement of the first plaintiff as General Secretary on or about 24 April 2011 and the election of a new Executive Council on 17 June 2012 are not invalid by reason of any contravention of the Associations Incorporation Act or any provision of the BIC's constitution. 265The final orders to be made in disposition of the proceedings should also include three other categories of order. 266The first is a declaration (in terms authorised by the Court's general power, under s 75 of the Supreme Court Act 1970 (NSW), to make declarations) to the effect that, subject to the provisions of the Associations Incorporation Act 2009 and the constitution of the BIC, the Executive Council of the BIC is presently constituted by the persons elected to the Council on 17 June 2012. They are identified by name in paragraph 179 above. 267The second form of final order is an injunction to restrain the first plaintiff (in his personal, not in his representative capacity) from acting, or holding himself out as entitled to act, as General Secretary of the BIC by reason of any election or appointment predating the election of 17 June 2012. There is, and can only be, one General Secretary and one Executive Council. The first plaintiff is not entitled to pass himself off as authorised to make decisions as General Secretary, or as a member of the Executive Council, or, in effect, as the BIC itself. The Court is empowered by s 66 of the Supreme Court Act 1970 (NSW), as an aid to equity's auxiliary jurisdiction, to restrain any apprehended injury to the BIC that might attend such conduct. The grant of an injunction against the first plaintiff, as a leader in the community of which the BIC is an integral part, should be sufficient to disband any ongoing shadow Executive Council. The Court's confirmation of the outcome of the election held on 17 June 2012 should be enough. An injunction addressed to the first plaintiff makes the point beyond debate. 268The third form of final order required is one that dissolves the interlocutory injunctions granted on 15 December 2011 and not dissolved, when other interlocutory orders were dissolved, on 27 April 2012. The orders not dissolved before now relate to retention of the second defendant as a signatory on the two bank accounts of the BIC. Hereafter, the control and management of the affairs of the BIC should be left to the Executive Council (elected on 17 June 2012) subject only to the requirements of the Associations Incorporation legislation and the BIC's own constitution.

CONCLUSION 269Upon the proper construction of the constitution of the BIC, the powers of the association's President overshadow those of the General Secretary. The President is the executive head of the association and, as such, entitled, on his own authority, to ensure that ordinary administrative tasks necessary to convene or conduct meetings of the Executive Council or a General Meeting are performed. A General Secretary cannot, by non- performance of his or her duties in relation to the calling of meetings, disentitle a President from the right to preside over a meeting of the council or a general meeting of the association's membership. 270The role of the General Secretary is defined by the constitution at a lower, more administrative level of abstraction than that of the President. Nevertheless, the President's role is not limited merely to ceremonial duties. He is entitled to rely upon the General Secretary in the performance of ordinary administrative tasks, and ordinarily he should do so; but, subject to decisions of the Executive Council and general meetings of the BIC, he is able himself (without resort to "emergency" powers) to take steps necessary to ensure that meetings are convened and conducted in an orderly fashion. 271The first defendant, as President, was entitled to direct the first plaintiff, as General Secretary, to convene a meeting of the Executive Council and to expect that that direction would be acted upon. If such a direction is not acted upon, then the President can convene a meeting on his or her own authority. 272A General Secretary has no authority, independently of the President, to convene a meeting of the Executive Council; he or she must act with the concurrence of the President in convening a meeting of the Executive Council. Nor can a general Secretary, on his or her own authority, convene a General Meeting of the association; his or her authority to call such a meeting depends upon a decision of the Executive Council or, as the nature of the case may require, the President. 273In acting upon a contrary interpretation of the constitution, the first plaintiff acted in error and gave other members of the BIC grounds to move against him. 274For his part, the first defendant acted in error in assuming that, under the constitution, it was open to him, and necessary for him, to "seize power" from the first plaintiff as General Secretary. 275If action was to be taken against the first plaintiff under the constitution it could, and should, have been taken under clauses 16-17 (which govern disciplinary action) or clause 31 (which authorises removal of a member of the Executive Council via a general meeting of the association). 276The first plaintiff's non-attendance at meetings of the Executive Council after 24 April 2011 opened the way for his office as a member of the Executive Council to be "declared" vacant by the Executive Committee under clause 29(g). However, in purporting to make such a "declaration" when it did, the Executive Council acted prematurely. It purported to make its "declaration" at the third of the three meetings from which the first plaintiff absented himself. It was required by clause 29(g) to wait until a subsequent occasion. 277A general meeting of the association could not "ratify" the Executive Council's ineffective "declaration" of a casual vacancy because it had no entitlement to do so. Nor could it, by such a manoeuvre, circumvent the procedural fairness safeguards contained in clauses 16-17 and 31 of the constitution. 278Accepting that all participants in these controversial, constitutional disputes have acted honestly and according to their own lights, the Court needs to make orders designed to ensure that the affairs of the association can be conducted in an orderly manner, and in the best interests of the general membership of the association, so as to assist the association to pursue the objects for which it was established. 279It is in the best interests of the BIC as a whole that a line be drawn between the past and the present, and that the association's management be conducted in an orderly manner hereafter. The BIC needs certainty, stability and continuity in its management. That need can be met by confirmation of the outcome of the election for a new Executive Council conducted on 17 June 2012. It might not be achieved, or readily achieved, otherwise. The Court is not satisfied that an order for the conduct of a fresh election for the Council, in the near future, would do anything other than to provide an occasion for agitation of factional grievances and the prolongation of bitter rivalries. 280Accordingly, declarations and orders are to be made to confirm the results of the election conducted on 17 June 2012 and to ensure that no "shadow Executive Council" has semblance of authority to rival it. 281Having regard to the whole of the circumstances of the case, the proper order is that the costs of all parties to these proceedings be paid or borne by the BIC rather than any individual.

ORDERS 282I make the following orders: (a) DECLARE that the displacement of the first plaintiff as General Secretary of the fifth defendant on or about 24 April 2011 and the election, or purported election, of members of the fifth defendant to the Executive Council of the fifth defendant on 17 June 2012 are not invalid by reason of any contravention of the Associations Incorporation Act 2009 (NSW) or any provision of the constitution of the association. (b) DECLARE that, subject to the provisions of the Associations Incorporation Act 2009 and the constitution of the fifth defendant, the Executive Council of the fifth defendant is constituted by the persons declared to have been elected to the Council on 17 June 2012. (c) ORDER that the first plaintiff, by himself his servants and agents, be restrained from acting, or holding himself out as entitled to act, as the General Secretary of the fifth defendant by reason of any election or appointment, or any purported election or appointment, that may have occurred before 17 June 2012. (d) ORDER that the costs of the proceedings (including the costs of all parties other than the fifth defendant), assessed on the ordinary basis, be paid by the fifth defendant. (e) ORDER that the interlocutory injunctions numbered 1, 2 and 8 made on 15 December 2011 be discharged. (f) The usual Order for the return of exhibits, subject to institution of any appeal from these Orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2012