Gouros & Ors v Order of AHEPA NSW Incorporated [2023] NSWSC 1281 | Case summary

Supreme Court of NSW|2023-10-03|Before: Black J

Solicitors: Levitt Robinson (Plaintiffs) Tzovaros Legal (First and Third to Tenth Defendants) File Number(s): 2021/300669

Nature of the application and background

By a Third Further Amended Summons ("3FAS") and Second Further Amended Statement of Claim ("2FASC") each dated 26 September 2023, the Plaintiffs ("Gouros parties") seek a range of relief, which is substantially narrowed from that which they originally sought as a result of the resolution of issues between the parties. These proceedings were commenced by the Gouros parties when the First Defendant, Order of AHEPA NSW Incorporated ("AHEPA NSW"), proposed to enter into an agreement for licence and lease dated 6 May 2021 with Bayside Council in respect of the Bexley Bowling Club. That proposal was supported by a majority of the persons claiming to be members of AHEPA NSW and opposed by other members including the Gouros parties, and the entry into that arrangement was ratified by an apparent majority of members of AHEPA NSW in a special resolution conducted by postal vote in September and October 2021. The validity of that vote was previously challenged by the Gouros parties in these proceedings. That issue has since been displaced by the fact that Bayside Council has terminated the agreement for licence and lease with AHEPA NSW and AHEPA NSW now does not challenge that termination.
The First Defendant, AHEPA NSW was formed in 1993 as an incorporated association under the Associations Incorporation Act 1984 (NSW) ("1984 Act") and has been registered under the Associations Incorporation Act 2009 (NSW) ("2009 Act") since it took effect from 1 July 2010. The Second Defendant, Bayside Council, was removed as a party to the proceedings since no relief is sought against it in the Gouros parties' narrower case. The Third to Tenth Defendants ("Eight Incorporations") are several incorporated associations, members of which claim to be members of AHEPA NSW. I will use the term Defendants to refer to the remaining Defendants, now excluding Bayside Council.
There have been disputes between a faction of AHEPA NSW that has the majority on its Committee of Management on the one hand, and the Gouros parties and persons aligned with them on the other, concerning AHEPA NSW's management and direction for many years. There have been several previous proceedings in respect of these disputes, and the history of the unincorporated association previously known as the "Australian Hellenic Educational Progressive Association", and subsequently as "The Order of AHEPA" or "AHEPA Australia" and of these disputes has been set out in previous decisions of this Court at first instance and on appeal to which I refer below. I also address that history and the significance of those decisions to the matters which arise in these proceedings below.
It is common ground that the Gouros parties, or most of them, are members of AHEPA NSW and members of five chapters of AHEPA NSW (2FASC [A1]-[A7], Defence [1]-[7]). The Eight Incorporations, unless their members are excluded from AHEPA NSW as sought by the Gouros parties, comprise a significant number of the existing members of AHEPA NSW, by reference to the membership lists of the Eight Incorporations (Ex J1, 8611- 8632) comprising 429 members and the total membership list of AHEPA NSW (Ex J1, 6860-6874) comprising 499 members. I recognise that the Gouros parties indicate that they take issue with those membership numbers. It is at least clear that the relief sought by the Gouros parties would bring about a change of control of AHEPA NSW in favour of the members of the unincorporated chapters associated with the Gouros Parties, by excluding the many members of the Eight Incorporations who are currently recognised as members of AHEPA NSW, unless they are prepared to and permitted to join the five chapters of AHEPA NSW associated with the Gouros parties.

Chronology of events

I now set out a chronology of events, drawing partly on the parties' chronologies and partly on the documents tendered, largely in a joint court book (Ex J1), as limited to the narrower issues now raised. It is apparent that the positions expressed in many of the later documents reflect the well-entrenched differences of views between the parties and their radically different views of history and the merits of their respective positions. The length of that chronology highlights both the historical reach of the parties' disputes and the extent to which they overlap with events addressed in earlier proceedings. The detail of these events is of limited relevance to the findings that I reach below but may be relevant to an appellate court if it takes a different view to that which I have taken.
The American Hellenic Educational Progressive Association was founded in 1922 and appears to have been referred to as the "Order of AHEPA" (Ex J1, 8545-8557). In August 1934, the Australian Hellenic Educational Progressive Association was established (Ex J1, 1023-1033). In May 1935, a general meeting in Scone, New South Wales resolved that it would adopt the by-laws of a similar American association "with the necessary alterations to comply with the law of this land" (Ex J1, 1034-1035). It appears that an "Order of AHEPA Queensland" was formed in August 1936 and an "Order of AHEPA Victoria" was formed in 1942 (Ex J1, 1269-1270). There are disputes, which I need not resolve for the reasons noted below, as to whether these organisations had continued existence and as to the extent of independence of the state-based bodies from a national body. It appears that the AHEPA "Mother Lodge" was relocated from Scone to Sydney in 1953 (Ex J1, 1054-1055).
Representatives of chapters of AHEPA from Queensland, Victoria and New South Wales attended a convention in Queensland in 1954 (Ex J1, 1063, 1142). There is some evidence that AHEPA's state organisations were then understood as independent entities (Ex J1, 1064). In late 1954, the First Pan-Australian Convention of the Order of AHEPA established a Supreme or National Lodge composed of elected representatives of AHEPA NSW, AHEPA Queensland and AHEPA Victoria (Ex J1, 1065ff, 1102). The Gouros parties characterise these events as the unification of the Order throughout Australia and AHEPA NSW contests that characterisation. A meeting of the Grand Lodge in New South Wales in October 1954 then recorded that "[a]s a result of the 1954 AHEPA Convention at Brisbane it was resolved on the 7th September, 1954 by the Supreme Lodge that a GRAND LODGE be created in each of the States…" (Ex J1, 1101).
National conventions subsequently took place between 1954 and 2015 and there is also a dispute as to the extent to which the National Lodge or any national body exercised control over state bodies or their assets, which I do not need to resolve for the reasons noted below.
In the Constitution and Regulations of AHEPA Australia dated 1968 (Ex J1, 1139-1177), Clause 8, titled "History of the Order, recited (Ex J1,1142) that: "… [t]he unification of the Order throughout Australia was achieved in 1954 when the three states came together at the First National Convention forming the first Supreme Lodge of Australasia, and the three Grand Lodges of Queensland, N.S.W and Victoria. From here the Order grew on a National basis and the National Conventions are held annually."
The Constitution and Regulations of AHEPA Australia as at 1978 (Ex J1, 1243) again noted (Ex J1, 1269), in the part of the Regulations referring to the "History of the Order", that: "… [t]he unification of the Order throughout Australia was effected in 1954 when the three States met at the First National Convention forming the first Supreme Lodge of Australasia and the 3 Grand Lodges of Queensland, New South Wales and Victoria." That part also referred to several chapters of the association. Clause 64 recorded that, notwithstanding anything contained in the Constitution, the Order of AHEPA in the State of New South Wales was to be governed by the rules then set out in Part XIV which provided, inter alia, that the officers of the Grand Lodge were to constitute the Management Committee of the Order of AHEPA in the State of New South Wales (Ex J1, 1263). It is common ground that a District Lodge was also formed in New South Wales in 1978, involving all-female chapters of the "Daughters of Penelope" (Ex J1, 1270).
The Constitution and Regulations of AHEPA Australia as at 1990 (Ex J1, 1398) again stated (Ex J1, 1423) in the Regulations that "…the unification of the Order was achieved throughout Australia in 1954. In 1954, the three States where Ahepa was established came together to form the Supreme Lodge of Australia and conducted the first National Convention in Sydney. The three States were formed into Grand Lodges being the Grand Lodge of Queensland, NSW and Victoria. From here, the Order grew on a National basis, with the National Convention being held annually." They also recorded that "[t]he District Lodge of the Daughters of Penelope, NSW was first formed in Sydney in June, 1978" (Ex J1, 1424) and set out the dates on which chapters and lodges had been formed, inter alia, in New South Wales (Ex J1, 1423-1425).
In January 1993, the Order of AHEPA NSW was incorporated and adopted a new constitution in the form titled "Rules of Order of AHEPA NSW Inc" (Ex J1, 1866, 1891). AHEPA NSW contends that, on its incorporation, the chapters of the previously unincorporated association remained operational as distinct entities which became chapters of the newly incorporated association, the Grand Lodge remained operational in a largely ceremonial role and the District Lodge remained operational until 2015.
A Notice of Meeting of the "First Committee Meeting of Order of AHEPA New South Wales Inc" convened for 21 April 1993 (Ex J1, 1894) enclosed rules which provided (Ex J1, 1906-1907), in cl 14(3), that: "[t]he Committee shall be elected from the following duly elected office bearers of the unincorporated association, in accordance with 14(4) hereunder: (a) Grand President; (b) District President; (c) immediate past grant president; and (d) nominated member of the Grand Lodge or District Lodge (as the case may be) each unit of the unincorporated association, each member to be nominated by way of each unit on election process." Notes on the Notice of Meeting that accompanied the rules (Ex J1, 1894) were consistent with that approach, stating that: "[p]ursuant to our constitution: 1. The Grand President of the Order of AHEPA NSW, Brother George Kryiakozakos is automatically appointed as the President of [AHEPA NSW] 2. The District Lodge President of the Daughters of Penelope, Maria Fardouly is automatically appointed as Vice-President of [AHEPA NSW]."
It appears that, from 1993 until 2015, after the incorporation of AHEPA NSW, chapters and lodges based in New South Wales continued to attend state conventions and national conventions.
The constitution of AHEPA Australia was again amended in 1998 (Ex J1, 2609). Part 1 of the Regulations dealing with the history of the Order again recorded (Ex J1, 2640) that: "…The unification of the Order was achieved throughout Australasia in 1954. In 1954, the three States where AHEPA was established came together to form the Supreme Lodge of Australasia and conducted the First National Convention in Sydney. The three States were formed into Grand Lodges being the Grand Lodge of Queensland, NSW and Victoria. From here, the Order grew on a National basis with the National Convention being held annually." The Regulations again listed the dates that chapters and lodges of AHEPA Australia were formed (Ex J1, 2640-2643). The constitution of AHEPA Australia was again amended in 2010 (Ex J1, 4106), when references to the "Grand Lodge" were replaced by the term "State Lodge."
From early 2015, a dispute arose as to attempt to bring Chapter Antigone 8 under the Grand Lodge of NSW and AHEPA NSW and some other state bodies asserted their independence from AHEPA Australia. A meeting of the Grand Lodge of NSW held on 19 March 2015 (Ex J1, 4614) recorded that (Ex J1, 4623) several resolutions were passed, including: "[t]hat the Grand Lodge not pay outstanding or pending dues to the 'National Lodge' until further resolution of the Grand Lodge. … That the Grand Lodge instruct and direct AHEPA NSW Chapters not to pay outstanding or pending dues to the 'National Lodge' until otherwise directed by the Grand Lodge. … That the Grand Lodge not accept or recognise the status of any 'National Lodge' office held by members of the 'National Lodge' who are also members of the Grand Lodge. … That the Grand Lodge of NSW immediately suspend its membership of the 'National Lodge' and not accept any officers of the National Lodge from attending any meeting of the Grand Lodge of NSW in their capacity as Officers of the 'National Lodge'. … That the Grand Lodge of NSW immediately direct all Chapters belonging to the Grand Lodge or seeking to become members of the Grand Lodge of NSW not to accept any Officers of the 'National Lodge' from attending any meeting of the Chapter in their capacity as Officers of the 'National Lodge'."
On 9 April 2015, a meeting of the Committee of Management of AHEPA NSW (Ex J1, 4648) passed a resolution that the District Lodge of New South Wales is dissolved from 14 February 2015 because two chapters were needed for a District Lodge and, with Chapter Antigone joining the Grand Lodge of NSW, the District Lodge had ceased to exist. The National Lodge of AHEPA Australia and Grand Lodge of NSW and their solicitors subsequently exchanged correspondence (for example, Ex J1, 4662, 4663, 4664, 4708) asserting their respective positions as to these developments and, on 29 April 2015, a meeting of the Grand Lodge of NSW (Ex J1, 4667) passed resolutions: "[t]hat the Grand Lodge of New South Wales no longer be a member of the 'National Lodge' or recognise the 'National Lodge' as having any authority over the Grand Lodge of NSW or any of the Chapters of the Order of AHEPA NSW." That the Grand Lodge of New South Wales immediately cease all ties with any other body of the Order of AHEPA which is associated with the 'National Lodge'."
On 18 November 2015, a special general meeting of AHEPA NSW purportedly passed special resolutions to convert AHEPA NSW from an incorporated association under the 2009 Act to a company limited by guarantee under the Corporations Act 2001 (Cth) ("Corporations Act") and to adopt an amended constitution (Ex J1, 5019-5020) and several unincorporated chapters of AHEPA NSW were subsequently incorporated under the 2009 Act.
The issues now raised in these proceedings have been addressed, in various iterations, in proceedings since late 2016 involving overlapping parties. In December 2016, AHEPA NSW brought proceedings ("AHEPA 2016") for declaratory relief to ratify resolutions passed (or purportedly passed) in 2005, 2007, 2010 and 2015 relating to its rules (Ex J1, 5319). Ms Melas and Ms Alexandrou (who is also the Sixth Plaintiff in these proceedings) opposed that relief and I made representative orders in those proceedings.
On 10 July 2017, AHEPA Australia Limited was registered as a company limited by guarantee (Ex J1, 8644).
The parties ultimately agreed consent orders that should be made in AHEPA 2016 and, by my judgment delivered on 21 March 2018 (Re Order of AHEPA NSW Inc [2018] NSWSC 458), I addressed the question whether orders should be made under s 1322 of the Corporations Act (as applied by the 2009 Act and the Associations Incorporation Regulations 2016 (NSW)) in respect of steps taken by AHEPA NSW between 23 November 2005 and 22 January 2010, including the disputed resolutions. I made the agreed orders and also noted an agreement between AHEPA NSW on the one hand, and Ms Melas and Ms Alexandrou on the other, broadly to the effect that, if the Commissioner for Fair Trading registered the resolutions passed in 2005 and/or 2010 amending cl 3 of AHEPA NSW's constitution, then: "[t]he persons who are members of [AHEPA NSW] in the financial year in which the New SGM is held and who are also entitled to vote at the New SGM consist of all persons who as at the 30 June date immediately before the holding of the New SGM, were financial members of a Chapter listed in Schedule 1 of these orders, such membership to be proven by each Chapter submitting to [AHEPA NSW] [specified information]".
Schedule 1 to those orders referred to the relevant chapters ("13 Chapters") by name, generally by the name of the corresponding former unincorporated association, which did not precisely reflect the names of the Eight Incorporations or refer to their incorporated status. I am comfortably satisfied that, construed in its context, that Schedule referred to the Eight Incorporations, being the incorporated associations, and not to any predecessor or parallel unincorporated bodies, where it is plain from documents exhibited to Mr Antonakos' affidavit dated 24 January 2019 (Ex D2), on which Messrs Lianos and Gouros relied in subsequent proceedings before Rees J ("Lianos 2019"), that the Eight Incorporations were typically referred to, likely as a matter of tradition, by the names of the corresponding former unincorporated associations rather than by the names of the new incorporated entities.
There was a degree of inconsistency in the Gouros parties' oral submissions as to the intent of the parties' agreement that I noted in AHEPA 2016. Mr Pritchard, with whom Mr Klineberg appears for the Gouros parties, initially submitted that that agreement was directed to establishing a mechanism "only for the purposes of voting on the potential change to the constitution" (T154). Such a mechanism would plainly have required that the members of the Eight Incorporations be permitted to vote on that change, where the contrary position would have allowed only the members of the five then existing unincorporated associations associated with the Gouros parties to vote on that change, to the exclusion of the majority of the then members of AHEPA NSW comprising the members of the Eight Incorporations. However, the contrary position is now put by the Gouros parties as the proper construction of that agreement. Mr Pritchard sought to avoid that inconsistency, as best he could, by characterising the two positions in oral submissions as alternative arguments (T157). Mr Pritchard also drew attention to the fact that the rules of several of the Eight Incorporations (Ex P1) appeared to contemplate the possibility that the unincorporated associations which were their predecessors continue to operate in parallel (T157), although it is not necessary to reach a conclusion as to that possibility given the findings that I reach on other grounds below.
On 30 April 2018, AHEPA NSW held a special general meeting (Ex J1, 5582). AHEPA NSW then held a further special general meeting in November 2018 (Ex J1, 5641) which became the focus of further disputes between the parties.
In January 2019, Messrs Lianos (also the Third Plaintiff in these proceedings), Gouros (also the First Plaintiff in these proceedings) and Kypreos brought the Lianos 2019 proceedings, which challenged the validity of the amendment to AHEPA NSW's constitution purportedly made at the special general meeting in November 2018 and also challenged resolutions passed at subsequent meetings concerning the Bexley Bowling Club. Mr Corsaro, with whom Mr Rizk appears for the Defendants, points out that there is a significant overlap between the Plaintiffs in these proceedings and the persons who were previously involved in Lianos 2019 and later in appeals before the Court of Appeal, determined in Lianos v Order of AHEPA NSW Inc [2020] NSWCA 193 ("Lianos CA 1") and Lianos v Order of AHEPA NSW Inc (No 4) [2021] NSWCA 159 ("Lianos CA 4"). As I noted above, Messrs Lianos and Gouros were two of the three plaintiffs in Lianos 2019 and two of the three appellants in the appeals and are the Third and First Plaintiffs respectively in these proceedings. Mr Antonakos (the Fourth Plaintiff in these proceedings) and Ms Alexandrou (the Sixth Plaintiff in these proceedings) swore affidavits which were relied on in support of the Originating Process in Lianos 2019. Only two Plaintiffs in these proceedings, Ms Cretan and Ms Bouris, were not involved in the conduct of Lianos 2019 and the appeals.
The plaintiffs in Lianos 2019 relied, in support of their Originating Process in those proceedings, on the affidavit dated 24 January 2019 of Mr Antonakos and its exhibit, which was then also put before the Court of Appeal in the appeals. Mr Antonakos there referred to notice papers and monthly meeting minutes produced between 1 July 2017 and 30 June 2018 for 12 of the 13 Chapters constituting AHEPA NSW by reference to pages within the exhibit to his affidavit. Importantly, that exhibit referred (Ex D2, 212ff) to documents relating to "Chapter Platon No 4", which were annual general meeting and regular monthly meeting of AHEPA Platon Inc, an incorporated chapter; documents relating to "Chapter Anatole No 7", which referred to AHEPA Anatole Inc, also an incorporated chapter (Ex D2, 243ff); documents relating to "Chapter Diogones No 8", which referred to AHEPA Diogones Inc, again an incorporated chapter (Ex D2, 268ff); documents relating to "Chapter Ippokritis No 21" which referred to a meeting of AHEPA Ippokritis Inc, another incorporated chapter (Ex D2, 382ff); documents relating to "Chapter Chiron No 22", which referred to a meeting of AHEPA Chiron Inc, also an incorporated chapter (Ex D2, 422ff) and to documents relating to "Chapter Alexandros No 25", which referred to a meeting of AHEPA Alexandros Inc, an incorporated chapter (Ex D2, 450ff). Also importantly, these documents frequently referred to each of the incorporated chapters by the title of the former unincorporated chapter, drawing no distinction between the two.
Mr Antonakos also there drew no distinction between the former unincorporated chapters and the corresponding incorporated chapters and raised no suggestion that the incorporated chapters, being the Eight Incorporations, were not properly recognised within the 13 Chapters. That evidence provided a sufficient evidentiary basis for the Court of Appeal in the decision Lianos CA 4 to treat the Eight Incorporations as among the 13 Chapters there recognised as the constituent chapters of AHEPA NSW, and it falsifies the suggestion repeatedly made by the Gouros parties in these proceedings that the Court of Appeal was acting under a "misunderstanding" in doing so. The approach taken by the Court of Appeal in Lianos CA 4 was the same as that taken by Mr Antonakos in that affidavit, which was before the Court of Appeal, and by Messrs Lianos and Gouros in deploying that affidavit in support of the Originating Process in Lianos 2019. I return to the significance of those matters below.
Rees J heard Lianos 2019 on 13-15 March 2019 and her Honour delivered a lengthy judgment on 3 October 2019 (Re Order of AHEPA NSW Inc [2019] NSWSC 1329). Her Honour there outlined the history of AHEPA NSW and noted the scope of constitutional provisions relating to AHEPA Australia adopted in 1990. Her Honour addressed, at length, the authorities as to the position where a previously unincorporated association is incorporated under the 2009 Act and its predecessor; reviewed the circumstances in which AHEPA NSW was established in January 1993; and then reviewed the rules adopted by AHEPA NSW, as subsequently amended in 2003, 2005, 2007 and 2010. Her Honour also referred to the result in AHEPA 2016 and to subsequent developments in the disputes between persons associated with AHEPA NSW in respect of the Bexley Bowling Club proposal.
Her Honour there considered (at [118]ff) the proper construction of rule 3(1) of the Order of AHEPA NSW Incorporated Rules registered with NSW Fair Trading in 2018 ("2018 Rules") relating to membership of AHEPA NSW, which the Gouros parties also seek to have determined in these proceedings. Her Honour noted (at [123]) that the contention there put by Messrs Lianos, Gouros and Kypreos that the reference to "financial membership of the unincorporated association" in rule 3(1)(a) should be interpreted as reference to financial membership of a New South Wales-based chapter of AHEPA Australia Ltd (the incorporated body), as determined by the constitution and by-laws of that organisation, a proposition that differs from the position that they now put in these proceedings, which is directed to AHEPA Australia (the unincorporated association). Her Honour noted (at [127]) the contrary submission put by AHEPA NSW that, with its incorporation in 1993 and the subsequent passage of time, that rule had no useful work to do, so that members would be admitted under rule 3(2) of the 2018 Rules. Her Honour held (at [136]) that: "In its original sense, "unincorporated association" in rule 3(1)(a) was a reference to The Order of AHEPA in the State of New South Wales as it existed pre-incorporation in 1993. As that term had come to be used in rule 3(1)(a), as a result of the loss of the 1993 Rules for a period of time, the development of a practice of assembling the Register of Members each year based upon the lists of financial members submitted by the Chapters to the State Convention, the recasting of the Rules in 2003 to record this practice, and further amendments in 2005 and 2010, "unincorporated association" had come to mean the Chapters. Whether one refers to the Chapters as the Chapters of The Order of AHEPA Australasia or Chapters of AHEPA NSW is an exercise in semantics: the Chapters were unincorporated associations in their own right (or, sometimes, incorporated entities) who were affiliated with other unincorporated (or incorporated) entities in the framework provided by the Constitution of The Order of AHEPA Australasia. But it is those Chapters to which rule 3(1)(a) now referred. Rule 3(1)(b) was essentially a vestigial limb, reminiscent of the incorporation of AHEPA NSW in 1993 when "unincorporated association" meant something else." [emphasis added]
The words in italics are significant, because her Honour there addressed the question, now sought to be reagitated by the Gouros parties in these proceedings, whether the chapters of AHEPA NSW included incorporated entities and found that they did. That finding had the result that members of incorporated chapters including the Eight Incorporations could be members of AHEPA NSW under rule 3(1) of the 2018 Rules. Her Honour also there held (at [179]) that AHEPA NSW's new constitution and by-laws were validly adopted and registered and (at [193]-[194]) that resolutions passed at a subsequent meeting were also valid. The orders made in those proceedings were, as I note below, then the subject of an appeal to the Court of Appeal, which gave rise to several judgments of the Court of Appeal.
On 3 October 2019, a meeting took place of the National Council of AHEPA Australia (Ex J1, 5871) and the Gouros parties contend that AHEPA Australian returned to its former structure of having a Grand Lodge of NSW and District Lodge of NSW in place of a State Council. At a further meeting on 16 - 18 November 2019 of the 65th National Convention of AHEPA Australia (Ex J1, 6008), a resolution was passed that the structure in NSW would revert to the Grand Lodge of NSW and the District Lodge of NSW, as distinct from a combined State Council (Ex J1, 6027). It appears that, notwithstanding that the Grand Lodge and District Lodge had previously been displaced within AHEPA Australia Ltd in about 2015 when it incorporated and adopted a new constitution, they were then brought back into operation, purportedly by a decision made by AHEPA Australia Ltd that this aspect of its affairs would be governed by the constitution of AHEPA Australia, the former unincorporated body, which recognised those bodies rather than by its own constitution. From about this time, the Grand Lodge and District Lodge again participated in the affairs of AHEPA Australia Ltd, presumably constituted by persons aligned with AHEPA Australia Ltd and the Gouros parties, and participated in national conventions of AHEPA Australia Ltd (Ex J1, 6023, 6027, 6695, 6701ff, 6706, 6708, 7863-7866, 8019, 8022, 8025, 8079, 8081-8082, 8088, 8095, 8292).
The plaintiffs in Lianos 2019 brought an appeal from the orders made by Rees J in Lianos 2019, which was initially determined by the Court of Appeal in Lianos CA 1, although the Court of Appeal later varied significant aspects of that judgment, as I note below, in its subsequent judgment in Lianos CA 4. Broadly, in Lianos CA 1, the Court of Appeal found that rules 3(1) and 3(2) of the 2018 Rules were cumulative requirements and the reference to an "unincorporated association" in the 2018 Rules was a reference to AHEPA Australia Ltd, the incorporated association which the Court of Appeal then understood to be the successor of AHEPA Australia, an unincorporated association.
Emmett AJA (at [110]ff), with whom Macfarlan and Meagher JJA agreed, observed in Lianos CA 1 that Rees J was correct to conclude that the reference in rule 3(1) of the 2018 Rules to membership of the "unincorporated association" denoted membership of a chapter, but there held that chapter membership could not be separated from membership of AHEPA Australia, in a finding that was varied in Lianos CA 4. His Honour observed (at [130]ff), in a finding that was also varied in Lianos CA 4, that AHEPA NSW could be characterised as a subordinate part of AHEPA Australia and should not be regarded as separate and independent from AHEPA Australia. The Gouros parties rely in this proceeding on Emmett AJA's observations in Lianos CA 1 at [134], [136]-[137] and [139]-[143] that: "In Pt XIV of the 1990 AHEPA Constitution, there is no mention of the "Order of AHEPA in New South Wales" (1990 being prior to the incorporation of the Association) having adopted or acknowledged the 1990 AHEPA Constitution. However, there is a phrase in the corresponding Part of the 2010 AHEPA Constitution that the Association "adopted" the AHEPA Constitution and Bylaws, and similarly in the 2017 AHEPA Constitution that the Association "acknowledged" the AHEPA Constitution and bylaws. … [Rees J] considered that, in circumstances where rr 47 and 48 refer to "the former unincorporated Association" and "the Association" is defined as Order of AHEPA NSW Incorporated (as it was following the 2003 amendments), the former incorporated Association was a reference to "the Order of AHEPA in the State of New South Wales". There was no evidence of any separate body, organisation or association known as "the Australian Hellenic Educational Progressive Association in New South Wales" or "the Order of AHEPA New South Wales", as referred to in r 2 of Pt I of the 1993 Rules of the Association. There was no evidence of a "constitution and rules" governing such a body as referred to by r 48. Further, in the 1990 AHEPA Constitution there was no mention of an Order of AHEPA in New South Wales adopting the rules contained in Pt XIV. However, following the incorporation of the Association in 1993 and in light of rr 47 and 48 noted above in the Association's Rules, in the next iteration of AHEPA Australia's Constitution, the 2010 AHEPA Constitution, Pt XIII (the successor of Pt XIV) had been amended to indicate that the Association had adopted AHEPA Australia's Constitution and Bylaws. Plausibly, the Association under rr 48 and 49 adopted AHEPA Australia's constitution and rules (being the unincorporated association) and, at some point after 1993, AHEPA Australia resolved to recognise that adoption in its own documents. Although the time periods between documents is not insignificant, the correlation between the incorporation and the amendment lends at least a measure of support for the view that the "unincorporated association" referred to AHEPA Australia. In any case, as [Rees J] correctly observed, the rules, constitutions, regulations and by-laws of AHEPA Australia and the Association do not align and appear to have been drafted and amended without ensuring internal consistency, clarity and accuracy. In such circumstances I would not in[f]er anything from the specific usage of terms which might have greater weight in other contexts such as in the interpretation of statutes. The Trust Deed referred to the cestui que trust of the trust established by it as the "Order of AHEPA in the State of New South Wales". There is nothing to indicate that that was a reference to a body, association or organisation, separate from AHEPA Australia, as that body existed in 1981 when the Trust Deed was executed. I consider that the reference to "the Australian Hellenic Educational Progressive Association in New South Wales" or "the Order of AHEPA New South Wales" can only be understood as a reference to AHEPA Australia in so far as that body, organisation or association had a presence in New South Wales. That is consistent with the reference in Pt XIV of the 1990 AHEPA Constitution to "the Order of AHEPA in the State of New South Wales". The language of Pt XIV indicates that its author treated the regulation of the affairs of AHEPA Australia in New South Wales separately from the affairs of AHEPA Australia generally. Similarly, at the end of the 1990 AHEPA Constitution there were "additional rules of the Order of AHEPA in the State of Victoria". The language of those rules is also indicative of the management and regulation of the affairs of AHEPA Australia in Victoria separately from the affairs of AHEPA Australia generally. However, both Pt XIV and the additional rules concerning Victoria are consistent with there only being one national body, organisation or association, namely AHEPA Australia. Their inclusion in the 1990 AHEPA Constitution is not consistent with there being separate and independent bodies, being the order of AHEPA in the State of New South Wales and the Order of AHEPA in the State of Victoria. It follows from those considerations that the reference to "the unincorporated association" in the 1993 Rules of the Association and in particular in the objects to taking over the funds and other assets and liabilities of "the presently unincorporated association, the Australian Hellenic Educational Progressive Association in New South Wales, also known as the Order of AHEPA New South Wales", is not to be understood as a reference to a separate independent body organisation or association but to the body, organisation or association known as "AHEPA Australia" in so far as that body, organisation or association has a presence in New South Wales."
Emmett AJA also then observed (at [146]) that: "…the numerous references to "the unincorporated association" found in Parts II and III of the 2018 Rules of the Association cannot refer to any organisation other than the organisation that, at the time when the 1993 Rules of the Association became operational, was regulated by the 1990 AHEPA Constitution and the 1990 AHEPA Regulations. That organisation was AHEPA Australia. AHEPA Australia, an unincorporated association, was the only association that could have been referred to as "the unincorporated association" in the 1993 Rules of the Association."
AHEPA NSW was subsequently placed in voluntary administration (Ex J1, 6237) and, on 24 September 2020, Messrs Lianos and Gouros filed a motion seeking leave to continue the appeal under s 440D of the Corporations Act (Ex J1, 6222). On 26 November 2023, in Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304 ("Lianos CA 2"), the Court of Appeal granted leave to continue the appeal to Messrs Lianos, Gouros and Kypreos under s 440D of the Corporations Act 2001 (Cth) and granted the relief sought by them, but stayed those orders for 21 days to allow the Eight Incorporations to seek to re-open the appeal. Subject to that stay, the Court of Appeal there declared (at order 3(a)) that the reference in certain clauses of the 2018 Rules to the "unincorporated association" was a reference to AHEPA Australia Ltd (I interpolate, the incorporated body) as the successor to the previous unincorporated association. The Court of Appeal also declared (in order 3(b)) that: "on and from the Registration Date, in order to become a member of the Association who is entitled to vote at any general meeting of the members of the Association, a person must have been a financial member of a Chapter (or Unit) of AHEPA Australia that is geographically situated in New South Wales on the 30th of June of the last financial year, such membership to have occurred in accordance with Part X of the By-Laws of AHEPA Australia, as promulgated by the National Convention pursuant to clause 2 of Part X of the Constitution of AHEPA Australia." As I will note below, order 3(a) then made by the Court of Appeal was subsequently set aside and order 3(b) was amended in its later judgment in Lianos CA 4.
On 11 December 2020, the Eight Incorporations filed a motion in the appeal seeking that they be joined as parties to the appeal in order to apply for an order that the Court of Appeal reopen its judgment in Lianos CA 1 and sought an extension of the stay ordered in Lianos CA 2: Lianos v Order of AHEPA NSW Inc (No 3) [2020] NSWCA 340 ("Lianos CA 3") at [6]-[8]. On 17 December 2020, the Court of Appeal in Lianos CA 3 extended the stay of the orders in Lianos CA 2 until the determination of the reopening application.
The Court of Appeal heard the reopening application on 26 February 2021 and Mr Corsaro emphasises an exchange which then took place in that application between Mr Ashhurst (who there appeared for Messrs Lianos, Gouros and Kypreos) and the Court of Appeal (Ex J1, 6665-6666) as follows: "MACFARLAN JA: My recollection of the applicant's written submissions was that they were saying that to be a member of the New South Wales body one had to be a member of the Australian body, whereas the point I'm making is that the declarations talk about someone being a member of a chapter of the Australian body. ASHHURST: We would agree with your analysis. That is, that the declarations require a party to be a member, that the chapter be a member of the Federal body. MEAGHER JA: Is that the case in respect of the eight chapters of the applicants? ASHHURST: It certainly was at the time of incorporation. I can't speak now as to whether or not any charters have been revoked. I simply have no knowledge. But at the relevant time, at the date of the incorporation of the Federal body, they certainly were. At the time of Black J's orders [in AHEPA 2016] they certainly were." [emphasis added]
At that point, Counsel for Messrs Lianos and Gouros accepted a proposition which they now seek to controvert, and invited the Court of Appeal to proceed on the basis that the Eight Incorporations were, at least at the point of incorporation and the agreement noted in my judgment in AHEPA 2016, among the 13 Chapters. Counsel's acceptance of that proposition is not surprising where, as I have noted above, the evidence of Mr Antonakos on which Messrs Lianos and Gouros had relied in support of the Originating Process in Lianos 2019, which was before the Court of Appeal in the subsequent appeal, itself proceeded on the basis that the Eight Incorporations were within the 13 Chapters.
Turning now to Lianos CA 4, the Court of Appeal there declared that, on and from my orders made on 21 March 2018 in AHEPA 2016, in order to become a member of AHEPA NSW who is entitled to vote at any general meeting of members of AHEPA NSW, a person must have been a financial member, on the 30th of June of the last financial year, of one of the 13 Chapters. In oral submissions, Mr Pritchard accepts that Messrs Lianos and Gouros did not contend, in Lianos CA 4, that the Eight Incorporations, by reason of their incorporation or their history, were not chapters of AHEPA NSW and were strangers to it (T159). That is also not surprising where, as I noted above, Messrs Lianos and Gouros had put evidence before Rees J in support of the Originating Process in Lianos 2019, which was in turn before the Court of Appeal in Lianos CA 1 and Lianos CA 4, that proceeded on the basis that the Eight Incorporations were chapters of AHEPA NSW.
In Lianos CA 4, the Court of Appeal recognised (at [34]ff) difficulties which had arisen in respect of its orders made in Lianos CA 1 and Lianos CA 2, arising from its observations concerning the subordinate position of AHEPA NSW and its chapters to AHEPA Australia. The Court noted (at [37]) that, in Lianos CA 1 at [114], it had agreed with Rees J's finding in Lianos 2019 that rule 3(1) of the 2018 Rules contemplated membership of a chapter geographically located in New South Wales, and noted (at [39]) that both Rees J and the Court of Appeal had concluded that the "unincorporated association" referred to in that rule was the Order of AHEPA in the State of New South Wales, as referred to in Pt XIV of the 1990 AHEPA Constitution. The Court of Appeal observed (at [45]) that, while membership of the "unincorporated association" referred to membership of AHEPA Australia, that condition was satisfied by membership of a chapter geographically located in New South Wales and (at [46]) that: "[f]or the reasons given in [AHEPA CA 1], there must have been some continuing "unincorporated association" by reference to which the Association conducted its affairs. Thus, "unincorporated association" could not refer to the Chapters alone, as somehow distinct from AHEPA Australia."
The Court also recognised (at [49]) that: "[i]t may well be the case that AHEPA Australia Limited is not appropriately described as a successor body to AHEPA Australia or "the Order of AHEPA in the State of New South Wales". However, in terms of identifying what r 3(1) required of individuals, it was membership of a Chapter located in New South Wales that was required. Both the primary judge and [Lianos CA 1] concluded that membership of the "unincorporated association" was established by membership of a Chapter geographically located in New South Wales."
The Court then explored (at [50]ff) several complexities in respect of that observation. The Court observed (at [53]) that: "[Rees J's] conclusion that "unincorporated association" had come to mean membership of a Chapter was equivalent to the conclusion intended by [Lianos CA 1] that r 3(1) would be satisfied by membership of one of the 13 Chapters at the conclusion of the previous financial year."
The Court then observed (at [63]) that there are 13 Chapters located in New South Wales, identified those chapters and observed that: "[t]hese 13 Chapters include the [Eight Incorporations], each of which has been incorporated under the [2009 Act] or the [1984 Act]. Of the remaining five Chapters, Chapter Heracles No. 12 appears to be incorporated and the other four have not been incorporated under the [2009 Act] or under the [1984 Act]." [emphasis added]
Mr Corsaro rightly submits, in summary, that the Court of Appeal there identified that there were 13 Chapters in AHEPA NSW as at 6 August 2021 and identified that the Eight Incorporations were eight of the 13 Chapters; took into account (at [65]) that, without modification of the orders in Lianos CA 1, delegates from the Eight Incorporations would not be allowed to participate in AHEPA NSW's Committee of Management; and also noted (at [81]) that the effect of the Court's orders in Lianos CA 4 would be, in effect, to freeze the composition of the "unincorporated association" as referred to in rule 3(1), limiting it to the 13 Chapters including, I interpolate, the Eight Incorporations. The Court also referred (at [64]) to my judgment in AHEPA 2016, where I had noted the agreement between the parties as to who would be entitled to vote at a special general meeting and not expressed any view as to its merits.
The Court of Appeal recognised (at [74]) its earlier misapprehension as to the structure of AHEPA Australia Ltd and possibly AHEPA Australia, and the relationship of that structure with AHEPA NSW, in its judgment in Lianos CA 1 and observed (at [79] and [81]) that: "[t]he November Orders were not intended to alter the current membership of [AHEPA NSW]. To reflect properly the reasoning of [Lianos CA 1], Order 3.a. should be rescinded and Order 3.b. should simply declare that, on and from the Registration Date, in order to become a member of [AHEPA NSW] who is entitled to vote at any general meeting of the members of [AHEPA NSW], a person who was not already a member of [AHEPA NSW] as at the Registration Date must have been a financial member of one of the 13 Chapters on 30 June of the last financial year. … It is apparent that there will be difficulties as to the operation of the Rules of [AHEPA NSW] in so far they refer to the "unincorporated association". For example, there is no mechanism to address the situation where new Chapters purport to have been established and claim that they should have a part in [AHEPA NSW], since, in effect, the orders freeze the composition of the unincorporated association, limiting it to the 13 Chapters. There may well be mechanisms open to the members of [AHEPA NSW] to remedy those difficulties. However, those questions are not presently before this Court."
As I noted above, on 6 August 2021, the Court of Appeal in Lianos CA 4 rescinded order 3(a) and amended order 3(b) made in Lianos CA 1 to read as follows: "[d]eclare that, on and from the registration of the 2005 resolutions, the 2007 resolutions, and the 2010 resolutions in accordance with the orders of Black J made on 21 March 2018 in proceeding number 2016/380711 in the Supreme Court of New South Wales (the 2018 Orders), in order to become a member of the first respondent ([AHEPA NSW]) who is entitled to vote at any general meeting of the members of [AHEPA NSW], a person must have been a financial member, on the 30th of June of the last financial year, of one of the 13 Chapters referred to in the 2018 Orders."
It seems to me that this declaration must be construed on the basis that the 13 Chapters include rather than exclude the Eight Incorporations, where the Plaintiffs advanced that case in Mr Antonakos' evidence in Lianos 2019 which was then put before the Court of Appeal, and the Court of Appeal explained the orders made in Lianos CA 4 on that basis. The Gouros parties, in effect, seek to have me reverse that declaration, as construed by reference to that evidence and the Court of Appeal's reasoning, in this proceeding.

Affidavit evidence

The parties relied on voluminous affidavit evidence, although limited parts of it were read, as the issues in the proceedings narrowed, and they largely agreed that significant parts of that evidence should be admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) ("Evidence Act") as the witnesses' understanding rather than as proof of the relevant fact. That had the result that many of the facts for which the parties contended, had they been relevant, were only proved so far as they emerged from the tender of documents. The witnesses' affidavits generally established only that they each understood matters in a way that was, unsurprisingly, consistent with the position put by the faction with which they were associated and inconsistent with the position for which the other faction contended.
First, the Gouros parties read the affidavit dated 5 April 2023 of Ms Melas, who had previously been party to AHEPA 2016. She is a member of Chapter Arete No 3 and says that she has been a member of AHEPA Australia since 1972 and a member of AHEPA NSW since about 1993. She gives evidence of the circumstances in which, in 2015, she was told of a separation between the Grand Lodge of AHEPA NSW and the National Lodge of AHEPA Australia and did not support that course. Ms Melas also refers to a dispute which existed, in 2015 and into the first half of 2016, between Chapter Arete No 3 and representatives of AHEPA NSW as to the status of that chapter, although it is not apparent why that dispute is relevant to the matters arising in these proceedings.
Second, the Gouros parties read the affidavit dated 6 April 2023 of Mr Antonakos, who is a member of AHEPA Australia, and has been a member of Chapter Prometheus No 6 since 1980, and has been affiliated with Chapter Apollon No 16 since 1991 and is a financial member of that chapter. He is also a member of AHEPA NSW. I have referred above to Mr Antonakos' affidavit evidence led in Lianos 2019 and put before the Court of Appeal in Lianos CA 1 and Lianos CA 4. Mr Antonakos refers in his affidavit in these proceedings to the circumstances of the acquisition of and dealings with properties at Surry Hills and Chippendale and gives evidence, admitted by agreement of the parties with a limitation under s 136 of the Evidence Act as his understanding only, of his understanding as to the relationship between AHEPA NSW and AHEPA Australia and the requirements for membership of those organisations dating back to 1990. He also refers to events at meetings of AHEPA NSW and AHEPA Australia over several years, although many paragraphs of his affidavit which simply referred to documents were not read. It appears that Mr Antonakos' affidavit was directed to providing a comprehensive history of AHEPA NSW and AHEPA Australia without significant regard to the scope of the matters in issue in the proceedings when they commenced, and still less the narrower matters which remain in issue in the proceedings. Mr Antonakos did not there refer to the evidence that he had given in Lianos 2019, to which I referred above, that proceeded on the basis that the 13 Chapters included the Eight Incorporations. He was not cross-examined as to that matter; Mr Corsaro made clear that he made no submission adverse to Mr Antonakos concerning that omission (T190); and I reach no finding adverse to Mr Antonakos in respect of that omission.
Third, the Gouros parties read the affidavit dated 6 April 2023 of Ms Alexandrou, which refers to her involvement with Chapter Arete No 3 and to her membership of AHEPA Australia and AHEPA NSW. She also refers to events since 2015, although the parts of her affidavit which merely referred to documents were also not read, and to her concerns as to aspects of the operation of AHEPA NSW, although it is not apparent how those concerns are relevant to the matters that remain in issue. Fourth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Bouris, who has been associated with several chapters of AHEPA Australia or AHEPA NSW, and sets out her understanding of the process by which members join a chapter of AHEPA NSW and refers to disputes between Chapter Antigone No 8 and AHEPA NSW and to the membership of AHEPA NSW. Large parts of her affidavit appear to be relevant, if at all, to matters that are no longer in issue in these proceedings.
Fifth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Cretan, who is a member of Chapter Arete No 3 and refers to the practice for members joining that chapter and to the financial members of that chapter. Sixth, they read the affidavit dated 6 April 2023 of Ms Diakovasili, who is a member of Chapter Antigone No 27, in turn refers to the financial members of that chapter and addresses issues as between the chapter and AHEPA NSW, which also do not appear to be relevant to any matter that remains in issue in the proceedings. Seventh, they read the affidavit dated 6 April 2023 of Mr Gouros, who is a member of Chapter Heracles No 12. He refers, in evidence admitted with a limiting order under s 136 of the Evidence Act as to his understanding, by agreement of the parties, to his previous role as President of the Grand Lodge of NSW and to his financial membership of Chapter Apollon No 16. Eighth, they read the affidavit dated 6 April 2023 of Mr Lianos, who is also a member of Chapter Heracles No 12 and an affiliated member of Chapter Anatole No 7, refers to the history of his involvement with AHEPA Australia and to the position in respect of state conventions and national conventions and other meetings in 2019 and 2020 and to the identity of financial members of Chapter Anatole No 7. Ninth, they read the affidavit dated 6 April 2023 of Mrs Lianos, who is also associated with Chapter Heracles No 12 and identified the financial members of that Chapter as at June 2021, although it is again not apparent why that evidence is relevant to the matters that remain in issue. Tenth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Lynch, who referred to her involvement with AHEPA Australia and addressed, in evidence that was not read, the separation of AHEPA NSW and AHEPA Australia in 2015, and, in evidence that had no apparent continuing relevance, referred to the preparation of a list of the financial members of Antigone No 8 for the 2021 financial year.
The Defendants read part of the affidavit dated 8 October 2021 of Mr Fandakis, who is a member of Chapter Chiron No 22 and has been a member of the Committee of Management of AHEPA NSW for Chapter Chiron No 22 since 2009. He referred, in evidence that was admitted by agreement of the parties with a limitation under s 136 of the Evidence Act, to his understanding as to the transfer of decision-making power from the Grand Lodge to AHEPA NSW's Committee of Management. A substantial part of that affidavit was not read.
The Defendants also relied on Mr Fandakis' second affidavit dated 28 June 2023, substantial parts of which were also not read. The parts of that affidavit that were read were generally admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as directed to his understanding, rather than as to proof of the fact. Mr Fandakis referred to the origin of AHEPA NSW, to organisations using the name "AHEPA" which operate in Queensland and Victoria and to their suggested independence from AHEPA Australia. He referred to the process by which a person becomes a member of AHEPA NSW, also in evidence admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as evidence of his understanding and not proof of the fact, and to the identity of the 13 Chapters which he contends include the Eight Incorporations. He contended that those chapters were recognised as the chapters of AHEPA NSW in AHEPA 2016, where I had noted the agreement of the parties as to who would be entitled to vote at a meeting, and contends that they were recognised as chapters of AHEPA NSW by the Court of Appeal in Lianos CA 4.
Mr Fandakis also outlined, again in evidence admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as his understanding, the history of those chapters and the time at which some of them became incorporated associations. He also addressed the role of the Grand Lodge of New South Wales, in evidence also admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as his understanding and not proof of the fact. He also referred to the current officers of the Grand Lodge of New South Wales and to the current members of the Committee of Management and current officers of AHEPA NSW, in evidence admitted on the same basis by agreement of the parties. He also responded to aspects of the affidavit evidence led by the Gouros parties, although it was not apparent that any of the matters in dispute between those affidavits would significantly advance the determination of the proceedings.
The Defendants also read part of the affidavit dated 21 June 2023 of Mr Kallimanis, who referred to his involvement with Chapter Diogenes No 8 and to the positions which he has held with AHEPA NSW and the Grand Lodge and to his role with the Committee of Management of AHEPA NSW. He also refers to the fact that the Grand Lodge of AHEPA NSW ceased to have any affiliation with the National Lodge from 2015 and responded to aspects of Ms Melas' evidence on which the Gouros parties relied. They also read the affidavit dated 27 June 2023 of Dr Diamadis who referred to his various roles with AHEPA NSW, addressed the position in respect of applications for charters and national conventions and also responded to aspects of the evidence led by the Gouros parties.
The Gouros parties read several affidavits in reply, namely the affidavit dated 26 July 2023 of Ms Diakovasili, the affidavit dated 26 July 2023 of Ms Mouratidou relating to the translation of Ms Diakovasili's affidavit, the affidavit dated 26 July 2023 of Mr Lianos, the affidavit dated 26 July 2023 of Ms Lianos, the affidavit dated 26 July 2023 of Mr Antonakos and the affidavit dated 26 July 2023 of Ms Bouris. Those affidavits took issue with aspects of the affidavit evidence led by the Defendants and referred to additional documents, although it is again not apparent to me that they significantly advanced any issue in the proceedings.

The first issue as to eligibility for membership (and financial membership) of AHEPA NSW and the parties' submissions

The first issue that remains in dispute between the parties is eligibility for membership (and financial membership) in AHEPA NSW. It is common ground that AHEPA NSW is governed by the 2018 Rules (2FASC [A9], admitted Defence [9]). It is also common ground (2FASC [A11], admitted Defence [11]) that rule 3(1) of the 2018 Rules provides that any person who has been a "financial member of the unincorporated association" on 30 June of the last financial year and agrees to be bound by the code of ethics and rules of the "unincorporated association" shall be entitled to be a member of AHEPA NSW.
The Gouros parties contend (2FASC [A12]) that, properly construed, for a person to be a financial member of the unincorporated association within the meaning of rule 3(1) of the 2018 Rules, the person needs to be a member of one of the chapters of AHEPA Australia based in New South Wales. The Gouros parties particularise the judgments of the Court of Appeal in Lianos CA 1 and Lianos CA 4 in support of that proposition. The Defendants respond (Defence [12]) that: "a. … properly understood, the reference to 'unincorporated association' in the 2018 Rules means AHEPA NSW, an independent unincorporated association established in 1953, which is comprised of a Grand Lodge of New South Wales and Chapters (referred to herein as AHEPA NSW); b. … in [Lianos CA 4] the Court of Appeal made a declaration in rem to the effect that to be a financial member of [AHEPA NSW], the person needs to be a financial member of one of the 13 Chapters; c. say that it is not open to this Court to undo or set aside the declaration of the Court of Appeal in [Lianos CA 4]; [and] d. otherwise deny the paragraph."
The Gouros parties then plead (2FASC [A13]-[A17]) that the current governing documents of AHEPA Australia comprise a Constitution revised in October 2010 and By-Laws also revised in October 2010 and they plead several provisions of that constitution dealing with the role of a National Lodge and how a chapter of AHEPA Australia is to be established. The Defendants deny (Defence [13]-[17]) these paragraphs, but only on the basis that AHEPA Australia ceased to exist in around July 2017, following the incorporation of AHEPA Australia Ltd, and admit that paragraph if the Court concludes to the contrary.
The Gouros parties then plead (2FASC [A18]), contrary to Lianos CA 4 on which they partly rely, that the current chapters of AHEPA NSW based in NSW are seven unincorporated chapters ("AHEPA Australia Chapters"). The Defendants respond (Defence [18]) that there are presently 13 Chapters, including the Eight Incorporations, reflecting the conclusion reached by the Court of Appeal in Lianos CA 4, and contend that it is not open to revisit that conclusion in that judgment in these proceedings. They also there contend that the Gouros parties are bound by the agreement reached in AHEPA 2016 and that it is not open to them to resile from that agreement and that: "…the findings sought by the [Gouros parties] would result in the disenfranchisement of members of [AHEPA NSW] in circumstances where those members have not been properly notified of that potential disenfranchisement or joined to these proceedings, and therefore are findings not open to the Court to make."
The Gouros parties then plead (2FASC [A19]) and the Defendants deny (Defence [19]) that: "[a]ccordingly, by reason of the matters pleaded in paragraphs A13 to A18 above, for the purposes of rule 3(1) of the 2018 Rules pleaded in paragraphs A11 and A12 above, the financial members of the unincorporated association who are entitled to membership of [AHEPA NSW] are the financial members of the AHEPA Australia Chapters and any other Chapter of AHEPA Australia based in NSW which is established in the future." The Defendants also plead (Defence [42]) a wider defence of issue estoppel, res judicata or abuse of process, which I will address below.
The Gouros parties then contend (2FASC [A21]-[A23]) that none of the Eight Incorporations has been approved as a chapter by the National Lodge of AHEPA Australia or holds a charter issued by the National Lodge; none of the members of the Eight Incorporations is a member of any of the AHEPA Australia chapters' and: "[a]ccordingly, by reason of the matters pleaded in paragraphs A11 to A22 above, none of the members of the [Eight Incorporations] is a financial member of the unincorporated association and entitled to membership of [AHEPA NSW], for the purposes of rule 3(1) of the 2018 Rules." The Defendants largely repeat their defence to the Gouros parties' claim pleaded in 2FASC [18] noted above in that regard.
Three things should be noted about the Gouros parties' contentions in 2FASC [A11]-[A23]. First, they contend, contrary to the result reached by the Court of Appeal in Lianos CA 4, that the 13 Chapters include the Eight Incorporations, so that the members of the Eight Incorporations are entitled to be members of AHEPA NSW. Second, as I note below, the Gouros parties do not identify any tenable basis on which the position as to the "financial members of the unincorporated association" would not be determined consistently with the concepts of "unincorporated association" and "members of the unincorporated association" in the Rules, so that the proper construction of the latter concept is determinative of the proper construction of the former concept. Third, the Gouros parties seek findings that are directed to the exclusion of members of AHEPA NSW who are financial members of the Eight Incorporations from AHEPA NSW, although those members have not been joined as party to the proceedings, and I declined to make a representative, sought by the Gouros parties that would avoid the need for that joinder for the reasons noted below. After that occurred, the Gouros parties did not then seek any alternative order joining those individual members, or possibly one member of each of the Eight Incorporations as representative of the members of that body, as party to the proceedings.
Turning now to the parties' submissions, Mr Pritchard characterises the proceedings as concerning eligibility for membership of AHEPA NSW. Mr Pritchard submits that none of the 13 Chapters referred to in the agreement between the parties noted in AHEPA 2016 is there identified as an incorporated entity. However, I have referred above to the documents exhibited to Mr Antonakos' affidavit dated 24 January 2019 read in Lianos 2019 which indicate that the Eight Incorporations were generally referred to by the names of their unincorporated predecessors. In Lianos CA 4, the Court of Appeal also made declarations which, it seems to me, should be construed by reference to Mr Antonakos' evidence which was before the Court of Appeal and the Court of Appeal's conclusion that the 13 Chapters identified in that agreement included the Eight Incorporations. It is not necessary to address the further, and very detailed, submissions made by Mr Pritchard as to the background of those orders and the parties' agreement noted in AHEPA 2016, given the findings which I reach below as to abuse of process and the fact that the large part of the relief sought by the Gouros parties cannot be made where they have not joined members of the Eight Incorporations who they seek to exclude from membership of AHEPA NSW and who are necessary parties to the proceedings so far as they seek that relief.
Mr Pritchard also relies on the fact that no representative order was made in Lianos 2019 or in the appeal and submits that the declarations made in those proceedings only bind the parties to those proceedings, namely AHEPA NSW, the Eight Incorporations and the individual appellants, including Messrs Lianos and Gouros who are Plaintiffs in these proceedings. While that matter may be relevant to the existence of an issue estoppel or res judicata arising from these proceedings, the case law to which I refer below indicates that it is of limited relevance to the question whether the Gouros parties' claims in these proceedings amount to an abuse of process by re-litigation of matters that were or ought to have been in issue in Lianos 2019 and the subsequent appeals.
Mr Pritchard submits that: "[w]hat is equally clear is that the Court of Appeal had not been asked to consider whether the 13 Chapters, in fact, included the Eight Incorporations. That issue was not before the Court of Appeal. In [Lianos CA 4] at [63], the Court of Appeal appeared simply to have made that assumption, on the basis that it was the Eight Incorporations which were seeking revision to the November 2020 Orders and they asserted that they were not part of AHEPA Australia Limited which had, by then, been formed. In so proceeding on that assumption, the Court of Appeal was, respectfully, proceeding on another "misapprehension"."
I have addressed the Court of Appeal's judgment in Lianos CA 4 above. I cannot accept Mr Pritchard's submission where, as I noted above, the evidence led by Messrs Lianos and Gouros in Lianos 2019 and put before the Court of Appeal in Lianos CA 1 and Lianos CA 4, and specifically Mr Antonakos' affidavit dated 24 January 2019 and its exhibit on which the plaintiffs relied in support of the Originating Process in Lianos 2019, proceeded on the basis the 13 Chapters included the Eight Incorporations. The exhibited documents made clear that the Eight Incorporations referred to themselves, in their incorporated form, by the names of the former unincorporated chapters. There was a sufficient evidentiary basis, in the evidence given by Mr Antonakos and the documents exhibited to his affidavit and there relied on by Messrs Lianos and Gouros, for the Court of Appeal to proceed on that basis. That matter is not properly characterised as an "assumption" wrongly made by the Court of Appeal, still less as a "another misapprehension" by the Court of Appeal, but instead as the factual basis on which the parties proceeded, consistent with Mr Antonakos' affidavit and the documentary evidence, in Lianos 2019, Lianos CA 1 and Lianos CA 4.
Mr Pritchard also fairly recognises, in opening submissions, that the finding that the Gouros parties seek in respect of the Eight Incorporations has the necessary consequence that "none of the persons who are members of the Eight Incorporations is a member of one of the 13 Chapters and accordingly those members are not members of AHEPA NSW." That emphasises, of course, the extent to which that finding is adverse to the interests of those individual members of the Eight Incorporations, who have not been joined as party to the proceedings and as to whom I have declined to make the representative order sought by the Gouros parties, for the reasons noted below. The Gouros parties did not then seek any alternative representative order. I return to that matter below.
In closing submissions, Mr Pritchard in turn identifies this issue as raising the question: "[w]hat is the "unincorporated association" of which a person needs to be a financial member and in respect which unincorporated association's code of ethics and rules a person agrees to be bound, in order to be entitled to be a member of [AHEPA NSW] pursuant to rule 3(1) of the 2018 Rules."
Mr Pritchard again submits that the "unincorporated association" to which reference is made in rule 3(1) of the 2018 Rules is AHEPA Australia and again refers to the observations in Lianos CA 1 and Lianos CA 4 to which I have referred above. Mr Pritchard again submits that a person is a "financial member of the unincorporated association" within the meaning of rule 3(1)(a) if a person is a financial member of one of the chapters of AHEPA Australia based in New South Wales and again relies on part of the decision in Lianos CA 4 and the declarations made in that case for that proposition. He contends that there are currently only seven chapters of AHEPA Australia based in New South Wales, excluding the Eight Incorporations, notwithstanding the observation of the Court of Appeal that the Eight Incorporations were included in the 13 Chapters in Lianos CA 4 at [63].
Mr Pritchard also submits that none of the Eight Incorporations (as distinct from their members) agree to be bound by the code of ethics and rules of the unincorporated association as provided by rule 3(1)(b) of the 2018 Rules, again seeking to controvert the Court of Appeal's observation that the Eight Incorporations are chapters of AHEPA NSW. However, the relevant rule is directed to an individual member's eligibility for membership and to his or her agreement to those rules and ethics, not to the position of the Eight Incorporations at a chapter level. The Gouros parties did not lead evidence as to the position of those individual members which should not be determined where they were not joined as parties to the proceedings. Mr Pritchard also identifies the adverse impact of the findings sought on existing financial members of the Eight Incorporations who are currently recognises as financial members of AHEPA NSW, in submitting that: "[a]ccordingly, the financial members of the Eight Incorporations do not meet the membership eligibility requirements in either Rule 3(1)(a) or Rule 3(1)(b) of the 2018 Rules."
I find below that it is not open to the Gouros parties to pursue that proposition, both by reason of principles of abuse of process and because the members (and financial members) of the Eight Incorporations who would be excluded from membership (and financial membership) of AHEPA NSW, if that proposition was accepted, have not been joined as party to the proceedings, and a representative order was not properly made in the form proposed by the Gouros parties or sought by them in an alternative form.
Mr Pritchard in turn submits that the position now put by the Gouros parties is not inconsistent with Lianos CA 4, implicitly despite Mr Antonakos' evidence there led by Messrs Lianos and Gouros (to which I referred above) that accepted that the Eight Incorporations were chapters of AHEPA NSW and the Court of Appeal's conclusion that the Eight Incorporations were chapters of AHEPA NSW. I do not accept that submission, where a finding that the Eight Incorporations are not chapters of AHEPA NSW and their members (and financial members) are not members (and financial members) of AHEPA NSW would contradict the position advanced by Messrs Lianos and Gouros in leading Mr Antonakos' evidence to support their claim in Lianos 2019 and the orders made by the Court of Appeal construed in accordance with that evidence and its reasoning to which I have referred above.
Mr Pritchard submits that the position for which the Gouros parties now contend would not result in a large part of the existing members of AHEPA NSW being "disenfranchised", because they could become a financial member of AHEPA NSW by becoming a member of one of the unincorporated chapters of AHEPA Australia in New South Wales that are associated with the Gouros parties, and because they had voluntarily ceased being members of unincorporated chapters of AHEPA Australia based in New South Wales. That submission, with respect, is wholly unpersuasive. A person who presently is and wishes to remain a member (and financial member) of one of the Eight Incorporations and AHEPA NSW is plainly "disenfranchised" if he or she is excluded from the register of members of AHEPA NSW, as the Gouros parties seek, and then not entitled to vote at a meeting of AHEPA NSW or take part in its affairs. It is no answer to that proposition to say that he or she could then exercise a forced "choice" to join an unincorporated chapter associated with the Gouros parties, quite apart from the real risk that the unincorporated chapters may not then welcome or permit the enrolment of members of the opposing faction.
Mr Pritchard also addresses the principles applicable to construing the governing documents of associations, summarised by the Court of Appeal in Australian Federation of Islamic Councils Inc v United Moslems New South Wales Inc [2021] NSWCA 311, to which I have regard, but they have limited application here where the relevant issues of construction were previously determined in Lianos 2019 as varied by Lianos CA 1 and Lianos CA 4. Mr Pritchard also refers, at length, to the history of AHEPA Australia and AHEPA NSW, again drawing on the decision of the Court of Appeal in Lianos CA 1 and Lianos CA 4. Mr Pritchard also summarises events concerning AHEPA NSW and AHEPA Australia before 2015 and from February to April 2015, and identifies their suggested consequences, in submissions that again address the issues determined in Lianos 2019 and Lianos CA 1 and Lianos CA 4. Mr Pritchard addresses the history of previous litigation, including AHEPA 2016, Lianos 2019, Lianos CA 1 and Lianos CA 4, to which I have referred above. Mr Pritchard also develops an elaborate analysis of the suggested consequences of the position for which the Gouros parties contend, which I do not address, where to do so would advance the abuse of process which I address below and deprive the persons claiming to be members (and financial members) of AHEPA NSW who are members (and financial membership) of the Eight Incorporations of procedural fairness, where it seeks to establish that they should be excluded from membership of AHEPA NSW and they have not been joined as party to the proceedings, or an appropriate representative order made.
In closing, Mr Pritchard also relies on a chronology of some 74 pages addressing events in the history of AHEPA Australia and associated entities since 1934, although a significant part of the documentary evidence supporting that chronology was not tendered. The Gouros parties do not seek to address the consistency, or inconsistency, of the history for which they contend with the review of the history of these bodies in Lianos 2019 or the subsequent appeals, so that it is not possible to know the extent to which Messrs Lianos and Gouros, who were parties to Lianos 2019 and the subsequent appeals, now seek to have the Court reach findings as to matters already determined in those proceedings which are binding on them and AHEPA NSW, or reverse findings made in those proceedings which also bind them, or a mixture of the two.
In response, Mr Corsaro rightly points out that the Gouros' parties submissions lead to results that could only be described as startling and incongruous. First, they have the consequence that, despite the parties' agreement as to the identity of the 13 Chapters that I noted in AHEPA 2016 and the declarations made in Lianos CA 4, the number of chapters of AHEPA NSW would have been not thirteen but five at the time of that agreement and those declarations. The result arises because then number of chapters would, they contend, have been reduced to five from the twelve that existed in about March 2015 when, first, the several chapters that supported the Grand Lodge of New South Wales separated from the National Lodge in April 2015 so that, the Gouros parties contend, they repudiated their charters; and, second, some members of Chapter Antigone No 8 broke away to form a new chapter, Chapter Antigone No 27, which they contend was an invalid chapter. It is both startling and incongruous that, where the Gouros parties' contend there were only five valid and operative chapters of AHEPA NSW from April 2015, all parties reached the agreement that I noted in AHEPA 2016 that there were 13 Chapters, including the invalid Antigone No 27. The Gouros parties respond with the equally startling response that that agreement did not refer to those of the Eight Incorporations which then existed, but instead to parallel unincorporated associations to the Eight Incorporations which, it appears, had no members. In consequence, again despite the results in earlier proceedings recognising the existence of 13 Chapters, the Gouros parties contend there are now only seven chapters of AHEPA NSW, comprising the five chapters which existed since 2015 and two additional chapters, a new Chapter Anatole No 7 to which a charter was granted by AHEPA Australia in November 2020 and a new Chapter Antigone No 27 to which a charter was granted on or around 8 March 2021.
Mr Corsaro also identifies an issue as to the extent to which an issue estoppel, res judicata or abuse of process prevents the litigation of matters that were or should have been raised in prior proceedings by the Gouros parties and I address that issue below. Mr Corsaro also refers to the principles applicable to res judicata, issue estoppel, Anshun estoppel (referring to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45), and to several authorities that deal with those principles. He submits that the two Defendants in AHEPA 2016, Ms Melas and Ms Alexandrou, were acting on behalf of themselves and all of the Gouros parties, by reason of the representative orders made in those proceedings. He submits that those proceedings squarely raised the question whether members of the Eight Incorporations (or those of them which were then incorporated) could validly vote at the then proposed special general meeting of AHEPA NSW; and that no contention was then put by the Defendants that the fact of incorporation of the Eight Incorporations (or those of them which were then incorporated) or their position vis-à-vis AHEPA Australia deprived them of the status of chapters of AHEPA NSW. Mr Corsaro also submits that the parties' agreement that I noted in AHEPA 2016 treated the Eight Incorporations as members of AHEPA NSW, although the description of them did not expressly refer to their incorporated status. I accept that proposition and also note that the agreement then reached between the parties plainly did not contemplate that a significant number of members of AHEPA NSW, associated with the Eight Incorporations, should be excluded from voting at the then proposed special general meeting. Mr Corsaro submits that none of these matters should now be available to be re-litigated by the Gouros parties in these proceedings.
Mr Corsaro also relies on the fact that, as I noted above, in Lianos CA 4, the Court of Appeal made declarations on the basis, as explained at [63] of that judgment, that there were 13 Chapters comprising AHEPA NSW and that the Eight Incorporations were eight of those Chapters. He submits that the Gouros parties seek to challenge that finding in these proceedings, although two of them, Messrs Gouros and Lianos, were parties to those proceedings, and another three of them, Mr Antonakos, Mr Alexandrou and Ms Alexandrou led evidence in those proceedings in support of the position put by Messrs Gouros and Lianos in those proceedings. He also submits that the declarations made by the Court of Appeal were made in rem, although I do not consider it necessary to decide that question, given the findings that I reach below on other grounds. He points to the fact that the appellants in those proceedings, including Mr Gouros and Mr Lianos, did not then raise any contention that the Eight Incorporations were not chapters of AHEPA NSW or that their charters had been repudiated, or that there were no longer 13 Chapters as the Court of Appeal had found, which depended on including the Eight Incorporations in that number.
Mr Corsaro also points to the Court of Appeal's observations in Lianos CA 4 as to the potentially adverse effect of the earlier orders that it had made in Lianos CA 1 on the workings of AHEPA NSW, including by their effect on the members of the Eight Incorporations and their delegates' ability to participate in the Committee of Management. He submits that, having regard to the Court of Appeal's decision in Lianos CA 4, I could not now find that events prior to August 2021 had resulted in any of the Eight Incorporations not being a chapter of AHEPA NSW.
In closing submissions, Mr Corsaro expands these submissions as follows: [f]irstly, it is not open to the Court in these proceedings to question what was in the minds of the judges of the Court of Appeal in making their findings in Lianos [CA] 4, and therefore consider whether they proceeded by way of misapprehension of facts or otherwise. If the [Gouros parties] wished to advance a contention that there was a misapprehension of facts by the Court of Appeal, the proper course was to seek to re-open [those proceedings] and have the Court of Appeal revisit its findings or to appeal the decision. Not only is the course adopted by the [Gouros parties] in these proceedings entirely antithetical to the principles of finality, but it amounts to a collateral attack on a finding of fact in other proceedings, which the Court of Appeal found amounted to an abuse of process in Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258. Secondly, the Court is not in a position in these proceedings to second-guess the basis upon which the Court of Appeal made certain factual findings. While the [Gouros parties] have invited the Court to do so, they have not put before the Court all of the evidence, submissions and other material that was before the Court of Appeal that would have invariably informed the Court's decision in Lianos [CA] 4. Thirdly, the notion that the Court of Appeal merely made an assumption or proceeded on a misapprehension of facts in respect of the [Eight Incorporations] is untenable when one considers that the Court of Appeal specifically questioned the Appellants' counsel on this issue. Further, the Court of Appeal's findings of fact at [63] and [65] in particular were central in the Court of Appeal's reasoning to set aside part of the Court's earlier orders. As identified at [65], the Court of Appeal was conscious of the effect that the Court's original orders would have on the inner workings of [AHEPA NSW] by reference to its impact on the members of the [Eight Incorporations], and their ability to have their representatives participate in the Committee of Management. That necessarily entailed a consideration of what the Chapters of [AHEPA NSW] were and what the status of the [Eight Incorporations] was. That could hardly have been an afterthought. There would otherwise have been no basis for the Court of Appeal's decision in Lianos [CA] 4. Fourthly, despite vigorously opposing the re-opening application, the Appellants in the [Court of Appeal proceedings] did not raise any contention that the [Eight Incorporations] were not chapters of [AHEPA NSW], or that their charters had been repudiated in April 2015, or that there were no longer 13 Chapters of [AHEPA NSW]. That is apparent on the face of the record. Were any of those matters to have been contentious, it could and should have been squarely raised at that juncture by the Appellants. Fifthly, the Appellants in the [Court of Appeal proceedings] include two of the plaintiffs in these proceedings - Mr Gouros and Mr Lianos - who are bound by the decision and the conduct of their counsel, specifically in respect of the concession that the [Eight Incorporations] were part of the 13 Chapters identified above. Furthermore, another three of the plaintiffs in these proceedings - Demetrios (Jim) Antonakos, Maria Alexandrou, and Anthony Alexandrou - gave evidence in [Lianos 2019]. The Court would not allow those parties to have sat on the sidelines in those proceedings only to now advance arguments for contrary and inconsistent findings. … Sixthly … the declaration of the Court of Appeal concerning the construction and interpretation of r 3 of the 2018 Rules was plainly made in rem."
In reply, Mr Pritchard submits that issues of abuse of process, issue estoppel and res judicata could only arise in relation to the issue of eligibility for membership (and financial membership) of AHEPA NSW and not the separate issue as to the composition of the Committee of Management of AHEPA NSW as provided under rule 15(1) of the 2018 Rules including the meaning of "Grand President" and "District President" as appearing in that rule. I accept that submission in dealing with that separate issue below.
Mr Pritchard also repeats the submission that the declaration made in Lianos CA 4 only binds the parties to the proceeding, where no representative order was made before Rees J or in the Court of Appeal, and submits that only two of the Gouros parties, the First and Third Plaintiffs, Messrs Gouros and Lianos, were parties to Lianos 2019 and in the Court of Appeal in Lianos CA 1 and Lianos CA 4. He submits that, consequentially, five of the Gouros parties were not parties to those proceedings although I have referred above to the fact that three of them gave affidavit evidence in support of Messrs Lianos' and Gouros' claim in those proceedings. I address the circumstances in which principles of abuse of process extend to re-litigation by non-parties to earlier proceedings below.
Mr Pritchard also points to the fact that the Court has made representative orders in these proceedings so that the Gouros parties represent all relevant persons associated with their faction, which he submits includes people who were not parties to or did not give evidence in or were not aware of the prior proceedings or who were not members at the time of the prior proceedings. There is no evidence as to whether anyone who will be bound by the representative order was not (or is not now) aware of the prior proceedings or their outcome, and Mr Pritchard does not explain why a new member of AHEPA NSW in the same faction as the Gouros parties should be entitled to re-litigate the earlier proceedings if the Gouros parties are not entitled to do so, with the result that this issue could be litigated for as long as and as many times as there are new members of that faction who wish to do so. I do not understand the basis of any suggestion that it is unreasonable that, if I find these proceedings are an abuse of process when brought by the Gouros parties, others in the same faction who are within the representative order are also bound by that result.
Mr Pritchard emphasises, and I accept, that the case law indicates that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution and only in the most exceptional or extreme case, and that the onus of satisfying the Court that there is an abuse of process lies on the party alleging it and the onus is "a heavy one": O'Shane v Harbour Radio (2013) 85 NSWLR 698; [2013] NSWCA 315 ("O'Shane") at [111], citing Williams v Spautz (1992) 174 CLR 509 at 529. Mr Pritchard also addresses other case law relating to the circumstances in which re-litigation, or a collateral attack on the result in earlier proceedings, may be an abuse of process and I address that case law below.
In reply, Mr Pritchard also cites Rees J's judgment in Lianos 2019 at [1] for the proposition that the issues in that proceeding concerned "whether the constitution of AHEPA NSW was validly amended at a meeting in November 2018 and whether resolutions passed at subsequent meetings in accordance with the new constitution - concerning AHEPA NSW's participation in redeveloping Bexley Bowling Club, about which its members are sharply divided - were also valid" and, if there was a problem with how the constitution was adopted in November 2018 and subsequent resolutions, whether orders should be made under s 1322(4) of the Corporations Act declaring that those resolutions were valid.
Mr Pritchard then refers to the issues in these proceedings and submits that "[t]he issues [now] before this Court are different and have nothing to do with any ultimately invalid general meeting in 2018 or the proposed amendment to the 2018 Rules." That proposition is strictly correct so far as the Gouros parties now frame the relief they seek in different terms to that sought in Lianos 2019, but incorrect so far as the matters that they now raise, had they been put in Lianos 2019 and been correct, would have been a complete answer to the relief sought by AHEPA NSW in Lianos 2019, since they would have the consequence that the members of the Eight Incorporations who had voted at the general meeting in 2018 were not entitled to do so. AHEPA NSW's entitlement to the relief sought in Lianos 2019 necessarily depended, in part, on whether the 13 Chapters identified in the agreement between the parties that I noted in AHEPA 2016 included the Eight Incorporations, so that their members were entitled to vote at least at the special general meeting that was in issue in that case. I recognise that the case now put by the Gouros parties was not then put by Messrs Lianos, Gouros and Kypreos and, as I noted above, they there relied on the evidence of Mr Antonakos that treated the 13 Chapters as including the Eight Incorporations. However, it seems to me that the case now put should have been raised in Lianos 2019, if it was to be put, and the status of the Eight Incorporations as chapters of AHEPA NSW was in any event squarely raised and addressed when those entities sought to be heard in the appeal and was determined in Lianos CA 4.
Mr Pritchard also submits, in reply, that there is no relevant oppression or unfairness to the Defendants even if the issues are re-litigated, where the Defendants made no prior stay application; "no material burden or additional cost and expense" is apparent in re-litigating the issue; and the issue is ready and able to be dealt with on a final basis. Mr Pritchard also submits, by bare assertion, that there is no adverse impact of that re-litigation upon the principles of finality of judicial determination and public confidence in the administration of justice; and that: "the overall balancing of justice, in the exercise of the Court's discretion, especially in the representative order context, favours the determination of the issues in these proceedings and weighs against matters supportive of any abuse of process."
I do not accept this submission. First, the fact that AHEPA NSW did not seek a stay of the proceedings does not assist the Gouros parties, where there were numerous additional issues in these proceedings until they narrowed to the three remaining issues in the course of the hearing. Until the other issues were resolved, a stay application would have had little or no prospect of success where the proceedings would go to hearing on the same evidence in respect of those other issues, although they might have been determined in part by reference to principles of abuse of process. Second, it seems to me that a party has a proper expectation of the finality of matters determined by final hearings, particularly at the appellate level, and suffers a real loss if that expectation is frustrated. Third, it seems to me that the principles of finality and public confidence would be undermined by the approach the Gouros parties here adopt, a fortiori where its consequence would be that a single judge at first instance would, in effect, reverse the orders made by a unanimous Court of Appeal in Lianos CA 4 and the express basis on which they were made, as to the question whether the 13 Chapters include the Eight Incorporations. I address the wider balancing issue arising here in the analysis below.

The principles as to abuse of process and their application

Returning now to the applicable principles, the case law indicates that an abuse of process can be established even if an issue estoppel or res judicata would not here be established where there is a significant overlap, but not an identical equivalence, between the plaintiffs who bring these proceedings and those who brought the earlier proceedings that culminated in the decisions in Lianos CA 1 and Lianos CA 4. In State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 81-423 ("Stenhouse") at 64,089, Giles CJ Comm D identified several matters as relevant to determining whether a proceeding is an abuse of process on the re-litigation ground, observing that: "[i]t is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of the administration of justice, and amongst the matters to which regard may be had are: (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process."
These considerations have also been cited as relevant to determinations of abuse of process on the re-litigation ground in, inter alia, Commissioner of State Revenue v Mondous (2018) 55 VR 643; [2018] VSCA 185 ("Mondous") at [116], 1 v Shad Legal Services Pty Ltd [2021] NSWCA 258 at [43] ("Hana") and Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 at [495].
In Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110, Handley JA noted (at [26]) the scope of principles of issue estoppel as stated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-532: "[a] judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."
In deciding whether a party who had been unsuccessful in a claim for property damage could then bring a person injury claim, Handley JA pointed to common features of the earlier and later cases, involving the same factual allegations and common solicitors acting for the plaintiff in the two claims and held (at [50]) that: "[i]n these circumstances the attempt to re-litigate these simple issues of fact was an abuse of process even if for some reason the defence of issue estoppel is not available: See Wall v Radford [[1991] 2 All ER 741]. It has long been established that proceedings which seek to re-litigate some question which technically is not covered by an issue estoppel may be stayed or dismissed as an abuse of process: See Reichel v Magrath (1889) 14 App Cas 665."
Mr Corsaro refers to the summary of the principles by which a collateral attack on an earlier decision is an abuse of process, as summarised by Morritt VC in Secretary of State for Trade and Industry v Bairsdow [2004] Ch 1 at [39] and approved by Bryson JA in Cleary v Jeans (2006) 65 NSWLR 355; [2006] NSWCA 9 at [45], where Morritt VC held that: "[i]n my view these cases establish the following propositions. (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court … (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."
In Ann Street Mezzanine Pty Ltd (in liq) v Beck (2009) 175 FCR 532; [2009] FCA 333 ("Ann Street") at [33]-[34], Finkelstein J also observed that: "…if a person stands by and waits to see the outcome of a case in which he has a distinct interest without making himself a party, he is be bound by the result and is not allowed to re-open the issue in another piece of litigation. This principle is derived from the speech of Lord Penzance in Wytcherley v Andrews (1871) LR 2 P&D 327 at 328; cited with approval in Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 at 102. More generally, it may be accepted that any attempt to re-litigate an issue may be an abuse. But there must be some "special reason" that prevents a person raising an issue that has been decided by another court but by which he is not strictly bound: Bragg v Oceanus Mutual Underwriting Assoc (Bermuda) Ltd [1982] 2 Lloyd's Rep 132 at 138. Hence, in Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482 [("Bradford")] at 1492 Auld LJ said the mere attempt to re-litigate does not necessarily give rise to an abuse of process. Some additional element is required, such as a collateral attack on a previous decision as in Hunter [v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727], some dishonesty, or successive actions amounting into unjust harassment: Bradford [1999] 1 WLR at 1493."
Those paragraphs were cited with approval in Tyne (Trustee) v UBS AG (No 2) (2017) 341 ALR 415; [2017] FCAFC 5 ("Tyne") at [85] and again in Lianos CA 4 at [23]. It seems to me that, here, the other members of AHEPA NSW aligned with Messrs Lianos and Gouros can fairly be said to have had a distinct interest in the matters addressed at first instance in Lianos 2019 and on appeal in Lianos CA 1 and Lianos CA 4, to have stood by while those matters were determined, and now seek to take advantage of the fact that a representative order was not sought or made in Lianos 2019 or the subsequent decisions of the Court of Appeal so as to bind members in the same interest as Messrs Lianos and Gouros by the outcome of those proceedings.
Mr Pritchard also refers to the Court of Appeal's decision in O'Shane, where Beazley P observed (at [105]) that: "[t]he relevance, for present purposes, of an abuse of process not being dependent upon the existence of an estoppel, is that a court may intervene to prevent an abuse, notwithstanding that the subsequent proceedings are not between the same parties or their privies. As the authorities state, the court will act upon an abuse of process where the use of the court's procedures would bring the administration of justice into disrepute."
The President also there referred to Stenhouse and observed (at [106]) that that case: "involved an attempted relitigation of an issue that had already been decided between the plaintiff and a third party in an earlier proceeding. Factors considered (at 64,089) by Giles CJ Comm D in determining whether there was an abuse relevantly included: the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated, the impact of the relitigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties."
I have also referred above to the President's observation (at [111]) that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution, and that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that that onus is a heavy one.
In Re HIH Insurance Ltd (in liq), De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1; [2014] NSWSC 774 ("HIH") at [59], also cited in Lianos CA 4 at [23], Brereton J in turn approached a similar issue by reference to principles of Anshun estoppel, observing that: "a person who was not party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening. In my view, in Australia these cases are best explained as a sub-species of Anshun estoppel; such that where a given matter becomes the subject of litigation and adjudication, the court requires not only the parties to bring forward their whole case, but other persons with a sufficient interest also to do so. Short of privity in the strict sense, there will be sufficient identification where there is control of one by the other - because it is offensive to the efficient administration of justice for a party who could have caused others with a similar interest to join in the proceedings to refrain from doing so and then seek indirectly to relitigate the issue through a controlled entity. In addition, the requisite relationship will be taken to exist where there has been what Lord Hobhouse called an "order for the marshalling of litigation", because where a court has put in place arrangements to facilitate the quick, just and inexpensive resolution of complex related litigation, it is offensive to the administration of justice that a person involved in those arrangement subsequently be able to circumvent them.... However, the existence of the requisite identification is not of itself enough; as with the more familiar form of Anshun estoppel, a non-party will be precluded from later litigating the issue only where it was unreasonable to stand by without intervening in the earlier proceedings."
Mr Pritchard submitted (T165, T172) that the approach taken by Brereton J in HIH had not been accepted by the Court of Appeal in Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 ("Ekes"), which had distinguished between Anshun estoppel on the one hand and abuse of process on the other. Even if Brereton J was incorrect in characterising the matters to which he refers as a sub-species of Anshun estoppel, it seems to me that the matters to which he referred are still relevant to identifying whether an abuse of process exists in a particular case. I return to the application of those matters in this case below.
Mr Pritchard also draws (T168) attention to the three forms of estoppel that may result from a final judgment in an adversarial proceeding, as recognised by the plurality in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 ("Tomlinson") at [22]ff. Mr Pritchard also refers (T169) to the majority's observations in Tomlinson (at [25]-[26]) that: "[a]buse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel [citing Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Reichel v Magrath (1889) 14 App Cas 665 at 668; Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 443 [25]]. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel [citing O'Shane at 722-724 [99]-[111]; Reichel v Magrath (1889) 14 App Cas 665; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 at 185 [25], explaining Johnson v Gore Wood & Co [2002] 2 AC 1]."
Mr Pritchard also refers (T169) to the plurality's explanation of the concept of privity in respect of an estoppel (at [40]) as follows: "[t]raditional forms of representation which bind those represented to estoppels include representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding [citing Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 423-424]. To those traditional forms of representation can be added representation by a representative party in a modern class action [citing Zhang De Yong v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 at 399-406]. Each of those forms of representation is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding."
In Mondous, McLeish JA (Niall JA relevantly agreeing, and McDonald AJ agreeing) referred to Tomlinson and observed (at [114]-[115]) that: "[t]he principal authority to which the joint judgment referred in stating the second of the above propositions was [O'Shane]. In that case, Beazley P (with whom McColl JA and Tobias AJA relevantly agreed) canvassed a series of authorities in which it had been sought to relitigate an issue already the subject of finalised proceedings. She observed that those cases either involved the same parties as in the earlier proceeding or, where there was only one party common to both proceedings, that party had lost the issue sought to be relitigated in the subsequent proceeding. The point had been emphasised by Heydon JA in R v O'Halloran [(2000) 159 FLR 260], who stated that there 'cannot be "re-litigation" if there has not been litigation'. However, Beazley P did not take Heydon JA to be deciding that the failed party in the earlier proceeding must necessarily be a party to the later proceeding in order for any abuse of process argument to be made. As she pointed out, the categories of abuse of process are not closed." At the same time… the fact that the party seeking to litigate an issue in later proceedings was not a party in the earlier proceeding where the issue was previously decided will be relevant to identifying whether the later proceedings are an abuse of process and may tend against a conclusion to that effect." [citations omitted]
Mr Pritchard also refers to Hana, where the Court of Appeal held that a Statement of Claim was an abuse of process where it was premised on a factual issue which was resolved adversely to the applicant in earlier proceedings and the findings contended for in that Statement of Claim were directly inconsistent with, and amount to a collateral challenge to the correctness of, the Court of Appeal's finding on the ultimate issue in those earlier proceedings. He emphasises the observations of Payne JA in Hana (at [43]) that: "[a] useful non-exhaustive list of considerations which may inform a finding of abuse of process is set out in Stenhouse. As noted by Beazley P in O'Shane at [107], the approach in Stenhouse was approved by this Court in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142; it has been applied on a number of occasions since: see e.g. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Foukkare v Angreb Pty Ltd [2006] NSWCA 335; Abriel v Levitt [2004] NSWCA 258." His Honour then cited the observation of Giles CJ Comm D in Stenhouse and the identification of relevant factors to which I referred above.
I pause to note, by reference to the matters arising in Hana, that the present proceedings involve an overlap of parties and witnesses with the proceedings in Lianos 2019, Lianos CA 1 and Lianos CA 4, rather than exactly the same parties. However, it seems to me that the claim now put by the Gouros parties is premised on the proposition that the Eight Incorporations are not chapters of AHEPA NSW, where the evidence on which they relied in support of the Originating Process in Lianos 2019, which was also before the Court of Appeal in Lianos CA 1 and Lianos CA 4, proceeded on the contrary basis and where the Court of Appeal explained the orders that it made in Lianos CA 4 on the contrary basis. To that extent, the findings now sought by the Gouros parties are inconsistent with, and amount to a collateral challenge to, the orders made by the Court of Appeal in Lianos CA 4, as construed by reference to the explanation which the Court of Appeal had given of the basis for those orders.
The Court of Appeal also provided a full summary of these principles in Lianos CA 4 at [20]ff as follows: "… there are situations where a person may be precluded from litigating a claim that has or could have been litigated in earlier proceedings, albeit that the person in question was not a party to those proceedings and there is no res judicata or issue estoppel binding the person. Thus, where a person, who has an interest in proceedings and who knows of the proceedings, and who could intervene in the proceedings and apply to be made a party, stands by to see the battle fought by someone else in the same interest, that person should not be afforded the opportunity of a second chance and should be bound by the result. Such a principle is founded on justice and common sense. If the Court is satisfied that everything has been done bona fide in the interests of persons who subsequently seek to disturb the result, the Court should not allow the matter to be reopened. Thus, a person who was not a party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not a privy in the strict sense of a party in the earlier proceedings. If the person is sufficiently identified with a party to the earlier proceedings and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening, the person may be prevented from relitigating the question. The principle will apply in any proceedings if the subsequent litigant conducted, controlled or managed the earlier proceedings or the other party to the proceedings was induced to believe that the suit was sufficiently constituted by the subsequent litigant. That is to say, where a given issue is raised in litigation for adjudication, the parties ought to bring forward the whole of their case and, if one of them fails to do so, in circumstances where it was unreasonable not to do so, the person may thereafter be estopped from raising the issue in later proceedings. If a person stands by and waits to see the outcome of a case in which that person has a distinct interest and does not seek to become a party, any attempt to relitigate an issue may be an abuse of process. Thus, it is an abuse of process to initiate proceedings in a court for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff that has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. It is contrary to the efficient administration of justice for a party who could have caused others with a similar interest to join in proceedings to refrain from doing so and then seek, indirectly, to relitigate the issue through another entity controlled by the person. It is contrary to the quick, just and inexpensive resolution of litigation and offensive to the administration of justice for a person to circumvent such principle by, in effect, suing through a different controlled entity. The question depends upon reasonableness. On the other hand, merely attempting to relitigate the question does not necessarily constitute an abuse of process. Some additional element is required such as a collateral attack on a previous decision, dishonesty or successive actions amounting to unjust harassment." [citations omitted]

Determination as to abuse of process in respect of the issue as to eligibility for membership (and financial membership) of AHEPA NSW

I am unable to grant the relief sought by the Gouros parties in respect of this claim, where I am comfortably satisfied that that relief is sought in abuse of process.
First, as I noted above, it seems to me that any contention that the Eight Incorporations were not chapters of AHEPA NSW, by reason of their history or their incorporated status, was a matter that could have and should have been raised by Messrs Lianos and Gouros in Lianos 2019 and in Lianos CA 4, where the identity of the chapters of AHEPA NSW could not be determined without determining that contention, if it was to be put. The matters that the Gouros parties now raise, had they been put in Lianos 2019 and been correct, would have been a complete answer to the relief sought by AHEPA NSW in that case, since they would have the consequence that the members of the Eight Incorporations who had voted at the general meeting in 2018 were not entitled to do so. The case now put by the Gouros parties was not then put by Messrs Lianos, Gouros and Kypreos and, as I noted above, they there relied on the evidence of Mr Antonakos that treated the 13 Chapters as including the Eight Incorporations. It is not apparent that any evidence led in this proceeding could not have been led in Lianos 2019, from which appeals were determined in Lianos CA 1 and Lianos CA 4.
Second, it seems to me that the members of AHEPA NSW in the same faction as Messrs Lianos and Gouros were sufficiently identified with them that it was unreasonable for them to stand by and allow the earlier proceedings to be determined on that basis without intervening, or a representative order being made so they would be bound by the result of those proceedings. That factor has particular weight given the complexity of the earlier proceedings and the multiplication of litigation concerning AHEPA NSW.
Third, the status of the Eight Incorporations as chapters of AHEPA NSW was in any event squarely raised and addressed when those entities sought to be heard in Lianos CA 4. The identification of the chapters that formed part of AHEPA NSW was plainly an important issue in Lianos CA 4, with real significance for the respondents including Messrs Lianos and Gouros; the Eight Incorporations which had intervened in the Court of Appeal and been permitted to reopen the judgment delivered in Lianos CA 1; AHEPA NSW; and those of AHEPA NSW's members who would be excluded if the Eight Incorporations were not chapters of AHEPA NSW. The question whether the Eight Incorporations were chapters of AHEPA NSW was also essential to their standing to be heard in Lianos CA 4, since they put their standing to be heard on the basis that they were chapters of AHEPA NSW and not strangers to it. Messrs Lianos and Gouros there contested the Eight Incorporations' standing to be heard in the appeal on the basis that the Eight Incorporations were not individual members of AHEPA NSW, and not on the basis that they were not chapters of AHEPA NSW by reason of their history or incorporated status, or that their members (or financial members) were not members (or financial members) of AHEPA NSW. Messrs Lianos and Gouros and the Eight Incorporations there had and took the opportunity to litigate that issue, and the Court of Appeal made declarations that determined that issue, and explained the basis on which they did so including that the Eight Incorporations were chapters of AHEPA NSW, the proposition that the Gouros parties now seek to contradict in this proceeding.
Fourth, there seems to be a substantial adverse impact on AHEPA NSW and the Eight Incorporations and on the administration of justice from a re-litigation of the issue in these proceedings, where no attempt is made to justify it beyond the fact that the Gouros parties, two of which were party to the earlier proceedings and three more of which gave evidence in them, apparently disagree with the declaration made by the Court of Appeal in Lianos CA 4 (as properly construed) and the basis on which it was made, and that adverse impact is exacerbated by the long history of litigation between the two factions within AHEPA NSW. It seems to me that the balance of justice plainly favours finality here, and the more so where each earlier judgment has not quelled the disputes between those factions, but merely served as the starting point for the next dispute between them.
Pausing here, I am satisfied that it is an abuse of process for the Gouros parties to reagitate the correctness of the declaration made in Lianos CA 4 (as properly construed) and the basis of that declaration, so far as it impacts on membership requirements for AHEPA NSW in respect of members of the Eight Incorporations, and in doing so to invite me to accept some parts of the Court of Appeal's judgments in Lianos CA 1 and Lianos CA 4, disregard or reject other parts of those judgments and then reach the opposite conclusion to the Court of Appeal as to whether the Eight Incorporations are chapters of AHEPA NSW and their members (and financial members) are members (and financial members) of AHEPA NSW, where there is a substantial overlap between the parties and persons involved in Lianos 2019 and in the Court of Appeal in Lianos CA 1 and Lianos CA 4 and the parties to these proceedings.
Fifth, the abuse of process in this respect extends to a dispute as to whether the members of the Eight Incorporations can be financial members of AHEPA NSW, where there is no relevant distinction between the question whether the members of the Eight Incorporations are members of AHEPA NSW and whether they can be financial members of AHEPA NSW. The Gouros parties did not contend that, and I can see no basis for a contention that, the concept of a "financial member of the unincorporated association" within the meaning of rule 3 of the 2018 Rules could be read inconsistently with the concepts of "member of the unincorporated association" and "unincorporated association" in that rule. As I have noted above, the Court of Appeal made its declarations in Lianos CA 4 on the basis that the 13 Chapters included the Eight Incorporations and that the members of AHEPA NSW included the members of those chapters, and the consistent use of the term "unincorporated association" has the necessary consequence that financial members of the Eight Incorporations are also financial members of AHEPA NSW.
Sixth and finally, I proceed on the basis that there exists a discretion whether to apply the principle of abuse of process here, although there is an open question as to that matter in respect of issue estoppel: O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258; Young v Annis-Brown t/as Lincoln Smith & Co [2011] NSWSC 890 at [12]. In my view, that discretion should be exercised to decline to permit re-litigation, in this case, of whether the 13 Chapters include the Eight Incorporations and its implications for their members (and financial members), where that matter was addressed by the Court of Appeal in making the declaration made in Lianos CA 4, given the extent of overlap in the underlying facts, the issues raised, the time and costs which have already been devoted to agitating those issues, and the public interest in promoting the finality of judgments and avoiding the parties and the community devoting further resources to the relitigation of matters which have been the subject of earlier proceedings and the appeals: Young v Annis-Brown t/as Lincoln Smith & Co at [16].

Non-joinder of necessary parties in respect of the issue as to eligibility for membership (and financial membership) of AHEPA NSW

I am also unable to grant relief to the Gouros parties in respect of this claim, where that relief is directed to the exclusion of individual members of the Eight Incorporations who have not been joined as party to these proceedings and who would not have been appropriately bound by appointing AHEPA NSW to represent them, for the reasons I set out in my ex tempore judgment declining to make such an order, to which I return below.
In the course of this hearing, the Gouros parties sought an order that AHEPA NSW: "be appointed to represent itself and all persons who assert that they are members of [AHEPA NSW] and either members or financial members of a chapter and who are not represented by Mr Gouros."
I declined to make an order in that form, for the reasons set out in an earlier ex tempore judgment, where I observed that: "[a]s I have noted above, it seems to me that the relief here sought has a particularly personal character, where members who are deprived of membership would be deprived of a personal right. There are real discretionary reasons why that should not occur, without those members at least having the opportunity to determine whether they wish to advance personal circumstances, or facts that are individual to them, or discretionary bases to resist the relief claimed against them. There is no suggestion on the evidence as it stands, that AHEPA NSW or the Eight Incorporations has investigated those matters, and there is indeed, as it stands, no evidence that individual members have been notified that a potential consequence of these proceedings is that they will be excluded from membership without having had an individual opportunity to be heard before the Court as to whether that should occur."
I also there noted the possibility of an alternative form of representative order, namely that a member of each of the Eight Incorporations be appointed to represent the interest of all members of that incorporated chapter. That approach would at least have allowed one member of each of the chapters whose members the Gouros parties seek to exclude from AHEPA NSW to address the particular history of that chapter and the circumstances of its members, by evidence and submissions, in a manner that AHEPA NSW had not done, possibly subject to the need to provide for the costs incurred by those representative members. As Mr Pritchard accepted in closing submissions, the Gouros parties did not take up the possibility of a representative order in that form (T203).
Turning now to the applicable case law, in News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 ("Super League case") the Full Court of the Federal Court observed (at 298) that "[a]n order which directly affects a third person's rights against or liabilities to a party should not be made unless that person is also joined as a party". The Full Court observed (at 298-299) that the relevant test: "… involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent… The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential."
In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[132], the High Court referred to the decision of the Full Court of the Federal Court in the Super League case and held that an order with a direct effect on the legal rights of another person, in that case the interests of a person claiming an interest in land which would be deprived of that person's rights if indefeasible proprietary rights were created in favour of a party to the litigation, should not be made without that person being heard.
In Lianos CA 4 at [24], Emmett AJA in turn observed that: "[w]hile the rule requiring interested persons to be joined as parties to proceedings rests on general principles of natural justice, the rule is relaxed when the number of persons is so large as to make joinder unwieldy. For declaratory relief to be granted, it is not necessary for every affected person to be a party to the proceedings. It is necessary only that the interests of every affected person are adequately presented. Where the class of persons interested is too large for all members to be made parties, one or more of the class may be appointed to represent the whole class." [citations omitted]
I also should not reach the findings for which the Gouros parties contend as to this issue, where the individual members of the Eight Incorporations would be adversely affected by those findings and they were not joined as a party to the proceedings, and I held that it was not appropriate to make an order that AHEPA NSW (as distinct from, for example, a member of each of the Eight Incorporations) represent them in the proceedings.

The nature of the relief sought by the Gouros parties in respect of eligibility for membership of AHEPA NSW

The Gouros parties seek relief in the form of several declarations as to eligibility for membership of AHEPA NSW. The Court may, of course, make a declaration of right under s 75 of the Supreme Court Act 1970 (NSW) where, inter alia, the making of a declaration has practical utility. However, in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307; [1974] HCA 18 ("Neeta"), Barwick CJ and Jacobs J observed that a declaration should not be made where the consequences that flow from it may leave other issues between the parties undetermined and no other relief is sought, or where the suggested declaration is merely an anterior step to inevitable future litigation. That principle is not controversial, although it should not be applied too rigidly: see the cases cited in J D Heydon et al, Meagher, Gummow and Lehane's Equity, Doctrines and Remedies (LexisNexis, 5th ed, 2015) at [19-305].
First, the Gouros parties seek a declaration (3FAS [1]) that, for a person to be a "financial member of the unincorporated association" within the meaning of rule 3(1) of the 2018 Rules, that person needs to be a financial member of one of the chapters of the unincorporated association known as AHEPA Australia based in New South Wales. I will not make this declaration, where it would be inconsistent with the declarations made by the Court of Appeal in Lianos CA 4 on the basis that the 13 Chapters include the Eight Incorporations, and its consequences for the eligibility of members of the Eight Incorporations for membership of AHEPA NSW, and financial members of the Eight Incorporations for financial membership of AHEPA NSW, in a manner that I have found amounts to an abuse of process. Second, if this declaration had any effect, it would adversely affect the rights of financial members of the Eight Incorporations, by requiring AHEPA NSW to act in accordance with that declaration in respect of those persons' membership rights, where they are not party to the proceedings and have not had an opportunity to be heard and an order that AHEPA NSW represent them in respect of that claim was not made. On that basis, this declaration should not be made, consistent with the authorities to which I referred above.
Second, the Gouros parties seek a declaration (3FAS [2]) that the chapters of AHEPA Australia based in New South Wales are seven unincorporated associations and such other chapters of AHEPA Australia based in New South Wales which are established from time-to-time. I will not make this declaration, where it seeks a result that would be inconsistent with the declarations made by the Court of Appeal in Lianos CA 4 on the basis that the 13 Chapters include the Eight Incorporations in a manner that I have found amounts to an abuse of process.
Third, the Gouros parties seek a declaration (3FAS (3(a)] that none of the Eight Incorporations is a chapter of AHEPA Australia based in New South Wales. I will not make that declaration, for the same reason that I will not make the second declaration that they seek. The Gouros parties also seek a declaration (3FAS (3(b)] that none of the financial members of the Eight Incorporations is entitled to be a financial member of AHEPA NSW within the meaning of rule 3(1) of the 2018 Rules. I will also not make that declaration, for the reason noted above and because it seeks to determine the rights of financial members of the Eight Incorporations who have not been joined as party to the proceedings and where an order that AHEPA NSW represent those members in respect of that claim was not made.

The issue as to composition of the Committee of Management of AHEPA NSW

It is common ground (2FASC [A24]-[A25], Defence [24]-[25]) that rule 13(1) of the 2018 Rules provides that the "Committee of Management" is the governing body of AHEPA NSW and that rule 15(1) of the 2018 Rules provides that the Committee of Management is to be elected from specified "office bearers or members of the unincorporated association", including the "Grand President", the "District President" and a nominated member from "each chapter of the unincorporated association". It is also common ground (2FASC [A26], Defence [26]) that rule 15(2) of the 2018 Rules provides that the duly elected "Grand President of the unincorporated association" is automatically appointed as the President of AHEPA NSW and the duly elected "District President of the unincorporated association" is automatically appointed as the Vice-President of AHEPA NSW.
The Gouros parties plead (2FASC [A27]) that, on its proper construction, the expression "unincorporated association" as used in the phrase "office bearers or members of the unincorporated association" in rule 15(1) of the 2018 Rules and as used in rule 15(2) of the 2018 Rules means AHEPA Australia operating in New South Wales, relying on the decisions of the Court of Appeal in Lianos CA 1 at [134], [136]-[137], [139]-[143] and Lianos CA 4 at [49]. I have referred to the relevant paragraphs of those decisions above. The Gouros parties also plead (2FASC [A28]) that Part V, cl 1(a) of the 2010 Constitution of AHEPA Australia provides, relevantly, that within any State the State Lodge and, where existing, the District Lodge are the highest executive bodies of AHEPA Australia in each State and are directly responsible to the National Lodge. The Defendants deny (Defence [27]-[28]) these contentions.
The Gouros parties then contend (2FASC [A29] that there exists in NSW a State Lodge which, prior to the adoption by AHEPA Australia of the 2010 Constitution and at the time of establishment of AHEPA NSW, was known as the "Grand Lodge" and which has been so called since on or about 12 October 2012 ("NSW Grand Lodge") and a District Lodge ("NSW District Lodge"). The Defendants respond (Defence [29]) that there is a Grand Lodge of New South Wales, which is a part of AHEPA NSW; there was a District Lodge of New South Wales, but that was dissolved in 2015; and otherwise deny the paragraph. The Gouros parties also plead (2FASC [A30]-[A31]) and the Defendants deny (Defence [30]-[31]) that the officers of the NSW Grand Lodge include, relevantly, a State President who, prior to the adoption by AHEPA Australia of the 2010 Constitution and at the time of establishment of AHEPA NSW Inc, was known as the Grand President and the officers of the NSW District Lodge include, and have included at all material times from the establishment of AHEPA NSW, relevantly, a District President.
On this basis, the Gouros parties plead (2FAS [A32]) and the Defendants deny (Defence [32]) that: "on a proper constriction of rules 15(1) and 15(2) of the 2018 Rules: (a) the expressions "Grand President" and "Grand President of the unincorporated association" as appearing, respectively, in rules 15(1) and 15(2) of the 2018 Rules means the Grand President of the NSW Grand Lodge; and (b) the expressions "District President" and "District President of the unincorporated association" as appearing, respectively, in rules 15(1) and 15(2) of the 2018 Rules means the District President of the NSW District Lodge."
The Gouros parties in turn point (2FASC [A33], [A35]) to the different position put by AHEPA NSW in correspondence and in its Defence [32], [35]) as to these matters. I accept that there is a genuine dispute as to these matters. By reason of these matters, the Gouros parties contend and the Defendants deny (2FASC [A36], Defence [36]) that: "… neither the President nor any other officer or member of the Invalid Grand Lodge of NSW [as tendentiously defined by the Gouros parties] is the "Grand President" or "District President" within the meaning of rules 15(1) of the 2018 Rules."
The Court of Appeal addressed matters relevant to this issue in Lianos CA 4, where Emmett AJA referred (at [55]) to the consideration of rule 15 of the 2018 Rules in Lianos CA 1 and noted that: "… it would be nonsensical for membership of the Association to lapse under r 5(1)(d) of the 2018 Rules of the Association where a person became an 'unfinancial member' of 'the unincorporated association' unless all members were first required to be a financial member of the 'unincorporated association'. There is no provision for a separate register to be kept of members admitted under r 3(1), as distinct from members admitted under r 3(2). Fourth, under r 15 of the 2018 Rules of the Association, the Committee of Management of the Association is composed of office bearers of 'the unincorporated association' and persons nominated by Chapters of the 'unincorporated association'. If the membership of the Association were not the same as the membership of the unincorporated association, there would be members of the Association who have no say in the composition of the Committee of Management and no ability to be appointed to the Committee of Management."
His Honour then went on to observe (at [56]-[62]) that: "[c]learly enough, the Association operated after its incorporation in a manner suggestive of the existence of an "unincorporated association" that shared similarities with at least the State organisation of the 1990 AHEPA Australia Constitution and Regulations. There remained Grand Lodge Presidents and other office holders, who took office within the Association in accordance with the Association's Rules. That appeared to be in conformity with the 1990 AHEPA Constitution and Regulations. However, it might equally be in conformity with a State-based organisation carrying on independently of the overall AHEPA Australia framework, but retaining the same terminology. On the available evidence, it was correct to regard them not as independent entities, but rather as being subordinate to AHEPA Australia, at least in 1993. The significance is that it was artificial to consider the reference to the "unincorporated association" as meaning simply "the Chapters". It is equally artificial to consider "unincorporated association" as referring to "the Chapters" because it is apparent that an organisation, namely the Grand Lodge of New South Wales, continued to exist with office bearers that served as relevant office holders in the Association. It was clearly infelicitous to refer to the organisation that now includes the Grand Lodge of New South Wales as being Australia AHEPA Limited as the successor of AHEPA Australia, in circumstances where that organisation does not retain any reference to a Grand Lodge or the other features that were present in the 1990 AHEPA Constitution and the Regulations. The question of whether a Chapter is now a part of AHEPA Australia Limited or some unincorporated New South Wales variant of AHEPA Australia or something else, is not significant for the purpose of construing the 2018 Rules. All that matters is that there was some concurrently operating unincorporated association. That was all that was necessary, without going further, to resolve the construction issue at the heart of the dispute. Thus, for the purposes of the second reason noted above, it makes no difference, for the requirement that a person nominated by the secretary of a "Unit" of "the unincorporated association", whether "unincorporated association" means AHEPA Australia Limited or properly refers to a different, State based, association. The point is that the relevant provision assumed that a "Unit" was a Chapter located in New South Wales and that the secretary of that Unit would lodge the nomination with the Secretary of the Association as required by r 4(1)(b). For the third reason noted above, it makes little sense to regard the Association as a successor to an unincorporated association that ceased to exist upon incorporation, in circumstances where the Association's Rules make provision for situations where a person ceases to become a financial member of the unincorporated association. That indicates recognition of a persisting entity beyond incorporation, the membership of which being satisfied by membership of a New South Wales based Chapter. Similarly, for the fourth reason noted above, the Association is composed of specified office bearers of "the unincorporated association" and persons nominated by Chapters of the "unincorporated association". That is to say, there is some other unincorporated association in existence and it is the fact of its existence and significance to the workings of the Association that it makes sense to construe r 3(1) and r 3(2) as cumulative. If, as a review of the Constitution of AHEPA Australia Limited suggests, that organisation does not provide for the Grand Lodge President and other officers, there may well be another State based unincorporated association. It would be curious and artificial for AHEPA Australia Limited, as an organisation that does not have Grand Presidents and the like, to claim now that it does have such officers if there is some other unincorporated association in New South Wales that does have such officers and has done for some time. Those matters go beyond the scope of what was needed to resolve adequately the construction question. That is to say, irrespective of the identity of that "unincorporated association", r 3(1) and r 3(2) of the Rules of the Association should be construed as cumulative. It follows that any individual who was not a member of one of the 13 Chapters was not entitled to participate in or vote at the November Meeting."
It seems to me that this question does not give rise to an issue of abuse of process or any lack of necessary parties to the proceedings, as it was not previously determined by Rees J in Lianos 2019 or by the Court of Appeal in Lianos CA 1 or Lianos CA 4, although its resolution is largely consequential on matters that were there determined. Its determination would not result in the exclusion of members of AHEPA NSW who are not party to the proceedings from membership of financial membership of AHEPA NSW.
Mr Pritchard submits that, consistent with the findings in Lianos CA 4, the reference to "unincorporated association" in the 2018 Rules, including rules 15(1) and 15(2), refers to the operations of the unincorporated association, AHEPA Australia, in NSW. He also submits that the positions of "Grand President" and "District President" referred to in rule 15(1) of the 2018 Rules are the Grand President of the Grand Lodge of NSW and the District Lodge of NSW, which are bodies in the structure of AHEPA Australia, the unincorporated association. He also points to clause 20 of the 1990 Constitution of AHEPA Australia which provided, relevantly, for the "Grand President" to be a member of each State Grand Lodge, and clause 40 of the 1990 Constitution which provided that members of the Order of the Daughters of Penelope "may form a District Lodge in their State", and that the District Lodge shall be "governed by the same rules as those governing the Grand Lodges". Mr Pritchard also submits that there exist divisions within AHEPA Australia in NSW known as the Grand Lodge of NSW and the District Lodge of NSW. I have referred above to the evidence that, although those bodies ceased to exist from 2015 until 2019, they have now come back into existence, albeit in a manner that appears not to be authorised by the constitution of AHEPA Australia Ltd.
Mr Corsaro responds that the Grand Lodge and District Lodge no longer exist, and refers to documents relating to the creation of a National Lodge within AHEPA Australia at the 2015 National Convention (Ex J1, 4940ff) and the subsequent creation of AHEPA Australia Ltd (Ex J1, 5402ff) which he contends operated in place of rather than in parallel to AHEPA Australia, the unincorporated association. I have referred above to the evidence that the Grand Lodge and District Lodge were purportedly reinstated by AHEPA Australia Ltd from 2019.
Although Emmett AJA's analysis of this issue in Lianos CA 4 plainly has a degree of complexity, it seems to me that the Court of Appeal there relevantly found that the reference to "unincorporated association" in the 2018 Rules was to AHEPA Australia, or at least the chapters of AHEPA Australia, subject to the inclusion of the Eight Incorporations within that concept which I have addressed above. I do not take a different view. I accept that other organisations now exist within AHEPA NSW which could provide functional substitutes for the Grand Lodge and the District Lodge of AHEPA NSW, and that, apart from its endemic internal conflicts, it would likely be open to AHEPA NSW to amend the 2018 Rules to refer to those other bodies. However, absent an amendment of the 2018 Rules, it seems to me that AHEPA Australia's practice between 2015 and 2019 and the existence of other bodies within AHEPA NSW does not displace the conclusion that the reference to "unincorporated association" in rule 15 of the 2018 Rules remains a reference to AHEPA Australia or at least its chapters, again subject to the position as to the Eight Incorporations which I have addressed above, as distinct from either AHEPA Australia Ltd (the incorporated body) on the one hand or the other constituent bodies of AHEPA NSW on the other. It is not to the point, so far as the construction of that rule is concerned, that there are corresponding bodies in the structure of AHEPA NSW or that the parties have previously conducted themselves on a different basis.
The Gouros parties seek a declaration (3FAS [4]) in respect of this issue that, for the purposes of rule 15(1) of the 2018 Rules, the expression "Grand President" means the President from time-to-time of the NSW State Lodge, as described by reference to the AHEPA Australia Constitution; the expression "District President" means the President from time-to-time of the NSW District Lodge, as described by reference to the AHEPA Australia Constitution. I have referred above to the principles applicable to the making of declarations of right, and I allowed the parties an opportunity to make further submissions, after the conclusion of the oral hearing, as to the questions whether: "(1) [the Court] could make a declaration in respect of the second issue, namely the provisions relating to the management committee of AHEPA NSW where no substantive relief is sought in that respect and the suggested declaration is arguably an interior step to future litigation, having regard to the decision in [Neeta]; and (2) if substantive relief had been sought, for example by way of an order for specific performance of any agreement that specified persons should be the chair and deputy of the management committee, it would have been declined on discretionary grounds."
Only the Gouros parties took up the opportunity to make further submissions as to those matters. Mr Pritchard again referred to the procedural history of the proceedings and the narrowing of the issues that remain to be determined. He submits that the parties now seek to have the Court determine remaining issues "in the context of their continuing future mutual dealings" and that: "The parties all believe and contend that the declarations sought in respect of the issue of the composition of the Committee of Management are real and have significant practical utility in respect of their relationship going forward, that is, irrespective of whether or not, on the limited remaining issues in these proceedings, there are no orders for consequential relief."
Mr Pritchard also refers to my observation in Stewart v Spicer Thoroughbreds Pty Ltd [2022] NSWSC 558 at [56], by reference to Neeta that the Court should not generally make a declaration, even if it has jurisdiction to do so, unless it is satisfied both that the declaration sought is appropriate and that it has sufficient practical utility or where it would merely be prefatory to other relief. I accept that case could be distinguished, so far as the declaration there in issue related to criminal conduct, although the decision in Neeta to which it referred is of wider application.
Mr Pritchard submits that the declaration sought by the Gouros parties will "quell the ultimate dispute between the parties" as to the Committee of Management, because it will determine who is entitled to sit on the Committee of Management as, relevantly, the "Grand President" and the "District President". I will return shortly to the question whether the determination of those questions would likely instead be a precursor to further dispute as to how the Committee of Management would conduct itself if that declaration was made. Mr Pritchard also raised the possibility of the Court allowing the parties an opportunity, after judgment, to address the issue further in the light of the Court's reasons, including seeking further relief if appropriate. It seems to me that the history of continuing dispute between the parties tends against prolonging the proceedings in that way.
Mr Pritchard also submits that declining to make the orders sought would: "likely have the consequence that the parties would revert to their entrenched and diametrically opposed positions in relation to the membership of the Committee of Management." He also submits that that would risk deadlock or further substantive proceedings raising the same issues on the same evidence for determination by another Court at another time. Mr Pritchard did not submit that the Court could or would have granted substantive relief, for example by an order for specific performance, in respect of this issue had the Gouros parties sought such relief.
While I have accepted the Gouros parties' construction of these parts of the rule, I am not persuaded that I should make the declaration that they seek. Adopting the approach indicated by the High Court's decision in Neeta outlined above, that declaration would leave other issues between the parties undetermined, where no operative relief is sought as to this matter. The suggested declaration is merely an anterior step to likely further disputes if the Grand President of the NSW State Lodge or the President of the NSW District Lodge associated with AHEPA Australia then seek to preside over, or decide to convene or not convene, meetings of AHEPA NSW's Committee of Management as chair or deputy chair, where they plainly would not have the confidence of the majority of members of that committee. The Gouros parties did not seek specific performance of any obligation of AHEPA NSW or its members to comply with rule 15(1) of the 2018 Rules and, had such an order been sought, I would likely have declined it on discretionary grounds, where it would be inconsistent with the practice of the parties before AHEPA Australia's reversal of its earlier approach in 2019 and productive of the further dispute I noted above. It does not seem to me that the Gouros parties can be in a stronger position where they seek a declaration but do not seek substantive relief than if they had sought such relief. I will therefore not make the declaration sought by the Gouros Parties as to this issue.

The issue as to chapters of the unincorporated association

The Gouros parties also contend (2FASC [A37]) and the Defendants deny (Defence [37]) that, on a proper construction of rule 15(1) of the 2018 Rules, the "chapters of the unincorporated association" which are permitted to nominate a member for membership of the Committee of Management comprise one of the chapters of AHEPA Australia operating in NSW, and they again rely on the judgments of the Court of Appeal in Lianos CA 1 at [134], [136]-[137], [139]-[143] and Lianos CA 4 at [49]. They plead (2FASC [38]) and the Defendants deny (Defence [38]) that, by reason of the matters pleaded at 2FASC [A13]-[A19] and [A27], for the purposes of rule 15(1) of the 2018 Rules, the "chapters of the unincorporated association" which are permitted to nominate a member for membership of the Committee of Management comprise the AHEPA Australia chapters and any other chapter of AHEPA Australia based in NSW which is established in the future. I do not accept this proposition, where it is consequential on the contentions put by the Gouros parties which I have held to be an abuse of process above. The Gouros parties also point (2FASC [A39]-[A40]) to a contrary position put by the Eight Incorporations and plead that none of the nominees from the membership of the Eight Incorporations is a member of AHEPA NSW's Committee of Management for the purposes of rule 15(1) of the 2018 Rules. The Defendants largely deny that claim (Defence [39]-[40]) and also plead (Defence [42]) a wider defence of issue estoppel, res judicata and abuse of process.
This contention is again inconsistent with the declarations made in Lianos CA 4, construed by reference to Mr Antonakos' evidence on which they relied in Lianos 2019 and which was put before the Court of Appeal and the basis on which the Court of Appeal explained those declarations, namely that the 13 Chapters included the Eight Incorporations. The Gouros parties cannot establish this matter where its premise is advanced in abuse of process for the reasons noted above.
The Gouros parties also seek a declaration (3FAS [4(c)], in respect of this issue, that the expression "each chapter of the unincorporated association" under rule 15(1) of the 2018 Rules means each of the AHEPA Australia chapters. I will not make this declaration, where it also seeks to controvert the result reached by the Court of Appeal in Lianos CA 4, again in a manner that amounts to an abuse of process for the reasons noted above. It also should not be made where the members of the Eight Incorporations have not been joined and an order was not made that AHEPA NSW represent them individually in the proceedings, for the reasons noted above.

Order sought by the Gouros parties under s 175 of the Corporations Act

The Gouros parties seek an order (3FAS [5]) under s 175 of the Corporations Act that AHEPA NSW rectify the register of members of AHEPA NSW so as to give effect to these orders by including all persons who are financial members of each of the AHEPA Australia Chapters as notified by each of the AHEPA Australia Chapters; and excluding any other person.
I outlined the scope of s 175 of the Corporations Act in Re Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69 at [47] as follows: "[s]ection 175 of the Corporations Act provides, relevantly, that a person aggrieved may apply to the court to have a register kept by a company corrected and, if the court orders that company to correct the register, it may also order that company to compensate a party to the application for loss or damage suffered and to lodge notice of the correction with ASIC. That section replaced s 212 of the Corporations Law and it confers a continuing power to correct the register where, for example, an entry is omitted from it: Bon McArthur Transport Pty Ltd (in liq) (recs & mgrs apptd) v Lange [2007] NSWSC 1371. That section operates in parallel to, and arguably assumes the existence of, the court's equitable jurisdiction to rectify a register: Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51; Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 at 558-559. The authorities recognise that the applicant for rectification must show a personal equity that the court will protect; prima facie, such an equity is shown if a person's name is wrongly omitted from the register; however, the court has a broad discretion whether to order the correction of the register of members and may decline to order rectification if there is some reason why that should not occur: Grant above at 51. I summarised the relevant principles in Re Mogul Stud Pty Ltd [2012] NSWSC 1639 at [7] as follows: … That section does not itself confer a power to create a register, but assumes that the Court already has such a power at general law: Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1966) 20 ACSR 553; 14 ACLC 1089 at 1094. In the well known decision of Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51, Fullagar J pointed to the discretionary character of the power to order rectification of the register and to the fact that in equity warranty rectification would prima facie be established if a person's name was wrongly included or omitted from the register; the same principle is plainly applicable where, rather than the person's name being omitted, the number of shares attributed to that person is incorrectly recorded, so as to impose a disadvantage on that person or on other shareholders. The principles of rectification at general law are relevant, and those draw attention to where the position as recorded in a document reflects the common subjective intention of the parties: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [444] and following."
I will not make an order in the form sought by the Gouros parties. First, I have not made the declarations to which this order seeks to give effect. Second, this relief seeks to exclude, by amendment of the register, numerous persons from membership of AHEPA NSW where they presently are or claim to be members of AHEPA NSW. That relief has a direct effect on the rights of those individual members of AHEPA NSW, or at least those who fall within the Eight Incorporations who are now sought to be excluded from membership, and not only an indirect or consequential effect, just as the rectification of a company's share register to extinguish the shares of a shareholder has a direct impact on that shareholder's rights. Only the Eight Incorporations through whom those persons are or claim to be members of AHEPA NSW were joined as defendants in the proceedings and the individuals who would be affected by that relief were not, and as I noted above, I declined to make a representative order that AHEPA NSW represent those members where their individual rights as members were at risk. I also should not make orders adverse to the individual members of AHEPA NSW where they are necessary parties to the proceedings and were not joined to them and have not had an opportunity to be heard as to those orders.
The Gouros parties seek several orders (3FAS [6]-[9]) relating to a reference to determine those persons who should be excluded as members of AHEPA NSW by removing their names from the member register. I will not make that order where the basis for an order rectifying the register has not been established. I would also not make that order where, after eight or more earlier proceedings relating to disputes within AHEPA NSW and the hearing of these proceedings over several days, an order of that kind would unreasonably prolong the interminable disputes between the parties and should not be made on that basis.

Has the National Lodge ceased to exist?

Both parties briefly addressed this question in submissions. It is not apparent that it arises in respect of the pleaded claims or the relief sought and it is not necessary to decide it.

Orders and costs

My preliminary view is that there should be no order as to the costs of the proceedings up to and including 20 September 2023 when both parties were addressing wider issues which were subsequently displaced by events, including AHEPA NSW's determination not to challenge the termination of its lease over the Bexley Bowling Club by Bayside Council, to rescind the purported expulsion of Mr Gouros from membership of AHEPA NSW and its commitment to address membership applications in an agreed manner. My preliminary view is that the Gouros parties should pay the costs of and incidental to the proceedings on and from that date, which were largely directed to the pursuit of the claims on which they have failed. However, I will hear the parties as to costs if they seek to be heard.
I am also inclined to think that, given the multiplicity of litigation between the parties, the fact that several of the Plaintiffs have been involved in previous and substantially overlapping claims against AHEPA NSW, and the issues as to abuse of process that I have addressed above, I should also order that the several Plaintiffs in these proceedings not commence or continue any proceedings in any Court or Tribunal against any of the Defendants (other than by a claim in the nature of a defence, cross-claim or cross-summons or an appeal from this judgment) which arise from the same or similar facts as these proceedings without the leave of a Judge of this Court, unless and until the Plaintiffs have paid the costs of this proceeding, consistent with orders made in Idoport v National Australia Bank Ltd [2006] NSWCA 202 at [29], Pi v Zhou [2016] NSWCA 148, especially at [23], Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 at [57]-[61] and Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 at [26]ff. I will, of course, also hear the parties as to that matter.
I direct the parties to bring in orders that give effect to this judgment, including as to costs, within 14 days and, in the event of any disagreement between them, their respective short minutes of order and short submissions as to the differences between them.

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: 31 October 2023

Associations Incorporation Act 1984(NSW)

Associations Incorporation Regulations 2016(NSW)

Gouros & Ors v Order of AHEPA NSW Incorporated

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