ISLAMIC COUNCIL OF NSW & ANOR. V. THE AUSTRALIAN FEDERATION OF ISLAMIC COUNCILS & ORS. [2000] NSWSC 115 - NSWSC 2000 case summary — Zoe

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ISLAMIC COUNCIL OF NSW & ANOR. V. THE AUSTRALIAN FEDERATION OF ISLAMIC COUNCILS & ORS. [2000] NSWSC 115

[2000] NSWSC 115

Supreme Court of NSW|2000-03-02

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Source facts

Court

Supreme Court of NSW

Decision date

2000-03-02

Source

Original judgment source is linked above.

Judgment (76 paragraphs)

[1]

This matter has been raised at our last Management Committee meeting and Mr. Roude was asked to resign. He has since done so and a copy of his resignation is attached.

[2]

I would be very grateful to receive your advice as to wheter: 1. The action by Mr. Roude is considered a breach of DEETYA guidelines, 2. Our response is considered by DEETYA to have been appropriate, 3. This tender or future tenders by this organisation have been compromised. 19 Mr. Raza supplied a copy of the letter to the Shadow Minister for Employment, who raised the issue in Parliament, giving rise to some publicity. 20 On 5th March 1998, there was a meeting of the Executive Committee of ICNSW. In the morning prior to the meeting, Mr. Raza had spoken to Tony Stewart, the Member for Lakemba in the New South Wales Legislative Assembly, and obtained from him a copy of a reference given by Mr. Stewart to Khadar Roude in October 1996; and it appears that Mr. Stewart had told Mr. Raza that Ali Roude had come together with Khadar Roude when Khadar Roude sought this reference. I note that in evidence Mr. Ali Roude denied that he had gone with his brother to Mr. Stewart, and Mr. Stewart said in evidence that he now believed it was not Ali Roude who came to him with Khadar Roude on that occasion. 21 At the meeting on 5th March 1998, according to the minutes taken of that meeting, the Executive Committee made the following resolutions: 1. Letter to be written to DEETYA informing them that the letter of complaint by Mr. Wasim Raza is not endorsed by the Council, it contained inaccuracies, and that it is rather his personal opinion and not the view expressed by the Council.

[8]

To clarify their position the Executive Committee of the Islamic Council of NSW wishes to go on record as saying that the Council has never made any allegations in connection with tender to DEETYA to provide employment services. Nor is it the intention of the Council to make any allegations in connection with this matter in the future. 24 There was subsequent communications, but they did not in their ultimate effect alter the approach indicated in those letters. It appears that there was an investigation of the matter by the Department, but the outcome (as notified to Mr. Raza by the Commonwealth Ombudsman in a letter dated 22nd June 1999) was that the Department was "satisfied that Mr. Roude adequately met Departmental requirements on declaring conflicts of interest. I would comment that, on the material before me, it seems clear that Khadar Roude did not in fact meet those requirements, and the contrary was not submitted by the plaintiffs. This is not to say that, at the time of accepting the tender, DEETYA had any reason to suspect this. 25 It is necessary to go back in time here, to recount some matters in relation to Risallah College. In March 1997, a company limited by guarantee was incorporated to establish and manage an Islamic School. The school came to be called Risallah College, and the name of the company was in fact changed in March 1998 to Risallah College Limited. Clause 1(a) of the Memorandum of Association set out the object of establishing and managing this school, and went on to assert that the school was to be a subsidiary of ICNSW. 26 The subscribers to the Memorandum were Ali Roude and six others, four of whom were office bearers of ICNSW. By reason of being subscribers to the Memorandum, these persons thereby became members of the company (Article 3) and also Governors (that is, directors) until 31st July 2000 (Article 25). According to the Articles of Association, the trustees of the school, who were given extensive powers, were Ali Roude and two other named persons, to hold that office until 31st July 2017. Article 40(3) provided that members of the Executive Committee of ICNSW should not hold a salaried position or office of profit at the school. 27 On 14th August 1997, a joint meeting of the Executive Committee of ICNSW and the directors of this company purported to appoint Ali Roude full-time principal administrator, and to amend Article 40(3) to add the words "other than the position of Administrator/Principal". Since that time, Ali Roude has acted as full-time principal/administrator of the school, at a salary initially of $36,000.00 per annum and now of $40,000.00 per annum. 28 On 14th May 1998, Mr. Raza wrote to Ali Roude claiming that the amendment purportedly made at that meeting was not valid, inter alia because it had not been submitted to and approved by ICNSW in writing, as required by cl.6 of the Memorandum. 29 On 31st May 1998, there was a special meeting of ICNSW. The meeting discussed the tender problem, and also Ali Roude's appointment as principal of the school. A motion was put whereby delegates were asked to vote whether they had confidence in the Executive Committee. Before the votes were collected and counted, shouting and other noises disrupted the meeting. It appears that among other persons, Hassan Marhaba shouted to the effect that he wanted Ali Roude to stay and did not want the vote carried through. It appears that Ali Roude as Chairman proposed that the meeting be adjourned; and the meeting concluded without an adjourned date being set. It appears that the votes were destroyed. 30 During June and July 1998, there were letters of complaint written to AFIC by some member societies and/or representatives of such societies concerning this meeting and the situation concerning the school. 31 The Annual General Meeting of ICNSW was held on 26th July 1998. Ali Roude was elected Chairman, Gabr Elgafi Vice-Chairman, and the other office bearers elected were Mr. Softic (18th defendant), Mrs. Abdo, and Messrs. Toefy (16th defendant), Marhaba, Maseth, Genel (14th defendant) and Zreika (17th defendant). 32 In the latter part of 1998, Mr. Elgafi was requesting a meeting of the Executive Committee, complaining that such meetings were not being held and that he did not have access to information to which he should have access. On 22nd December 1998, Mr. Elgafi left Australia to travel overseas for some weeks. 33 On 6th January 1999, while Mr. Elgafi was overseas, there was a meeting of ICNSW. There is in evidence a notice dated 29th December 1998 of what the notice says to be "an up-coming special meeting" of ICNSW, apparently sent to member societies. The notice did not specify any business to be conducted at the meeting. It was not received by one member association, namely the Lebanese Muslims Association, until 4th January 1999. No notice was given to Mr. Elgafi or Mr. Marhaba. 34 At the meeting, there was a motion that the positions on the Executive Committee held by Mr. Elgafi and Mr. Marhaba be declared vacant, and this was carried. The meeting noted resignations by Mrs. Abdo and Mr. Softic, and four new members of the Executive Committee were elected, namely Messrs. Softic, Ismen (13th defendant), Sadien (20th defendant) and Beckric (19th defendant). 35 Solicitors acting on behalf of Mr. Elgafi wrote a number of letters alleging that Mr. Elgafi's dismissal was invalid, these letters being written between March and May 1999. 36 On 16th March 1999, AFIC wrote to ICNSW proposing a number of changes to the ICNSW Constitution, and seeking a response to those proposals. 37 The Annual Congress of AFIC was held between 2nd and 4th April 1999. On 4th April 1999, according to the minutes of the Congress, the following resolution was passed: On a motion moved by Abbas Ahmed and seconded by Yasser Soliman it was unanimously resolved that "The President of AFIC appoint Haset Sali of Queensland, Saleh Parkar of Tasmania and will appoint after discussion with Bilal and Dr. Sikander Khan, another person who will not be associated with Exco or the Councils. They will have one month to investigate complaints, one month to report and one month to implement the findings". 38 On 3rd May 1999, a notice was sent to members of the Executive Committee of ICNSW and the directors of Risallah College Limited of a meeting to be held on 23rd May 1999, to amend the Constitution. The notice refers to enclosed proposed amendments, but no such enclosure has been produced to the Court. The meeting was held on 23rd May 1999, and substantial amendments to the Memorandum and Articles of Risallah College Limited were passed, which would if valid have the effect of removing any control from ICNSW and entrenching control in the existing Governors and trustees. 39 On 20th May 1999, there was a letter from the Committee purportedly appointed by the Congress of AFIC to ICNSW, seeking submissions concerning the complaints which gave rise to the resolution at the Congress and seeking production of certain documents relating to those matters. 40 On 24th and 25th July 1999, the Committee took oral and written evidence in relation to the matters under investigation; and they produced a report dated 25th July 1999, in the following terms: Pursuant to the 1999 AFIC Congress resolution, this Committee has considered the written information and oral submissions of the interested parties involved in the ICNSW.

[32]

FACTUAL ISSUES Submissions 49 Mr. Whittle SC, who appeared for those defendants opposing relief and also for the cross-claimant, submitted that the Court should conclude that Ali Roude knew in advance of his brother's application. He prevaricated in the witness box. His brother was not called. Mr. Raza's evidence should be accepted, particularly as it was corroborated by Mr. Stewart's letter Exhibit D31. His subsequent conduct, along with that of the rest of the ICNSW Executive Committee, has been to frustrate any investigation of the matter, and to disregard any possibility of recovery of compensation from Khadar Roude. Mr. Whittle submitted that I should find Mr. Marhaba an unreliable witness, because I should reject his evidence that he signed the letter which is part of Exhibit D25 in blank. 50 Dr. Birch SC, who appeared for the plaintiffs, submitted that Ali Roude would not have been so naïve as to knowingly permit his brother to make a competing tender application: if it succeeded it would become public and this would then reflect on Ali Roude himself. His subsequent conduct reflected knowledge that his brother's conduct was indefensible. 51 Having regard to Mr. Stewart's oral evidence, a letter written by Mr. Stewart to the Commonwealth Ombudsman on 13th March 1998, in so far as it suggested prior knowledge by Ali Roude, had no weight whatsoever. In fact, Ali Roude's dealings with Mr. Stewart indicated complete confidence that Mr. Stewart's file notes would confirm that Ali Roude did not have dealings with Mr. Stewart indicating support for or knowledge of his brother's tender. 52 Dr. Birch submitted that the subsequent conduct of Ali Roude and the Executive Committee of ICNSW was entirely appropriate. Khadar Roude was sacked. The matter was investigated; the Executive Committee was entitled to accept Ali Roude's assurance that he had no prior knowledge of the tender; and the Committee was entitled to make the judgment that to have pressed for an enquiry would have brought about publicity which could harm the reputation of the Muslim community.

[33]

Decision 53 One unfortunate aspect of the dispute is that, in my opinion, all the protagonists have acted in what they think to be the best interest of the Islamic community in New South Wales. Although Ali Roude has a salaried position at Rissalah College, he left other employment to stay in that position, and I do not think he has been motivated by any consideration of personal gain. However, there are clear conflicts in the evidence, particularly between that of Ali Roude and Mr. Raza, which I must try to resolve. 54 As noted above, Mr. Stewart wrote a letter to the Commonwealth Ombudsman in March 1998, suggesting communications with Ali Roude which confirmed Ali Roude's prior knowledge and support of his brother's tender. However, Mr. Stewart's sworn evidence was to the effect that, in one respect he believed he was mistaken and in another respect he had absolutely no recollection of the matters set out in the letter. The difficulty was compounded by the circumstance that, as a result of a fire in his electoral office, Mr. Stewart's files relating to the matter had been destroyed. The letter was admitted into evidence under s.64 of the Evidence Act, as asserting matters which were fresh in Mr. Stewart's memory at the time he wrote the letter, the relevant matters being the content of certain files and a telephone conversation with Ali Roude some six months earlier. However, having heard Mr. Stewart's evidence, I find myself unable to draw any useful conclusion about the content of Mr. Stewart's files, and I am extremely doubtful whether the phone call said to be six months earlier was indeed fresh in Mr. Stewart's memory in March 1998. For those reasons, the letter carries little if any weight. 55 However, there are other matters which make me doubtful about Ali Roude's evidence. I note in his favour that he did go along with the dismissal of his brother, and it is fair to say that he could quite properly have considered Mr. Raza's action in writing his letter of 2nd March 1998 without reference to the Council, and particularly the provision of a copy of that letter to the Shadow Minister, as being insubordinate, imprudent and disruptive. However, in my opinion, Ali Roude plainly had a major role in sending the letters of 9th April and 20th April to the Department, and those letters were misleading and inappropriate. The letters referred to "inaccuracies" in Mr. Raza's letter, in circumstances where the only inaccuracy (concerning the circumstances in which Khadar Roude's employment came to an end) was entirely immaterial to the substantive allegations being made; and the letters otherwise discredited the allegations in Mr. Raza's letter by asserting that ICNSW itself made no such allegations and disassociated itself from the information in the letter . In my opinion, those misleading letters did have the effect of minimising the possibility of any proper investigation of the matter. Furthermore, by focusing the attention of the Executive Committee on complaints about Mr. Raza's conduct, Ali Roude brought about a situation where apparently no consideration whatsoever was given to seeking any redress from Khadar Roude. In circumstances where dishonest conduct by Khadar Roude was calculated to undermine work which ICNSW was attempting to do for the Muslim community through the provision of employment services, and may have been instrumental in bringing that work to an end, the conduct of Ali Roude and the other members of the Executive Council who participated was unsatisfactory. 56 In the witness box, Ali Roude was very ready to characterise Mr. Raza's conduct as dishonest, although when questioned about this he conceded, with much hesitation and reluctance, that it could not properly be so characterised. However, he was reluctant to concede that what his brother did was dishonest; and would not concede that the letters written on behalf of the Executive Committee in April 1998 were misleading. In these respects I considered Ali Roude an unsatisfactory witness. 57 On the other hand, I have no reason to believe that Mr. Raza was doing anything other than attempting to give truthful evidence, to the best of his ability and recollection. There is some possibility that Mr. Raza could have misremembered the conversation of January 1998, and some possibility that there could be confusion with the earlier proposal of a partnership involving Mr. Roude and ICNSW. However, on balance I think it is not likely that Mr. Raza misremembered the conversation, and, although I cannot be certain, I find on the balance of probabilities that a conversation did take place in January 1998 along the lines given in evidence by Mr. Raza; and that accordingly Ali Roude did have at least some prior knowledge of his brother's tender. It is possible that he did not appreciate the full significance of his brother's tender and his brother's dishonesty, until later. However, my finding means that I cannot be confident in accepting Mr. Roude's evidence. 58 As regards Mr. Marhaba, I think it is unlikely in the extreme that he would, as he claimed in evidence, have signed a page in blank in the position in which his signature appears in Exhibit D25. For that reason, I do not consider Mr. Marhaba to be a reliable witness. 59 I consider I have no reason to think that any of the other witnesses were doing other than giving evidence honestly and with reasonable recollection. 60 Coming to the meeting of ICNSW which took place on 31st May 1998, the disruption that occurred was plainly inappropriate and undemocratic, but I am unable to find that it was orchestrated by any particular person or group of persons. However, I think Ali Roude must bear some responsibility for the outcome, namely the adjournment of the meeting without setting a date for resumption and the loss or destruction of the ballot papers which had been filled out. 61 A further question of fact was whether, as claimed by Mr. Elgafi, he told Ali Roude that he was going overseas shortly before the meeting of ICNSW was called for 6th January 1999. Again, this is not a matter which I could find as a matter of certainty or beyond reasonable doubt; but having regard to the concerns I have indicated concerning Ali Roude's evidence, on the balance of probabilities, I find that Mr. Elgafi did inform Ali Roude of this. 62 The final question of fact which I consider is whether the resolution recorded in the minutes of the Congress meeting of 4th April 1999 was in fact passed at the meeting. The evidence against this having happened is evidence given by Ali Roude and Mr. Marhaba, and thus is evidence about which I would have concerns. On the other hand, the minutes have not been confirmed, no evidence has been called from the person who took the minutes, and the handwritten notes on which the typed minutes are based have not been produced. There is evidence from Mr. Mahboob, though not in satisfactory form, that the resolutions were passed. 63 On the whole, I do not think this evidence is satisfactory to establish on the balance of probabilities either that those resolutions were passed as recorded in the minutes, or that they were not so passed.

[40]

Decision 67 The relevant Rules are confusing and seemingly contain inconsistencies. However, it seems clear that there can be ordinary meetings of ICNSW which are not annual general meetings: 7 days' notice is required for such meetings (see Rule 9(i)); whereas an annual general meeting requires 14 days' notice specifying the general nature of the business (the second Rule 10(ii) - the first Rule 10(ii) is plainly a typographical error); while a special meeting requires 21 days' notice (Rule 11(i)). 68 At meetings other than special meetings, a simple majority is sufficient for the passing of resolutions (Rule 9(ii)). For special meetings, a two-thirds majority is required (Rule 11(ii)). 69 Rule 11(iii) suggests that a special meeting is required for matters arising under Rule 13(i)(f); whereas Rule 13(i)(f) itself suggests that removal or expulsion of office bearers may be at a special or an ordinary meeting. 70 Although this was not submitted by Mr. Whittle, it may be that dismissal at an ordinary meeting cannot take place unless the matter has first been at least discussed at a special meeting: otherwise, the provisions concerning a special meeting seem otiose. In any event, the notice of the meeting identified it as a special meeting; and although Ali Roude suggested this was a "mistake", I do not think that affects the characterisation of the meeting, particularly where the meeting was called for a purpose specifically identified by the Rules as being a purpose of a special meeting. Further, as submitted by Mr. Whittle, it seems clear that less than 7 days' notice was given to at least one member. 71 I would not consider it fatal to the meeting that the notice was not signed by the secretary; but the matter of notice is in my opinion sufficient to invalidate the meeting. I will consider later what, if any, relief should be granted. 72 I think also Mr. Elgafi was entitled to notice of the meeting and to natural justice; but this has not been pleaded. One other matter that was not argued was whether Rule 13(i)(f) in fact only empowered removal or expulsion from membership of the Council, which would in turn cause the person no longer to be an office bearer. That could be the literal reading of this subparagraph itself; but it would not make sense, because most office bearers are not members of the Council, but representatives or delegates of the member associations.

[54]

... 18. The powers and functions of the Executive Committee shall include: (a) To manage and administer the business and affairs of the Federation. (b) To carry out decisions and resolutions of the Federal Congress and the Federal Council, and to exercise such powers and functions as may be delegated to it by them. (c) To appoint Sub-Committees to perform such functions as it may be decided upon by the Federal Council or Federal Congress, and co-opt such members of the organisation or individuals as may be regarded fit for the purpose. (d) To supervise the activities of any Trusts, Boards or Committees appointed by the Federal Congress and the Federal Council. To ensure that membership of any Trusts, Boards, Committees or Sub-Committees set up by or with the concurrence of the Federal Congress, the Federal Council or the Executive Committee shall only be by virtue of ex-officio positions, in the case of members of the Executive Committee, and for a period not exceeding two (2) years, in the case of other appointees. (e) To exercise emergency powers and directly intervene in the affairs of a State Council only if the situation warrants immediate action by A.F.I.C. The degree and form of intervention will be determined by the Executive Committee itself. The Executive Committee may seek and obtain the advice of all the members on the panel of Islamic Arbitrators as per Rules for the Conduct of Islamic Arbitration as per Seciton 60(12) and act on this advice as early as possible to address and resolve the problems/disputes occurring in a member state Council or Islamic Society. Examples of circumstances which require invoking of these powers are: (i) Infiltration of non-Muslims in the State Council. (ii) Infiltration of persons widely suspected to be non-Muslims by the State Council. (iii) Persistent defiance of AFIC policies and AFIC Constitution by the State Council. (iv) Long absence from meetings of the majority of the office-bearers of the State Council paralysing the affairs of the State Council. (v) Serious division in the State Council members to run the affairs of the Council. Action taken under these powers shall be presented to and ratified by the Federal Council (f) To appoint a suitable member of the Federation resident in Tasmania to be the public officer of the Federation under Section 14 of the Act. (g) To perform, subject to this Constitution, all such acts and things as appear to the Executive Committee to be essential for the proper management and administration of the business and affairs of the Federation. (h) To have the power to appoint, remove and exercise disciplinary control over the AFIC staff.

[56]

Submissions 75 Dr. Birch submitted that the intervention was not authorised by AFIC's Constitution because (a) the matters complained of were not matters of a sort that could warrant intervention under Rule 18(e); (b) the matters were not an emergency and did not warrant immediate action, but were stale matters of which the Congress and Council were already seized; (c) on the defendants' case, the Congress had already passed a resolution specifying the manner and type of intervention, and the intervention by the AFIC Executive Committee was not in accordance with that resolution; and (d) natural justice had not been given to the ICNSW Executive. There was no managerial or administrative failure in the operation of ICNSW. The intervention was not by the Executive Committee itself, but by individuals named as a caretaker committee. 76 Dr. Birch submitted that if the Congress resolution had indeed been passed as alleged by the defendants, it was to set up a committee which was itself to implement its findings. The report of the Committee was to the effect that the ICNSW was to be required to do things, and that if these things were obstructed, then the Executive Committee should intervene. The recommended step of requiring ICNSW to do these things was not taken, so the intervention was not in accordance with the findings of the Committee, and thus not in accordance with the Congress resolution. 77 On the other hand, if the Congress did not pass the resolution as claimed, the situation was that the Congress was seized of the matter, and had not effectively acted, so that the situation, whatever it was, could not be considered an emergency. If any AFIC body could have taken action, it was the Council, under Rule 15(c). 78 Turning to the matters said to justify intervention, Dr. Birch submitted that, as regards the DEETYA tender, Khadar Roude had been sacked, any personal failure by Ali Roude could not justify removal of other office bearers of the ICNSW; the Executive Committee had adequately dealt with the matter; and there was no suggestion that the intervention was for the purpose of taking further action in the matter. 79 As regards Rissalah College, this was not an asset of ICNSW. It was a matter for the members, directors and trustees of the College to determine what relationship it would have with the ICNSW. The alteration of the memorandum to remove cl.1(a) providing that the company should be a subsidiary of ICNSW had no effect, as the company was not such a subsidiary and the provision was mere verbiage. The Constitutional amendments had been effected on legal advice, and for proper purposes. 80 In so far as intervention was said to be justified by the failure of ICNSW to act on the requirement from AFIC to amend its Constitution, those amendments were not required by Rule 5(2) of AFIC's Constitution, because the required amendments did not arise from disconformity between the two constitutions. In any event, the committee of enquiry made no mention of the constitutional amendments or suggested that any intervention on that ground was justified. 81 In relation to the school, Dr. Birch submitted that ICNSW was never a member or owner of the school: it was set up with money from United Arab Emirates, and a loan from ICNSW which had been repaid. If any complaint could be made, it would be by the members of the company, not ICNSW. The action taken is understandable, because it is easy to stack membership and thereby change control of a community organisation: it was reasonable to seek a situation where control of the school should not change with the vagaries of the politics of ICNSW. 82 Mr. Whittle submitted that the word "emergency" in cl.18(e) is wide enough to cover events which develop gradually but reach a point where they are of extreme seriousness. Similarly, the words "immediate action" means action which cannot be deferred for any length of time. Because of the nature of the clause, natural justice does not apply: in many situations, there would neither be the opportunity nor the occasion for natural justice. In any event, the power is not disciplinary but rather protective. 83 Mr. Whittle submitted that a number of matters justified intervention in this case. 84 There was a concerted, deliberate and persistent attempt by Ali Roude and the ICNSW Executive to frustrate and prevent a proper investigation of the circumstances of Khadar Roude's tender. 85 As for Rissalah College, the purported change to Article 40(3) was invalid: the absence of production of any notice, plus the way the matter was dealt with in the minutes of the meeting, showed that no notice was given. The purported changes made on 23rd May 1999 were also invalid: less than 21 days' notice was given, the notice produced did not show the proposed changes, and there was nothing to show that any changes of which notice was given were the same as those which were passed: see Re Morgate Mercantile Holdings (1981) WLR 227. In any event, the changes were highly improper: they showed a careful and deliberate attempt to remove the school from the control of ICNSW and to place Ali Roude in a position to completely control it. The amendments were invalid also because Mr. Elgafi was entitled to be given notice and to be present at the meeting, but was not. Four of the persons who did vote for the amendments were directors of ICNSW, owing fiduciary duties, which they breached. 86 Furthermore, Mr. Whittle submitted, ICNSW refused to bring its constitution into line with that of AFIC: a request had been made at least by 20th October 1998, and repeated on 16th March 1999. 87 Finally, Mr. Whittle submitted that, if Ali Roude was entitled to natural justice, he was not denied it. He was given a full opportunity to know the allegations against him, to answer those allegations, and to hear the evidence of those who made the allegations. The committee which investigated the allegations was effectively the decision-making body, and there was no occasion for a re-application of the rules of natural justice, before the Federal Executive Committee acted.

[57]

Decision 88 On this aspect of the case, three broad issues are raised: firstly, whether the requirements of Rule 18(e) of AFIC's Constitution were satisfied; secondly, whether the action that was taken was contrary to a resolution made by the AFIC Congress; and thirdly, whether there was a denial of natural justice. However, although I have expressed these issues as straight-out questions, it must be remembered that it is the plaintiffs that are seeking the intervention of the Court, so that the onus lies squarely on the plaintiffs to make out an affirmative case that Rule 18(e) was not satisfied, or that the action was contrary to the resolution of Congress, or that natural justice was denied. 89 Looking first at Rule 18(e), I accept that the references to "emergency" and "immediate action" must be read in the light of wider powers that are given to the Congress and Council by Rules 13(e) and 15(c); and that they do carry with them the notion of a requirement for urgent action that cannot await the attention of the Council or the Congress. However, I also accept Mr. Whittle's submission that the words can be satisfied by a situation that has built up over an extended period of time, but reached a stage where action is required that cannot be deferred for any length of time. The onus is on the plaintiffs in this case to show either that there was no such situation in this case, or possibly that the question whether or not there was such a situation was not properly addressed. 90 In my opinion, when one puts together the circumstances concerning ICNSW's actions in opposing a proper investigation of the employment services tender, the dismissal of Mr. Elgafi, and the action taken to put Rissalah College largely under the personal control of Ali Roude, I find myself unable to be satisfied either that there was not, as a matter of objective fact, an emergency and a situation requiring immediate action, or that the Executive Committee did not properly address the question. 91 Next, for reasons I have given, I am not affirmatively satisfied that a resolution was passed at the Congress meeting as set out in the Congress minutes. That means that I cannot be affirmatively satisfied that the Executive Committee's action was contrary to a resolution of Congress. Nor do I think that, if it be the case that no such resolution was passed, it could be said that there could not be an emergency or a situation warranting immediate action, because the matter had been brought to the attention of Congress, and Congress had done nothing effective. On any view, following the Congress meeting, there had been investigation of the matters by the three-person committee, and further steps had been taken in relation to Rissalah College in May 1999; and both of these matters could be considered as contributing to a need for immediate action. In those circumstances, I do not think there is anything in what Congress did in March 1999 which goes against the findings or lack of findings indicated in the previous paragraph. 92 As regards natural justice, I accept Mr. Whittle's submission that Rule 18(e) will cover some situations at least where it would be impractical to afford natural justice to people or organisations who might be affected by intervention. In any event, in the present case, I am not satisfied that the natural justice which was provided by the three-person committee to Ali Roude and to other persons involved with ICNSW fell short of whatever natural justice was required.

[75]

RELIEF 109 As to what, if any, relief should be granted, it was submitted by Dr. Birch that no relief should be granted to Mr. Elgafi, because of his delay in bringing the proceedings and because of the inconvenience that would ensue if all proceedings of the Executive Committee of ICNSW since January 1998 were held to be invalid. 110 There was debate also as to the standing of Ali Roude to have any relief at all. It was submitted by Mr. Whittle that only a delegate of a member association or a person made an individual member under Rule 5(x) could become an office bearer; and that Ali Roude was neither a delegate, nor was he made an individual member under Rule 5(x) at the annual general meeting of July 1998. Accordingly, he was not validly an office bearer of ICNSW. Dr. Birch submitted that there was no requirement in the Constitution of ICNSW that an office bearer must either be a delegate or an individual member under Rule 5(x), and he referred to Rule 4(x); and in any event, Ali Roude had previously been made an individual member under Rule 5(x) and there was no basis to assume that that membership expired. 111 Finally, there was a question whether, because of the problems which gave rise to the AFIC intervention, I should grant relief to the plaintiffs; or, if I did grant relief, whether that should be on some condition which would require an early general meeting of ICNSW and election of new office bearers. 112 In relation to Ali Roude's standing, I accept Dr. Birch's submissions: there appears to be nothing in the ICNSW Constitution that requires an office bearer to be either a delegate of a member association or an individual member under Rule 5(x); and in any event, there does not seem to be any basis for saying that Ali Roude's previous appointment as an individual member under Rule 5(x) ran out. 113 In my opinion, I should grant relief to the plaintiffs and to the cross-claimant, but not unconditional relief. The purported intervention by AFIC has been largely ineffectual, because, although ICNSW is contractually bound to submit to it, the Rules of ICNSW prevent a taking over of its affairs in the way which the AFIC Executive Committee attempted; but it has not been shown that intervention was not authorised by AFIC Rules, and I have given reasons why I believe AFIC had real cause for concern. There has been delay by Mr. Elgafi, which in my opinion makes unconditional relief inappropriate in his case also. 114 It would appear that this Court does not itself have power to remove office bearers; but this Court can declare in accordance with these reasons that the purported election of four office bearers in January 1999 was invalid, and it can require, as a condition of relief being granted to them respectively, that Ali Roude and Mr. Elgafi resign as office bearers. It can require that ICNSW attempt to procure the resignation of the remaining office bearers; and that, if this is not obtained, a resolution for the removal of the remaining office bearers be put to a meeting. I propose to make it a condition of relief that these things happen, and that a meeting be called, and an election held for the vacancies in the office bearers, which I expect will be all the office bearers. 115 The relief to be granted to the plaintiffs, on these conditions, would be a declaration that the purported removal of ICNSW office bearers, and the resolutions purportedly passed on 17th October 1999, were invalid. The relief to be granted to Mr. Elgafi, on those conditions, would be a declaration that his purported removal and the purported election of four office bearers on 6th January 1999 were invalid. I would not in these proceedings make any declaration of invalidity concerning subsequent actions of the ICNSW Executive Committee. 116 My findings concerning the January 1999 meeting could raise a question as to the instructions given to ICNSW's solicitors, and as to who can call and chair a meeting of ICNSW. There has been no challenge to the retainer of the solicitors, and I do not think my findings require me to decide that they had no retainer. As regards calling and chairing a meeting, in my opinion s.23 of the Supreme Court Act confirms that this Court can give directions which ensure this is validly done. 117 If there is any dispute between the parties to these proceedings as to who should be treated as members of ICNSW for the purposes of this meeting, or as to the numbers of delegates for any association I would give directions for the resolution of that dispute in these proceedings. The plaintiffs should prepare short minutes of orders giving effect to these reasons, which include directions for the calling and conduct of the meeting.

ISLAMIC COUNCIL OF NSW & ANOR. V. THE AUSTRALIAN FEDERATION OF ISLAMIC COUNCILS & ORS. [2000] NSWSC 115

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