plaintiff. Declarations were made that the expulsions identified in the judgment, including those of the Test Members, were in breach of ANSCI's Constitution, invalid and of no effect. The issue of costs was...
Key principles
The Constitution gave the Management Committee no express power to expel General Members. Clause 22 provided for complaints to be dealt with under a current Policy and Procedures...
Even proceeding on the basis that the interim care-taker committee (ICC) had the Management Committee's powers, it could not exercise an expulsion power that the Management...
The Constitution permitted expulsion to be considered at a General Meeting, with the member given the opportunity under cl 10.0(d) to make written or oral representations at a...
The expulsions also breached the implied Fairness Term. The decision-makers failed to consider the complaints honestly and impartially, relevant matters were not put to the...
Issues before the court
Whether the ICC or Management Committee had power under the Constitution to expel General Members.
Whether the Plaintiffs were denied the opportunity to make representations under cl 10.0(d) and the implied Fairness Term.
Plain English Summary
ANSCI's interim committee expelled members, but the Constitution did not give it a power to expel General Members in the circumstances. The disciplinary process also denied the members a fair opportunity to address the case against them, and a complainant took part in the decision-making. The Court found that two Test Members had not committed conduct meeting the required expulsion threshold. It found that the third had helped create a competing club in a way that was persistently and deliberately contrary to ANSCI's interests, but that did not make his expulsion valid. The Court rejected ANSCI's estoppel and no-practical-injustice defences and made declarations that the expulsions were invalid.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,536 words · generated 02/10/2026
What happened
In Kabbara & Ors v Australian National Sports Club Incorporated [2021] NSWSC 738, Rein J considered challenges to the expulsions of members of ANSCI, an incorporated sports club in Lakemba, New South Wales. The Court decided the claims by reference to three Test Members: Youcef Kabbara, Khaldoun Moussa and Bassam Barake. The agreed test-case arrangement meant the Court's findings about those members determined the claims for the other Plaintiffs in their respective groups.
Whether the conduct alleged against each Test Member satisfied the implied Expulsion Term.
Whether ANSCI established conventional estoppel against the Plaintiffs.
Cited legislation
3 cited instruments linked from this judgment.
The dispute arose against a background of conflict over ANSCI's governance. In March 2017, the Board of Life Members purported to dismiss the Management Committee and appoint an interim care-taker committee of three Life Members. ANSCI's earlier proceedings about the validity of that dissolution were discontinued. The validity of the dissolution was not an issue for decision in the present case, but the identity and authority of the body that expelled the Plaintiffs were central.
In March and April 2018, the interim committee sent show-cause letters. Kabbara was accused of helping establish and recruit for PUFC, a new football club. Moussa was accused of seeking Life Membership when he was not entitled to it. Barake was accused of retaining ANSCI documents and behaving aggressively when asked to return them. Kabbara and Moussa responded by seeking particulars, but those requests were not answered. Barake did not respond.
The key constitutional provisions included cl 11.0(c), which stated that a General Member ceased to be a member if expelled; cl 22, which provided for complaints about General Members to be handled under a current Policy and Procedures Manual; cl 10.0(d), which gave members the right to make oral or written representations at a meeting where their membership was considered; and cl 33, which allowed the Board of Life Members to appoint an interim care-taker committee in specified circumstances.
The Court had previously determined separate questions about implied terms in the Constitution, holding that both the Fairness Term and Expulsion Term were present: Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497. The 2021 judgment applied those terms to the evidence and determined questions about authority, process, estoppel, practical injustice and the utility of declarations.
Why the court decided this way
The first major question was who could expel General Members. The Constitution expressly authorised the Management Committee to suspend or expel a Player Member under cl 18, but contained no equivalent express power for a General Member. Clause 22 required complaints to be dealt with under a current PPM, but the Court was not persuaded that a disciplinary PPM had ever been adopted. Neither party produced one. The interim committee itself had stated that a policy did not exist.
The Court accepted that cl 22 might have contemplated expulsion as one possible outcome under a PPM. But without knowing the manual's terms, it could not be assumed that the Management Committee would have had the power to expel. A process could instead have authorised a committee to investigate and recommend expulsion to a General Meeting. In the absence of an adopted PPM, the Management Committee could not use cl 22 as an expulsion mechanism.
ANSCI argued that the interim committee should have the widest powers necessary to manage the Club. Section 28 of the Associations Incorporation Act 2009 (NSW) required an association to establish a committee to manage its affairs, and the interim committee met the statutory requirements described by the Court. But s 28 did not grant the committee powers to act beyond those conferred by the Constitution. Rein J proceeded on the assumption that the interim committee had the Management Committee's powers. Even on that assumption, the interim committee could not have an expulsion power that the Management Committee itself lacked.
The judgment also considered where an expulsion could be decided. The Constitution did not expressly state that only a General Meeting could expel a member. However, the Court found that ANSCI could consider an expulsion at an AGM or Special General Meeting, provided the member had the opportunity under cl 10.0(d) to make representations. No such meeting was notified to the Plaintiffs. The Court concluded that the expulsions were ultra vires the Constitution and were not carried out in accordance with its requirements.
A separate procedural problem arose under cl 10.0(d). It entitled a member to make representations orally or in writing at a meeting where their membership was being considered. That required notice of the meeting and a genuine opportunity to put forward a response. The Plaintiffs had not received notice of a meeting at which their membership would be considered. The Court rejected the suggestion that the committee could simply determine that no oral submissions would be allowed.
The Court also found breaches of the implied Fairness Term. The evidence showed that Ms Tabbaa had made complaints about the Plaintiffs and participated in the committee's decisions to issue show-cause letters and expel them. She had been involved in earlier litigation and other disputes concerning them. Reasons advanced by Ms Tabbaa and Mr Desoukey were inconsistent with each other and with the show-cause letters. In several instances, reasons relied on by decision-makers had not been put to the affected member. The Court found failures to consider the cases honestly and impartially, and a failure to separate the roles of complainant and decision-maker.
The Court addressed the Expulsion Term separately from procedural fairness. For Moussa, the allegation was that he had sought and accepted Life Membership when not entitled. The evidence showed that he was entitled to become a Life Member in 2014. He had also accepted ANSCI's 2016 decision to return him to General Member status. The Court found no legitimate basis for saying the Expulsion Term had been met.
For Barake, the evidence showed that he received documents for safe keeping and returned them on the Monday after being asked to do so. The Court did not accept the claim that he kept them in his car for two weeks, and found no evidence of aggressive or hostile behaviour. The conduct was not persistent, and did not establish a proper ground for expulsion.
Kabbara's conduct was different. He helped establish PUFC, organise its activities and recruit players. The evidence included a development plan identifying ANSCI as a competitor and evidence that PUFC attracted players who had previously been involved with ANSCI. Rein J found a solid case that Kabbara had acted persistently and deliberately contrary to ANSCI's interests. The Court therefore did not find a breach of the Expulsion Term in his case. But that factual finding did not provide the committee with authority it did not have, nor cure the procedural unfairness. His expulsion remained invalid.
Before and after state of the law
The judgment applied the Court's earlier decision in the same litigation, Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497, which had answered in the affirmative the separate questions about the existence of the implied Fairness Term and Expulsion Term. The 2021 reasons did not create those terms from scratch. They applied them to the evidence about the expulsions.
The judgment reinforces the importance of an association's governing rules when it exercises disciplinary powers. Rein J cited Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 and Lowe v Australian Chinese Community Association of NSW (No 2) [2010] NSWSC 1375 for the proposition that expulsion must be exercised in strict compliance with the rules. In this case, the absence of a PPM mattered because cl 22 made compliance with the current manual part of the disciplinary process.
The reasons also distinguish statutory committee status from constitutional authority. Section 28 of the Associations Incorporation Act 2009 (NSW) required a committee to manage the association's affairs, but the Court did not treat that requirement as an independent source of an expulsion power. The statutory duty to have a committee did not authorise a committee to disregard the limits and procedures in the Constitution.
On procedural fairness, the judgment considered authorities concerning domestic tribunals, including Dickason v Edwards (1910) 10 CLR 243, Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 and Agricultural Societies Council of NSW v Christie [2016] NSWCA 331. It rejected the suggestion that fairness or apprehended-bias principles were inapplicable merely because ANSCI was a private association. The Court found actual bias in the process, while also observing that the rule against apprehended bias applies to domestic tribunals, though not with the same rigour as in judicial or quasi-judicial proceedings.
ANSCI relied on administrative-law and migration-law decisions concerning materiality and practical injustice, including Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. The Court did not accept that those principles could answer every issue in the case. Even if relevant to procedural fairness, they could not resolve the separate absence of an expulsion power. ANSCI also bore the onus of proving its no-practical-injustice defence and failed to do so.
The materials provided contain no later decisions considering or applying this judgment. Its subsequent treatment therefore cannot be established from this judgment text alone.
Key passages with plain-English translation
The Court stated: “Expulsion must be exercised in ‘strict compliance’ with the rules of the Constitution.” In plain English, an association cannot treat its rules as optional when excluding a member. If its Constitution sets conditions or a process, the decision-maker must comply with them.
On the committee's authority, the judgment reasoned that if the Management Committee had no power to expel in the absence of an adopted PPM, neither did the interim committee. In plain English, calling a body “interim” or giving it responsibility for management did not automatically give it a disciplinary power that the Constitution had not provided.
On cl 10.0(d), the Court said members had to be given notice of the meeting where their membership was under consideration and an opportunity to present their defence. In plain English, a written show-cause letter was not enough to replace the separate constitutional right to make representations at the relevant meeting.
On the fairness process, the Court found a lack of consideration “in an honest and unbiased way and unaffected by any ulterior, or extraneous motives”. The practical point was that a disciplinary decision must be made by a decision-maker who is not also advancing the complaint, and who genuinely considers the case put forward by the member.
The Court's findings about Kabbara show that an adverse finding on the underlying conduct does not necessarily validate the decision. The Court found his conduct contrary to ANSCI's interests, but the committee still lacked authority to expel and had not followed a fair process. The validity of the decision depended on both the substantive threshold and the lawful exercise of power.
Finally, the Court said the declarations had utility because they would “quell the dispute concerning the Plaintiffs present membership of ANSCI”. In plain English, the declarations resolved whether the Plaintiffs remained members, even though the wider disagreement about the Club's future might continue.
What fact patterns trigger this precedent
The judgment is most directly relevant where an incorporated association expels members under a constitution that does not clearly identify which body may expel them. A lawyer or governance professional would likely examine whether the rules expressly grant the power, whether a disciplinary policy is incorporated or required, and whether that policy was validly adopted and followed.
It is also relevant where an association appoints an interim, caretaker or replacement committee after a governance dispute. The key point is not the label given to the committee, but the powers the Constitution and legislation actually confer on it. Here, the Court assumed the interim committee had the Management Committee's powers and still found no expulsion power.
The case is relevant where rules give a member a right to speak or make written representations at a meeting, but the association instead conducts the matter through correspondence alone. A central question is whether the member was notified of the meeting at which membership would be considered and had a real opportunity to address the decision-maker.
It may also matter where a complainant, a person closely involved in the dispute, or a person with a strong view about the member's guilt participates in deciding the disciplinary matter. The judgment's findings arose from evidence of prior litigation, personal involvement, inconsistent reasons and the complainant's participation in deliberations.
Finally, the case demonstrates that the merits of the allegation and the validity of the process are separate questions. Kabbara's conduct met the Court's description of persistent and deliberate conduct contrary to ANSCI's interests, but his expulsion was nevertheless invalid. Conversely, the Court found that the allegations against Moussa and Barake did not meet the substantive expulsion threshold.
How later courts have treated it
No later judgments or other subsequent legal sources are included in the supplied material. On that basis, it is not possible to describe how later courts have treated Kabbara [2021] NSWSC 738, or whether they have followed, distinguished or questioned it.
The relationships that can be identified from this judgment are its treatment of earlier authorities. It applied the strict-compliance approach from Goodwin and Lowe, addressed estoppel principles by reference to Moratic, Ryledar and Con-Stan, and considered domestic-tribunal fairness authorities including Dickason, Australian Workers' Union v Bowen and Agricultural Societies Council of NSW v Christie. Those are authorities considered by Rein J in 2021, not evidence of later treatment of Kabbara itself.
Still-open questions
The judgment did not determine every issue listed by the parties. In particular, it did not decide whether ANSCI had condoned, acquiesced in or waived complaints concerning Moussa and Barake, or had elected to affirm membership relationships. It considered those matters unnecessary to resolve after deciding the authority and fairness issues.
The reasons also did not decide the full scope of an interim care-taker committee's role under ANSCI's Constitution. The Court proceeded on the assumption that the interim committee had the Management Committee's powers, then found that this did not include the power to expel General Members in the circumstances. It did not need to settle every question about what functions an interim committee could exercise.
The judgment did not establish what a properly adopted PPM would have provided or whether such a manual could validly have given the Management Committee an expulsion power. The Court emphasised that no PPM was produced and that its contents could not be assumed. A future case with a validly adopted policy, different constitutional wording, or a different decision-making structure could raise distinct questions.
Nor did the Court decide the wider governance and control questions affecting ANSCI, including the concerns about PUFC, the UMA, Sheikh Shady, the Club's facilities or the future voting position of returning members. It held that those matters did not remove the utility of declarations about membership in this case. The judgment's orders resolved the validity of the expulsions, not the Club's broader internal conflict.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using any draft based on this response, have a qualified Australian lawyer check it.
Judgment (17 paragraphs)
[1]
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Moratic Pty Ltd v Lawrence James Gordon and Anor [2007] NSWSC 5
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Texts Cited: N. Stewart QC, N. Campbell and S. Baughen, The Law of Unincorporated Associations (2011, Oxford University Press)
Category: Principal judgment
Parties: Youcef Shaouki Kabbara (First Plaintiff)
Natasha Hill (Second Plaintiff)
Ilham Alameddine (Third Plaintiff)
Nader Tabbaa (Fourth Plaintiff)
Dawood Goddard (Fifth Plaintiff)
Ahmed Faysal (Sixth Plaintiff)
Taj Faysal (Seventh Plaintiff)
Khaldoun Moussa (Eighth Plaintiff)
Bassam Barake (Ninth Plaintiff)
Khalid Majid Mousa (Tenth Plaintiff)
Masen Abou-Zolof (Eleventh Plaintiff)
Mohamed Charchouh (Twelfth Plaintiff)
Talal Elcheikh (Thirteenth Plaintiff)
Ibrahim Sukari (Fourteenth Plaintiff)
Wissam Faysal (Sixteenth Plaintiff)
Mohammad Kourouche (Seventeenth Plaintiff)
Omar Chaar (Eighteenth Plaintiff)
Rowah Hassan (Nineteenth Plaintiff)
Australian National Sports Club Incorporated (Defendant)
Representation: Counsel:
Mr N Furlan (Plaintiffs)
Mr D Stewart with Ms K Hooper (Defendant)
These proceedings relate to a dispute concerning the expulsion of nineteen Plaintiffs as General Members of the Australian National Sports Club Incorporated ("ANSCI"). ANSCI, the Defendant in the proceedings, is an incorporated association. ANSCI is a local sports club; its main purpose (as set out in the objectives in cl 4 of its constitution) is "to foster and develop soccer…and other sports". ANSCI is located on Punchbowl Road in Lakemba NSW and affiliated with the Canterbury & District Soccer Football Association Inc ("CDSFA"). The Plaintiffs claim that their expulsion had no proper basis. One of the Plaintiffs (Mr Belal Pickering, the Fifteenth Plaintiff) discontinued his proceeding against ANSCI in December 2019. Mr N Furlan of Counsel appears for the Plaintiffs. Mr D Stewart with Ms K Hooper of Counsel appears for ANSCI.
Two issues were determined by me as separate questions pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The separate questions for determination ("the Separate Questions") were framed as follows:
1. Did the Constitution of the Defendant dated 27 November 2010 ("the Constitution") contain the term as pleaded at paragraph 29 of the Statement of Claim ("Fairness Term")?
2. Did the Constitution of the Defendant contain the term as pleaded at paragraph 28 of the Statement of Claim ("Expulsion Term")?
I delivered judgment as to the Separate Questions on 1 May 2020: see Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497 ("the 2020 Reasons"), answering both questions in the affirmative (see [45] of those reasons).
I also note that a second judgment in the matter was published by her Honour Ward CJ in Eq on 26 August 2020: Kabbara v Australian National Sports Club Incorporated [2020] NSWSC 1166. In these reasons her Honour, pursuant to r 14.28 of the UCPR and the Court's inherent power, stuck out paragraph 335.1.3A of the Defendant's Further Amended Defence filed 24 June 2020 with no liberty to replead, and refused the Plaintiffs' application for the determination of a further separate question. The current pleadings, i.e. the Further Amended Statement of Claim ("FASTOCL") and the Second Further Amended Defence ("SFAD"), are found at CB 543-620 and CB 621-653 respectively.
The Defendant's Closing Submissions of 26 May 2021 ("the DCS") contains the following frank submission (at paragraph 12.5):
"It is important to recognise a critical point in this case, unfortunately somewhat obscured by costly and time-consuming litigation: the parties are in fact arguing over the membership of a small sports club of meagre means in suburban Punchbowl. Both sides no doubt feel aggrieved. Regardless of whether this is justified or not, it is fair to say neither side will back down."
[4]
Test Members
Each Plaintiff seeks a declaration that his or her expulsion was in breach of ANSCI's Constitution. On 20 December 2019 orders were made by consent that the proceedings were to be decided by reference to the claims by particular test members, i.e. the Plaintiffs would be divided into three separate groups and one member would be selected from each group ("the Test Members") and the Court would hear the claims of the Test Members only and the outcome of the Test Members' claims would determine the outcome of the proceeding for each member within that Test Member's group.
The Test Members are:
1. Mr Youcef Kabbara (the First Plaintiff);
2. Mr Khaldoun Moussa (the Eighth Plaintiff); and
3. Mr Bassam Barake (the Ninth Plaintiff).
Mr Kabbara represents himself and the Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, Eleventh and Twelfth Plaintiffs. Mr Moussa represents himself and the Fourteenth, Seventeenth and Eighteenth Plaintiffs. Mr Barake represents himself and the Thirteenth, Sixteenth and Nineteenth Plaintiffs.
ANSCI is registered under the provisions of the Associations Incorporation Act 2009 (NSW) ("the AI Act"). ANSCI operates under a Constitution dated 27 November 2010 ("the Constitution"): see CB 232-265. By s 26 of the AI Act, the Constitution binds its members as if it were a contract between them under which each member agrees to observe its provisions.
By way of background to the present dispute it should be noted that in May 2017 ANSCI commenced proceedings (2017/153989) against a number of individuals, including Mr Kabbara, Mr Moussa, and Mr Barake, who are the three Test Members in the current proceedings. Mr Kabbara, Mr Moussa and Mr Barake were members of the Management Committee of ANSCI. ANSCI had in March 2017 purportedly dismissed them (and the other members of ANSCI's Management Committee), and replaced the Management Committee with an "interim care-taker committee of 3 Life Members" (the "ICC") consisting of Ms Inaam Tabbaa, Mr Sherif Desoukey and Mr Abdalla Salam: see CB 345. ANSCI sought declaratory relief that the defendants in those earlier proceedings no longer constituted the Management Committee of ANSCI, but ANSCI discontinued its proceedings. Whilst it was agreed that in the present case the validity of the dissolution of the Management Committee is not an issue, the fact that the expulsion was by the ICC does have potential relevance to the outcome of the case because the Plaintiffs contend that the power to expel was given to the General Members at an Annual General Meeting or Special General Meeting or alternatively the Management Committee, but not the ICC.
[5]
The Constitution
The following provisions of the Constitution (with emphasis added by me) are relevant:
"4.0 Objects
The objects of the Club are:
(a) To foster and develop soccer, rugby league, rugby union and other sports as its main purpose.
(b) To train coaches and referees among youth and adult players alike in various football codes to meet best practice.
(c) To discourage the use of intoxicants, narcotics, performance enhancing drugs and other noxious drugs.
(d) To discourage gambling and betting.
(e) To encourage the development of good character and discipline.
(f) To organise multi ethnic and Australian colonial events that encourage unity and friendship in the community.
(g) To promote, organise and encourage healthy indoor and outdoor sporting and exercise groups for children and young persons under 18 years, women, men and the aged.
(h) To provide sporting and other services that strengthens the bonds between members of all categories within the Club, and between the families and associates of members of the Club.
(i) To build, construct and establish, alter, rebuild, renovate construct and maintain building and grounds, premises, rooms and other facilities for the purpose of carrying out the above objectives.
(j) To operate a not for profit organisation which may register with the Charities Department for fundraising purposes only.
(k) To seek and obtain gift tax status through the category best related to Sporting and Educational Development and Research.
(l) To seek lawfully obtained funds from Australian and overseas authorities and benefactors dedicated to sporting development, and to invest such funds in real estate acquisitions or other similar solid investments.
(m) To invite overseas players to Australia and to visit overseas venues with Australian players in annual exchange programmes.
(n) To share expertise in Club management, team training, refereeing, paramedical, fundraising and any other sporting related expertise in all sporting codes both within Australia and overseas.
(o) To prepare and materially support players to qualify for District, State, National, Commonwealth, International and Olympic standard sporting events.
…
8.0 General Membership
General Membership shall consist of players, parents of players or any other interested person who has attained the age of eighteen years.
9.0 Nomination of General Members
9.1 To be nominated as a General Member the person must:
(a) be a natural person;
(b) be an Australia Citizen;
(c) be nominated by two General Members or Life Members or a combination thereof;
(d) complete the Application for Membership Form as set out in Appendix 1 to this Constitution;
(e) submit the Application to the Secretary of the Club; and
(f) enclose the appropriate membership fee.
9.2 After receiving a nomination for General membership, the Secretary must, as soon as practicable, refer the nomination to the Management Committee which is to determine whether to approve or to reject the nomination.
9.3 The Management Committee must send its determination in writing to the Board of Life Members.
10.0 Rights of General Members
A General Member may:
(a) Vote at any Annual General Meeting or Special General Meeting;
(b) Nominate for candidature in an election of the Management Committee;
(c) Move, second and/or speak to any motion, proposal or question before any Annual General or Special General Meeting of the Club; and
(d) Make representations orally or in writing at any meeting in which their General Membership is under consideration.
11.0 Cessation of General Membership
A person ceases to be a General Member of the Club if the person:
(a) dies; or
(b) resigns membership in writing; or
(c) is expelled from the Club;
(d) is or has been declared bankrupt; or
(e) has been convicted of criminal charge anywhere in Australia; or
(f) becomes a non-financial member by virtue of not paying annual membership fee within 28 days of a written request by Secretary; or
(g) provides false information or makes a false declaration on their application for General membership; or
(h) ceases to be a citizen of Australia.
12.0 Life Membership
Life Members shall be persons who have founded the Club, or whose contribution to the Club is much esteemed, or who are General Members who have been nominated to the College of Life Members and have been accepted by the Board of Life Members to become one of the Life Members in the College of Life Members. Once accepted, the position of Life Member requires full participation in the governing of the Club's activities.
…
22.0 Disciplining of General Members
22.1 A complaint may be made by any General Member or Life Member of the Club that a General Member of the Club:
(a) has persistently refused or neglected to comply with a provision or provisions of these rules; or
(b) has persistently and wilfully acted in a manner prejudicial to the interests of the Club.
22.2 On receiving such a complaint the Management Committee shall deal with the complaint in accordance with the current Policy and Procedures Manual.
Part 3 - The Management Committee
23.0 Powers of the Management Committee
The Management Committee of the Club, subject to the Act, the Regulation and these Rules and to any resolution passed by the Club in General Meeting and subject to resolutions passed by the Board of Life Members in general meetings:
(a) shall control and manage the day to day affairs of the Club; and
(b) may exercise all such functions as may be exercised by the Club, other than those functions that are required by these rules to be exercised by the Board of Life Members, or a General Meeting of General Members of the Club; and
….
29.0 Removal of Members of Management Committee
29.1 The Club in General Meeting may by resolution remove any member, except the Life Member Delegate, of the Management Committee from the office of member before the expiration of the member's term of office and may by resolution appoint another person to hold office until the expiration of the term of office of the member so removed….
…
Part 4 - The Board of Life Members
33.0 Powers of the Board of Life Members
The Board of Life Members of the Club is empowered to:
…(f) dissolve the Management Committee and appoint an interim care-taker committee of three Life Members if there is sufficient material evidence that a majority of the Management Committee members have acted or voted in matters of the Club:
i. in their own personal or financial interests rather than in the interests of the Membership as a whole; or
ii. such that their decisions have proved oppressive or unfairly prejudicial to, or unfairly discriminatory against one or more General or Life members or in a manner that is contrary to the interests of the membership of the Club as a whole, or
iii. such that they conceal what should be published by law and by best practice to the Membership, or reveal in a public or private forum what should remain within the trust of the officials of the Club; or
iv. in any other manner whatsoever which is contrary to the Rules, objectives and long-term interests of the Club…"
[6]
Power of Expulsion
It will be observed that cl 18 gives an express power to the Management Committee to suspend or expel a Player Member. It does not give any power to expel a General Member. Clause 22 does provide for complaints against General Members to be dealt with by the Management Committee, but:
1. the clause does not speak of expulsion; and
2. the clause requires the Management Committee to deal with the complaint "in accordance with the current Policy and Procedures Manual".
Clause 22 required that there be a complaint made by either a General Member or a Life Member. It does not state specifically that the complaint had to be made to the Management Committee but that must be inferred. The complaint was not required to be written. Clause 22, however, did make it mandatory that the complaint be dealt with in accordance with the current PPM.
Without knowing the contents of the current PPM it is not possible to determine whether the combined effect of cl 22 and the PPM granted to the Management Committee the power to expel a General Member. I am prepared to accept that it should be inferred that cl 22 envisaged that expulsion was an option covered by the PPM because the two matters specified in cl 22.1(a) and (b) are serious matters and are consistent with the Expulsion Term. It cannot, however, be assumed that a policy and procedure manual would give the Management Committee the power to expel, because there are a number of possible outcomes of a disciplinary hearing, one of which, for example, is that the relevant tribunal established to investigate a complaint is given only the power to recommend to a General Meeting expulsion of the member: see N. Stewart QC, N. Campbell and S. Baughen, The Law of Unincorporated Associations (2011, Oxford University Press) at 6.07. I note that the Model Constitution (which was not adopted by ANSCI) permits a committee to expel a member, but gives a right of appeal of the member to "the association in general meeting": see cll 11 and 12 of the Model Constitution which can be found in Schedule 1 of the Associations Incorporation Regulation 2016 (NSW).
Expulsion must be exercised in "strict compliance" with the rules of the Constitution: see Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 per White J at [43], Lowe v Australian Chinese Community Association of NSW (No 2) [2010] NSWSC 1375 per Slattery J at [36].
[7]
Estoppel
I turn now to the "estoppel defence". ANSCI contends that the Plaintiffs are estopped from challenging their expulsion due to the lack of power in the ICC to take that step.
The Defendant's Opening Submissions at paragraph 3.10 accept that to establish conventional estoppel ANSCI has to establish:
"(a) the plaintiff has adopted an assumption as to the terms of its legal relationship with the defendant;
(b) the defendant has adopted the same assumption;
(c) both parties have conducted their relationship on the basis of that mutual assumption;
(d) each party knew or intended that the other act on that basis; and
(e) departure from the assumption will occasion detriment to the plaintiff."
: see Moratic Pty Ltd v Lawrence James Gordon and Anor [2007] NSWSC 5 at [32] (approved in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at 644), and see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244-245.
ANSCI claims that because none of the Plaintiffs raised absence of power in the Interim Management Committee to expel at the time of receipt of the show cause letters, or at the time of expulsion or even in their Statement of Claim filed 15 August 2018, it should be inferred that all of the parties were proceeding on the basis that the ICC had the power to expel the Plaintiffs. ANSCI claims that it relied on the mutual assumption in making the decision to expel and that detriment would be occasioned to ANSCI if the Plaintiffs were permitted to resile from that mutual assumption.
Given that the letters sent by the ICC were expressed to be from the "Interim Management Committee" rather than the ICC, it would seem that the members of the ICC were not sure in what role they were acting. There was no evidence from the members of the ICC as to what they assumed or the basis for their assumption. It might be open to infer that ANSCI believed that the ICC did have the power to expel, but there is no evidence that the Plaintiffs had, prior to the expulsion, made an assumption that the ICC had such power or that the Interim Management Committee was to be understood as the ICC - what Mr Kabbara and Mr Moussa did was to seek, in effect, further particulars of the complaints made against them, requests that were not answered. There is no evidence from the ICC of reliance on something done or said by the Plaintiffs and reliance is a necessary ingredient for conventional estoppel: see Ryledar (supra) at [202] per Tobias JA with whom Mason P and Campbell JA concurred.
[8]
Mr Moussa
The allegation against Mr Moussa is that he stood for and accepted the position of Life Member when he was not entitled to become a Life Member. Mr Moussa having been a General Member for at least three years was entitled to become a Life Member in 2014 and Ms Tabbaa accepted that (albeit reluctantly) in the witness box: see T105.6-T106.12 and T132.5-T136.1 and see also the Minutes of Meeting of Life Members held 10 September 2015 at CB 309.
Mr Moussa had replied to the show cause letter expressing bewilderment at the allegation and seeking clarification which was never provided to him: see CB 506-7. Ms Tabbaa advanced reasons for criticism of Mr Moussa some of which were related to his conduct after his expulsion (which matters could not justify his expulsion).
The complaint against him was advanced only in March 2018 and this notwithstanding the fact that in 2016 when Mr Moussa was told that some of the people who had voted for him had not been eligible to vote, he accepted the decision of ANSCI that he could not remain as a Life Member and was "regressed" to a General Member.
There was no legitimate basis for ANSCI to assert that the requirements of the Expulsion Term had been met in respect of Mr Moussa.
[9]
Mr Barake
The allegations against Mr Barake were that he had refused to return ANSCI documents and behaved in an aggressive and hostile manner when this was raised with him.
The evidence before the Court establishes that Mr Barake was handed documents by an employee of ANSCI, Mr Pickering, for safe keeping in a context in 2017 of an outbreak of hostilities between those who supported Mr Kabbara and other members of the Management Committee installed in September 2015 and those who did not. Mr Pickering had been the Duty Manager of ANSCI at the time and was also the Secretary of the Management Committee of ANSCI. At the time that Mr Barake received the ANSCI documents from Mr Pickering he was not aware that he, as part of the Management Committee, had been dismissed by the Board of Life Members. When ANSCI (under the ICC) required Mr Barake, by a call from Mr Pickering (under instructions of Mr Hawatt, a Life Governor of ANSCI) on a Friday to return the documents held by him he did so on the following Monday. There was correspondence between ANSCI's solicitors and Mr Barake (at CB 350) in which it was asserted that he had taken ANSCI documents to the real estate agency for whom he worked but he denied that he had done so and that allegation was not maintained against him by ANSCI. ANSCI through Ms Tabbaa's evidence claimed that Mr Barake had kept ANSCI documents in the boot of his car for two weeks because, she claimed, he told her so. I do not accept Ms Tabbaa's evidence that Mr Barake told her he had kept documents in the boot of his car for two weeks for the following reasons:
1. Mr Barake denied that he said that;
2. there is no evidence that he did so;
3. the evidence supports the conclusion been given by Mr Barake that he returned all the documents of ANSCI that he had on the Monday as he says he did - the period in which he held the documents was three days not two weeks;
4. Ms Tabbaa gave two different versions of the conversations: see paragraph 55 of her affidavit of 1 October 2020 (at CB 733) and paragraph 120 in her affidavit of 13 March 2019 (at CB 161), and when cross examined claimed that the sequence of events stated in her affidavit of 1 October 2020 (which was shown to be very unlikely) was wrong (see T140-T145); and
5. notwithstanding her claim that Mr Barake had told her on 12 March 2017 (see CB 161) that he had kept the ANSCI documents in the boot of his car for two weeks, she did not ensure that allegation that he had done so was contained in ANSCI's solicitor's letters to Mr Barake of 13 March 2017 (see CB 350) and indeed as I have noted that letter contained a contrary assertion as to what Mr Barake had done with the documents.
[10]
Mr Kabbara
The complaint against Mr Kabbara is that he established, operated and/ or recruited for the Punchbowl United Football Club ("PUFC") and served as the CDSFA Representative Complains & Conflict Resolutions Officer of the PUFC (I shall refer to this position as "the Complaints Officer" by way of shorthand). Punchbowl and Lakemba (where the ANSCI is located) are neighbouring suburbs.
The following facts emerge from the evidence:
1. Mr Kabbara had been involved with ANSCI at the age of 10 as a player and then from age 14 (in 1995) had acted as a soccer referee. He became a General Member of ANSCI for the first time in August 2014 with the encouragement of the late Mr Abdullah Tabbaa with whom he had a friendship. Mr Tabbaa was a founding member of ANSCI.
2. Mr Kabbara became President of the Management Committee within two weeks of joining as a General Member, i.e. on 14 September 2014.
3. Prior to him becoming President, Ms Tabbaa was the president. Ms Tabbaa is the sister of Mr Tabbaa. Mr Tabbaa died in May 2015.
4. In September 2015 there was a meeting of the Life Members of ANSCI. There are minutes of that meeting at CB 302.
5. According to the minutes of the Meeting of Life Members, on 10 September 2015 (at CB 310), it was reported that Mr Pickering advised the meeting of the following matters:
"Abdallah Tabbaa and Sheikh Shady came to an agreement that the outstanding amount of money the club owed to its debtors would be donated from Sheikh Shady in order for the club to pay off its debts if ten of his associates were accepted as General members.
Once the General memberships were accepted for the ten associates of Sheikh Shady the Agreement was changed so that the money would be donated if nine of these members were added to the management committee.
After these members were nominated and accepted onto the management committee at the 2014 AGM on the 14/9/14 the agreement was changed so that money would be donated if five of these members were nominated and accepted into the Life member's college."
1. The debts which ANSCI had at the time were debts to a Mr Issa and to the MCCA Bank and were of the order of $500K to $600K: see T31.16-22.
2. Mr Sheikh Shady Alsuleiman ("Sheikh Shady") is connected with an organisation known as the United Muslims of Australia ("UMA"). Sheikh Shady has, it appears, a high profile in the Muslim community in Sydney and is Chairman of the Australian National Imams Council ("ANIC"). Ms Tabbaa deposed to a view that the stated objectives and interest of Sheikh Shady and the UMA "are antithetical to the objects of the Club as set out in its Constitution" (see paragraph 21 of her first affidavit at CB 144), although the basis of this assertion was not set out and not explored in cross examination of Ms Tabbaa. Ms Tabbaa does explain her concerns about Sheikh Shady's interest in the rezoning of ANSCI's premises and desire to unite "all Muslim organisations and Centres in the area" at paragraph 22 of her affidavit of 13 March 2019 at CB 144, and see CB 326-331.
3. Mr Kabbara denied that he was an associate of Sheikh Shady: see T32.4-10. He identified the following persons as connected with the UMA: Mr Mohamed Charchouh (the Twelfth Plaintiff) and Mr Masen Abou-Zolof (the Eleventh Plaintiff) as two such persons. These two persons were present at the meeting of September 2015. Other members identified by Ms Tabbaa as associates of Sheikh Shady or connected with the UMA are Mr Ibrahim Zadoum, Mr Youssef Ismail, Mr Barake, Mr Omar Chaar (the Eighteenth Plaintiff), Mr Ibrahim Sukari (the Fourteenth Plaintiff), Mr Khalid Mousa (the Tenth Plaintiff) and Mr Mohammad Hamdoush and Mr Mohammed Kourouche (the Seventeenth Plaintiff): see T130-131 and also T87-88.
4. Mr Kabbara had earlier attended a meeting at which Sheikh Shady and Mr Desoukey and Ms Tabbaa were present. Mr Kabbara said that there were discussions concerning payment of ANSCI's debts by Sheikh Shady or the UMA provided the UMA controlled ANSCI, and the amount of the debt was possibly discussed (see T36), but the focus of the discussion was an explanation by Sheikh Shady of the programs that the UMA offered and Ms Tabbaa "wanting to know who these people were cause she didn't know them": T36.47-8.
5. The only money that Sheikh Shady or the UMA actually paid to ANSCI was approximately $20K towards the costs of prayers and for the hire of indoor soccer courts to run a youth program: see T39.3-5.
6. In early 2017, after dissolution of the Management Committee proceedings were commenced by ANSCI against a number of defendants including Mr Kabbara, Mr Barake and Mr Moussa. On 24 May 2017 consent orders were made which included a notation of undertakings given by Mr Kabbara (and by the other defendants in those proceedings): see CB 427. Mr Kabbara was at that time still a General Member of ANSCI and he remained so until his expulsion from ANSCI in March 2018.
7. Mr Kabbara accepted that on becoming a General Member of ANSCI he had agreed to be bound by the Constitution, and he was familiar with its terms. He accepted that he had agreed, as a General Member, to carry out the objects of ANSCI.
8. Mr Kabbara attended an AGM of the CDSFA on 27 November 2017 and signed himself in as representing ANSCI: T43.12-17. ANSCI claimed that that conduct was a breach of his undertaking to the Court and constituted a contempt of Court.
9. After the sacking of the Management Committee in 2018, Mr Kabbara decided, with others, to establish a new soccer club which became known as the Punchbowl United Football Club ("PUFC"). He was involved in the application to the Department of Fair Trading made on behalf of the PUFC, the adoption of a Constitution, affiliating the PUFC with CDSFA, and arranging for an external consultant to prepare a development plan for the PUFC (see T43), he read and agreed with that plan: see T44.4. He became the Complaints Officer for the PUFC.
10. The first meeting of the PUFC was on 9 January 2018: T44.8.
11. Mr Kabbara agreed that he had a plan to set up a new soccer club "and run it": T44.14-16.
12. Mr Kabbara was involved in organising coaches for the PUFC: see Exhibit 2 and T45, and he was the Complaints Officer for PUFC and the CDSFA representative of PUFC: see paragraph 59 of his affidavit of 24 January 2019 at CB 113.
13. By 1 March 2018 Mr Samer Elkhouzi of the PUFC informed Mr Kabbara that the PUFC had 264 players and 23 teams: see Exhibit 2 at 16.
14. Mr Kabbara was advising parents what to do if ANSCI would not permit players to transfer from ANSCI: see T46.
15. Empire Constructions and United Security were two companies that had been sponsors of ANSCI until United Security came to sponsor the PUFC: see T47.30.
16. Mr Kabbara was at 9 January 2018 devolving his energies to the PUFC and none to ANSCI: see T47.35-37, and not fulfilling the objectives of ANSCI: see T47.49 to T48.9.
17. Mr Kabbara accepted that if he was successful in getting teenage boys to play soccer for PUFC they would not be playing for ANSCI. He did say the choice would be that of the players: T49.17, and he advertised for boys to join PUFC and knew that "there would be players who had been with the club ANSC who were going to come and play with PUFC": see T49.35.
18. The development plan to which I have earlier referred was adopted by Mr Kabbara and the PUFC members: T50.1-3 and Mr Kabbara was one of the key committee members of PUFC involved in developing the plan.
19. The PUFC development plan identified (see CB 457) ANSCI as one of its competitors. Mr Kabbara agreed that it showed ANSCI as a competitor: T51.6, but in re-examination (at T68.15) he said it meant competition on the soccer field, which I did not find at all convincing. It is obvious that the Development Plan (at CB 457) is referring to competition for consumers not competition in the soccer games - the previous section on the same page refers to "Customer Analysis" and indeed under the heading "Competitor Analysis" there is a reference to "Other clubs in the CDSFA - in particular Roselands Raptors FC, Lakemba Sports Club and Australian National Sports Club" and then identified as further competitors are "Other sporting clubs offering various sports such as Rugby League, Netball and AFL."
20. Mr Kabbara explained to the first board meeting of PUFC that PUFC "was being re-established within the CDSFA and how it would assist players and parents historically from [ANSCI] to have a choice to train and play with another new Club especially if they live in Punchbowl area": see CB 486, and that is what Mr Kabbara wanted to achieve: see T51.33.
21. Approximately 42% of the Player Members of PUFC had a previous involvement with ANSCI: T52.25.
22. The first board meeting of PUFC was held at the offices of the ANIC. Sheikh Shady is the President of ANIC and Mr Kabbara is the Community Safety and Security Advisor of ANIC: see T65.
23. More than 50% or even possibly more than 80% of the more than $200K of fees incurred on behalf of the Plaintiffs in these proceedings are being paid by the UMA: see T66.25-42. Without the UMA's financial support Mr Kabbara conceded the Plaintiffs could not afford to bring these proceedings: see T67.11.
[11]
Alleged Breach of the Fairness Term for all Test Plaintiffs
The following is clear from the evidence:
1. Ms Tabbaa was the person who made the complaints to the Committee concerning each of the Plaintiffs.
2. Ms Tabbaa was one of the members of the ICC who decided to issue the show cause letters and who determined the outcome.
3. Ms Tabbaa had been the person giving instructions for the commencement of proceedings against Mr Kabbara, Mr Barake and Mr Moussa in May 2017: T110.39-T111.24. Those proceedings included allegations against Mr Kabbara of a serious kind and Ms Tabbaa in an affidavit verified the truth of the allegations: see T149.20.
4. In respect of Mr Moussa it seems clear that it was Ms Tabbaa who had formulated the basis of the complaint against Mr Moussa and made the complaint and he was one of the persons who ANSCI had sued in the earlier proceedings at her instigation.
5. Ms Tabbaa had given instructions to ANSCI's lawyers to bring a contempt charge against Mr Kabbara in connection with his actions following orders and undertakings made and given in 2017. Ms Tabbaa had sworn an affidavit in connection with that charge: see T149.13.
6. Mr Kabbara had in May 2017 prepared a letter in draft of which Ms Tabbaa was on notice in which he accused Ms Tabbaa of a number of matters, some of them quite serious: see CB 396-398 and T110.26-37.
7. Ms Tabbaa felt very strongly that Mr Kabbara had betrayed her brother Abdullah (who was by then deceased), which she described as "the ultimate stab in the back": see T147.47-148.3.
8. Ms Tabbaa was one of the people who claimed that Mr Kabbara was not fit to sit on the Management Committee of ANSCI: see CB 341 and T148.34.
9. The only way that Mr Kabbara could have prevented his expulsion from ANSCI in Ms Tabbaa's mind was for him to resign from the PUFC: see T149.36-39.
10. Mr Desoukey was also a member of the ICC and determined that the show cause letters be sent to each of Mr Kabbara, Mr Moussa and Mr Barake, and that each of them should be expelled.
11. Mr Desoukey sets out at paragraph 40 of his affidavit of 29 April 2019 (at CB 177) the reasons why, in his view, Mr Kabbara should not be a member of ANSCI. None of those reasons appear in the show cause letter sent to Mr Kabbara.
12. Mr Desoukey sets out at paragraph 70 of his affidavit (at CB 181) the reasons why Mr Barake should not, in his view, remain a member of ANSCI. None of those matters are mentioned in the show cause letter sent to Mr Barake.
13. Mr Desoukey in paragraphs 66 and 67 of his affidavit (at CB 181) sets out the reasons why Mr Moussa "is and remains" unfit to be a member of ANSCI but the reasons are not the reasons identified in the show cause letter sent to Mr Moussa.
14. Mr Salam has given no evidence of his role in the decision making of the ICC.
[12]
Condonation, acquiescence, "waiver", and/or election by ANSCI
Another issue identified is that the Plaintiffs contend that ANSCI could not advance a case for expulsion against Mr Moussa and Mr Barake when it had permitted each of them to remain as a member and received their fees following their alleged breaches. ANSCI contends that until it had presented the complaint to Mr Moussa and to Mr Barake it had no right to expel either of them, so ANSCI was not confronted with two mutually exclusive courses of action. The advancing of a complaint so long after the events the subject of the complaint is perhaps the more appropriate focus of the enquiry, rather than the expulsion. Given my conclusion on other matters, however, it is not necessary to determine this issue.
[13]
No Practical Injustice
ANSCI contends that even if the Plaintiffs are successful in establishing a lack of power to expel, a breach of cl 10.0(d) of the Constitution, a breach of the Expulsion Term, and a breach of the Fairness Term, there is no "practical injustice" to the Plaintiffs.
In this connection ANSCI in the DCS refers to cases in the field of administrative law, contending that for an error to be jurisdictional, thus giving rise to an entitlement to relief, it must be material and to be material the error "must have deprived the affected party of more than a remote or fanciful prospect of a different outcome": see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [47] and [48] (and see paragraph 11.2 to 11.5 of the DCS).
Reference at paragraph 11.3 of the DCS is also made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ:
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
No authority was cited by ANSCI to support the importation to the present context of concepts from administrative and migration law and Mr Furlan contended that the rules in relation to administrative law do not apply in this area. Whilst I think that there is some force in Mr Furlan's point, even assuming that they are applicable, they could only be relevant to the question of the breach of procedural fairness, not to the issue of the Expulsion Term and even more obviously not to the absence of the power to expel. I have found that the ICC had no power to expel members given the absence of any express power in cl 22 and the absence of any PPM. I have also found that Ms Tabbaa could not fairly sit in judgment on Mr Kabbara, Mr Barake or Mr Moussa, so this provides an additional basis for the conclusion that the Plaintiffs were not validly expelled from ANSCI. When bias of a member of the disciplinary tribunal is established, or even reasonably suspected, the decision of the tribunal is null and void: see Dickason (supra), Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, The Law of Unincorporated Associations (supra) at 6.15, and Allinson v General Council of Medical Education & Registration [1894] 1 QB 750; [1891-4] All ER Rep 768.
[14]
Discretionary Defences
ANSCI seeks to raise what have been described as "discretionary defences", i.e. that to make the declaration would be of no utility and would give rise to further disputes.
By the DCS, ANSCI (see paragraphs 12.1 to 12.15) contends that the Court should refuse to grant declaratory relief because:
1. The Plaintiffs have no real interest in remaining as members. They have established another club (PUFC) which is thriving.
2. There are no proprietorial rights connected with membership of ANSCI.
3. "The Life Members, who are the custodians of [ANSCI], and the other members do not want them back": at paragraph 12.7 of the DCS.
4. The interpretation of the Constitution must take its meaning from the objective intentions of the parties who have agreed to be bound by it.
5. The Court should strive to give meaning to the contract embodied in the Constitution.
6. There is no practical utility in granting the Plaintiffs the relief they seek, and declarations would only give rise to further disputes.
7. The Plaintiffs are being funded by others.
No discretionary defence is pleaded by ANSCI, and it should not be permitted to advance these arguments. In the light of this conclusion I will deal with the Defendant's contentions briefly.
The matters at [81(4)] and [81(5)] are not relevant to the question of discretion.
In relation to [81(2)], it is true that there are no proprietorial rights connected with membership, but the principles relevant to contractual interpretation and the consequences of breaches of terms remain important, as cases such as Hornby (supra), McClelland (supra) and Goodwin (supra) demonstrate.
In relation to [81(3)] there is no evidence of what the Life Members other than Ms Tabbaa want. Mr Hawatt, Mr Salam, and Mr Mohammed Dahir were not called in ANSCI's case. There is no evidence of what the General Members who remain as such want. There are, the Court was informed, only 43 members following the expulsion of the Plaintiffs. Since the Plaintiffs constitute 19 of the 62 General Members, they would need only 13 members to oppose their expulsion at a General Meeting.
In relation to [81(1)], [81(6)] and [81(7)], those presently controlling ANSCI may well feel threatened by what they see as a potential takeover by persons connected with the UMA and/or Sheikh Shady and now the PUFC. ANSCI had sought to establish that the removal of the Management Committee in 2017 was valid but it abandoned that case when it had expelled the Plaintiffs from ANSCI.
[15]
Conclusion
The Plaintiffs have been successful and it follows that declarations in the form sought in paragraphs 1 to 14 and 16 to 19 of the FASTOCL should be made, namely:
"1. A declaration that the expulsion of the First Plaintiff, Youcef Shaouki Kabbara, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
2. A declaration that the expulsion of the Second Plaintiff, Natasha Hill, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
3. A declaration that the expulsion of the Third Plaintiff, Ilham Alameddine, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
4. A declaration that the expulsion of the Fourth Plaintiff, Nader Tabbaa, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
5. A declaration that the expulsion of the Fifth Plaintiff, Dawood Goddard, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
6. A declaration that the expulsion of the Sixth Plaintiff, Ahmed Faysal, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
7. A declaration that the expulsion of the Seventh Plaintiff, Taj Faysal, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
8. A declaration that the expulsion of the Eighth Plaintiff, Khaldoun Moussa, as a General Member of the Australian National Sports Club Incorporated on 10 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
9. A declaration that the expulsion of the Ninth Plaintiff, Bassam Barake, as a General Member of the Australian National Sports Club Incorporated on 13 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
10. A declaration that the expulsion of the Tenth Plaintiff, Khalid Majid Mousa, as a General Member of the Australian National Sports Club Incorporated on 10 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
11. A declaration that the expulsion of the Eleventh Plaintiff, Masen Abou-Zolof, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
12. A declaration that the expulsion of the Twelfth Plaintiff, Mohamed Charchouh, as a General Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
13. A declaration that the expulsion of the Thirteenth Plaintiff, Talal Elcheikh, as a Life Member of the Australian National Sports Club Incorporated on 5 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
14. A declaration that the expulsion of the Fourteenth Plaintiff, Ibrahim Sukari, as a General Member of the Australian National Sports Club Incorporated on 10 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
…
16. A declaration that the expulsion of the Sixteenth Plaintiff, Wissam Faysal, as a Life Member of the Australian National Sports Club Incorporated on 10 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
17. A declaration that the expulsion of the Seventeenth Plaintiff, Mohammad Kourouche, as a General Member of the Australian National Sports Club Incorporated on 18 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
18. A declaration that the expulsion of the Eighteenth Plaintiff, Omar Chaar, as a General Member of the Australian National Sports Club Incorporated on 18 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect.
19. A declaration that the expulsion of the Nineteenth Plaintiff, Rowah Hassan, as a General Member of the Australian National Sports Club Incorporated on 13 April 2018 by Sherif Desoukey, Abdalla Salam and Inaam Tabbaa, purporting to act as an interim care-taker committee, was in breach of the Constitution of the Australian National Sports Club Incorporated dated 27 November 2010, invalid and of no effect."
[16]
Costs
There was agreement between Counsel that the issue of costs should await the handing down of these reasons. I will list the matter for directions on the costs issue this Friday, 18 June 2021 at 10:00am.
[17]
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: 23 June 2021
Declarations were made that the expulsions identified in the judgment, including those of the Test Members, were in breach of ANSCI's Constitution, invalid and of no effect. The issue of costs was listed for directions on 18 June 2021.
The only express reference to expulsion in the Constitution is found in cl 11.0(c), which provides that a person ceases to be a General Member of ANSCI if that person is expelled from ANSCI. Clause 22, although it deals with disciplining of members, does not itself refer to expulsion.
It will be observed that cl 22 makes reference to a current "Policy and Procedures Manual" ("PPM"). In reply to the letters of Mr Kabbara of 5 April 2018 and of Mr Moussa of 10 April 2018 at CB 509 and 510 (which asserted that ANSCI has written polices and procedures to be followed in respect of complaints and discipline), the Interim Management Committee wrote:
"…you seek to comment on a policy that does not exist…"
ANSCI's SFAD at paragraphs 45K asserts that "there was no current Policy and Procedures Manual of the Defendant". Mr Kabbara in cross examination said his understanding was that there was a PPM in place in 2018 (see T58.38 and T65.15), but at T59.12-20 said that although there was a discussion about a PPM, nothing was adopted whilst he was President and see Ms Tabbaa's evidence at paragraphs 41 and 42 of her affidavit of 1 October 2020 at CB 731. No PPM has been produced to the Court by either the Plaintiffs or ANSCI. I am not persuaded that any PPM dealing with disciplinary matters was ever adopted by ANSCI, but if in fact there was such a policy, it is made abundantly clear by the ICC that it paid no regard to it in dealing with the complaints against the Plaintiffs.
The reasons put forward by ANSCI for the expulsion of Mr Kabbara are found in a letter sent by Ms Tabbaa, Mr Desoukey and Mr Salam, who described themselves as the "Interim Management Committee", rather than as the ICC.
I set out the contents of the letter to Mr Kabbara of 27 March 2018 (at CB 496) in full, with emphasis added by me:
"Dear Mr Kabbara,
YOUR POTENTIAL EXPULSION AS A GENERAL MEMBER OF THE AUSTRALIAN NATIONAL SPORTS CLUB INC. (THE CLUB)
Pursuant to Clause 11.0(c) of our Constitution dated 27 November 2010, you cease to be a General Member if you are expelled from the Club.
The Interim Management Committee is considering expelling you as a General Member of the Club because, contrary to Clause 22.1(b) of the Constitution, you persistently and wilfully acted in a manner that is prejudicial to the interests of the Club by establishing, operating and/or recruiting for, the Punchbowl United Football Club Incorporated, as well as serving as the "CDSFA Representative Complaints & Conflict Resolution" Officer of the Punchbowl United Football Club.
You have 7 (seven) days from the date of this letter to respond to these matters in writing. If you fail to respond within this time a decision will be taken as to your General Membership.
If you respond within the time set limit your response will be considered and you will be advised of the decision with respect to your General Membership of the Club.
Yours faithfully
Sherif Desoukey
Abdalla Salam
Inaam Tabbaa
Per/ Interim Management Committee"
The letter was signed by Mr Desoukey.
The reasons for the expulsion of Mr Moussa are found in a letter sent by the Interim Management Committee on 29 March 2018 (at CB 503), with emphasis added by me. I set out the contents of that letter in full:
"Dear Mr Moussa,
YOUR POTENTIAL EXPULSION AS A GENERAL MEMBER OF THE AUSTRALIAN NATIONAL SPORTS CLUB INC. (THE CLUB)
Pursuant to Clause 11.0(c) of our Constitution dated 27 November 2010, you cease to be a General Member if you are expelled from the Club.
The Interim Management Committee is considering expelling you as a General Member of the Club because, contrary to Clause 22.1(b) of the Constitution, you persistently and wilfully acted in a manner that is prejudicial to the interests of the Club by standing for and accepting the position of Life Membership when you were not entitled to become a Life Member.
You have 7 (seven) days from the date of this letter to respond to these matters in writing. If you fail to respond within this time a decision will be taken as to your General Membership.
If you respond within the time set limit your response will be considered and you will be advised of the decision with respect to your General Membership of the Club.
Yours faithfully
Sherif Desoukey
Abdalla Salam
Inaam Tabbaa
Per/ Interim Management Committee"
The letter was signed by Mr Desoukey.
The reasons for the expulsion of Mr Barake are found in a letter dated 5 April 2018 (at CB 508). I set out the contents of that letter in full (with emphasis added by me):
"Dear Mr Barake,
YOUR POTENTIAL EXPULSION AS A GENERAL MEMBER OF THE AUSTRALIAN NATIONAL SPORTS CLUB INC. (THE CLUB)
Pursuant to Clause 11.0(c) of our Constitution dated 27 November 2010, you cease to be a General Member if you are expelled from the Club.
As you will appreciate, the Club needs its General Members to uphold and further its Objects and interests. An important part of this is that the General Members do not act or potentially act in way that is incompatible with these objectives.
The Interim Management Committee is considering expelling you as a General Member of the Club because, contrary to Clause 22.1(b) of the Constitution, you persistently and wilfully acted in a manner that is prejudicial to the interests of the Club in refusing to return Club documents and behaving in an aggressive and hostile manner when this was raised with you.
It is also understood that you kept Club documents in the boot of your car where you had no authority to do so and such action jeopardised the security and confidentiality of the documents.
You have 7 (seven) days from the date of this letter to respond to these matters in writing. If you fail to respond within this time a decision will be taken as to your General Membership.
If you respond within the time set limit your response will be considered and you will be advised of the decision with respect to your General Membership of the Club.
Yours faithfully
Sherif Desoukey
Abdalla Salam
Inaam Tabbaa
Per/ Interim Management Committee"
The letter was signed by Mr Desoukey.
Mr Kabbara and Mr Moussa both responded to the letters sent to them within seven days seeking, in effect, particulars of the complaint made against them: see CB 504-5 and CB 506-7. Mr Barake did not respond to the Interim Management Committee's letter. I shall refer to the letters from the Interim Management Committee to the Plaintiffs as "show cause" letters.
The Plaintiffs provided a list of Issues for Determination by the Court (at CB 658) and the Defendant agreed that this list contained all the relevant issues for determination. As set out in that document, the issues for determination by the Court are:
"Power of expulsion
1. Was the power to expel members from the ANSC only exercisable by the General Members of the ANSC at a General Meeting?
2. If not, was the power to expel members from the ANSC only exercisable by the Management Committee of the ANSC?
Disciplinary process: clause 22 of the Constitution
3. Did clause 22 of the Constitution require:
(a) that a complaint for the purposes of clause 22 of the Constitution (Complaint) must be received by the Management Committee?
(b) that the Management Committee must deal a Complaint?
Test Member One: Youcef Shaouki Kabbara (First Plaintiff)
Decision not made by General Members or Management Committee
4. Was the decision to expel Mr Kabbara from ANSC on 5 April 2018 (Kabbara Expulsion) invalid and of no effect because:
(a) it was not made by the General Members of the ANSC at a General Meeting?
(b) it was not made by the Management Committee of the ANSC?
Estoppel Defence
5. If the matters pleaded at paragraphs 12AC-12AG of the Further Amended Defence are established, is Mr Kabbara estopped from denying that the Interim Caretaker Committee was empowered to expel him from the ANSC?
Clause 10(d) of the Constitution
6. By reason of Mr Kabbara not being given the opportunity to make representations orally at any meeting in which his General Membership was under consideration (which is admitted), was the Kabbara Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
7. Was Mr Kabbara not given the opportunity to make representations in writing to any meeting in which his General Membership was under consideration?
8. If so, was the Kabbara Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
Clause 22 procedure
9. By 5 April 2018, had a Complaint been made against Mr Kabbara?
10. If not, was the Kabbara Expulsion invalid and of no effect?
11. Was the Kabbara Expulsion invalid and of no effect because:
(a) by 5 April 2018, the Management Committee had not received a Complaint about Mr Kabbara?
(b) by 5 April 2018, the Management Committee had not dealt with a Complaint about Mr Kabbara?
(c) by 5 April 2018, the Management Committee had not dealt with a Complaint about Mr Kabbara in accordance with the current Policy and Procedures Manual?
Alleged Breach of Fairness Term
12. Was the Kabbara Expulsion in breach of the Fairness Term because Mr Kabbara was not afforded procedural fairness for any one or more of the specific reasons particularised at (i) to (x) of paragraph 61 of the FASOC?
13. If so, was the Kabbara Expulsion invalid and of no effect?
Alleged Breach of Expulsion Term
14. By 5 April 2018, had Mr Kabbara persistently and wilfully acted in a manner prejudicial to the interests of ANSC by doing any of the things of which he was accused by the 27 March 2018 letter from Sherif Desoukey, Abdalla Salam and Inaam Tabbaa (YK Letter)?
15. If not, was:
(a) the Kabbara Expulsion in breach of the Expulsion Term?
(b) invalid and of no effect?
Test Member Two: Khaldoun Moussa (Eighth Plaintiff)
Decision not made by General Members or Management Committee
16. Was the decision to expel Mr Moussa from ANSC on 10 April 2018 (Moussa Expulsion) invalid and of no effect because:
(a) it was not made by the General Members of the ANSC at a General Meeting?
(b) it was not made by the Management Committee of the ANSC?
Estoppel defence
17. If the matters pleaded at paragraphs 12AC-12AG of the Further Amended Defence are established, is Mr Moussa estopped from denying that the Interim Caretaker Committee was empowered to expel him from the ANSC?
Clause 10(d) of the Constitution
18. By reason of Mr Moussa not being given the opportunity to make representations orally at any meeting in which his General Membership was under consideration (which is admitted), was the Moussa Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
19. Was Mr Moussa not given the opportunity to make representations in writing to any meeting in which his General Membership was under consideration?
20. If so, was the Moussa Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
Clause 22 procedure
21. By 10 April 2018, had a Complaint been made against Mr Moussa?
22. If not, was the Moussa Expulsion invalid and of no effect?
23. Was the Moussa Expulsion invalid and of no effect because:
(a) by 10 April 2018, the Management Committee had not received a Complaint about Mr Moussa?
(b) by 10 April 2018, the Management Committee had not dealt with a Complaint about Mr Moussa?
(c) by 10 April 2018, the Management Committee had not dealt with a Complaint about Mr Moussa in accordance with the current Policy and Procedures Manual?
Alleged Breach of Fairness Term
24. Was the Mr Moussa Expulsion in breach of the Fairness Term because Mr Moussa was not afforded procedural fairness for any one or more of the specific reasons particularised at (i) to (x) of paragraph 182 of the FASOC?
25. If so, was the Moussa Expulsion invalid and of no effect?
Alleged Breach of Expulsion Term
26. By 10 April 2018, had Mr Moussa persistently and wilfully acted in a manner prejudicial to the interests of ANSC by doing any of the things of which he was accused by the 29 March 2018 letter from Sherif Desoukey, Abdalla Salam and Inaam Tabbaa (KM Letter)?
27. If the answer to question 26 is "no", was:
(a) the Moussa Expulsion in breach of the Expulsion Term?
(b) invalid and of no effect?
28. If the answer to question 26 is "yes", did ANSC:
(a) condone or acquiesce in Mr Moussa's conduct; and/or
(b) waive any right to expel Mr Moussa; and/or
(c) elect to affirm and not to terminate, the contract between itself and Mr Moussa,
by reason of the matters particularised at paragraph 184B of the Further Amended Statement of Claim?
29. If the answer to question 28 is "yes", was the Moussa Expulsion invalid and of no effect?
Test Member Three: Bassam Barake (Ninth Plaintiff)
Decision not made by General Members
30. Was the decision to expel Mr Barake from ANSC on 13 April 2018 (Barake Expulsion) invalid and of no effect because:
(a) it was not made by the General Members of the ANSC at a General Meeting?
(b) it was not made by the Management Committee of the ANSC?
Estoppel defence
31. If the matters pleaded at paragraphs 12AC-12AG of the Further Amended Defence are established, is Mr Barake estopped from denying that the Interim Caretaker Committee was empowered to expel him from the ANSC?
Clause 10(d) of the Constitution
32. By reason of Mr Barake not being given the opportunity to make representations orally at any meeting in which his General Membership was under consideration (which is admitted), was the Barake Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
33. Was Mr Barake not given the opportunity to make representations in writing to any meeting in which his General Membership was under consideration?
34. If not, was the Barake Expulsion:
(a) not in compliance with clause 10(d) of the Constitution?
(b) invalid and of no effect?
Clause 22 procedure
35. By 13 April 2018, had a Complaint been made against Mr Barake?
36. If not, was the Barake Expulsion invalid and of no effect?
37. Was the Barake Expulsion invalid and of no effect because:
(a) by 13 April 2018, the Management Committee had not received a Complaint about Mr Barake?
(b) by 13 April 2018, the Management Committee had not dealt with a Complaint about Mr Barake?
(c) by 13 April 2018, the Management Committee had not dealt with a Complaint about Mr Barake in accordance with the current Policy and Procedures Manual?
Alleged Breach of Fairness Term
38. Was the Barake Expulsion in breach of the Fairness Term because Mr Barake was not afforded procedural fairness for any one or more of the specific reasons particularised at (i) to (x) of paragraph 194 of the FASOC?
39. If so, was the Barake Expulsion invalid and of no effect?
Alleged Breach of Expulsion Term
40. By 13 April 2018, had Mr Barake persistently and wilfully acted in a manner prejudicial to the interests of ANSC by doing any of the things of which he was accused by the 5 April 2018 letter from Sherif Desoukey, Abdalla Salam and Inaam Tabbaa (BB Letter)?
41. If the answer to question 40 is "no", was:
(a) the Barake Expulsion in breach of the Expulsion Term?
(b) invalid and of no effect?
42. If the answer to question 40 is "yes", did ANSC:
(a) condone or acquiesce in Mr Barake's conduct; and/or
(b) waive any right to expel Mr Barake; and/or
(c) elect to affirm and not to terminate, the contract between itself and Mr Barake,
by reason of the matters particularised at paragraph 184B of the Further Amended Statement of Claim?
43. If the answer to question 42 is "yes", was the Barake Expulsion invalid and of no effect?
ANSC's Specific Defences
No practical injustice defence
44. Does the "practical injustice" principle the Defendant seeks to invoke by paragraph 335 of its Further Amended Defence apply to proceedings for relief of the kind sought by the Plaintiffs?
45. If so, does the Defendant have the onus of establishing the allegations at paragraph 335 of the Further Amended Defence?
46. If not, does each Test Plaintiff have the onus of establishing that any failure to afford them procedural fairness pursuant to the Fairness Term gave rise to "practical injustice" if the allegations pleaded at paragraph 335 of the Further Amended Defence are proven?
47. Is the defence of no practical injustice pleaded at paragraph 335 of the Further Amended Defence made out?
Discretionary defences
48. Should the Defendant be permitted to argue that relief ought to be refused to any of the Test Member Plaintiffs on grounds that to grant such relief;
(a) would be of no utility; or
(b) that it would give rise to further disputes,
in circumstances where these discretionary defences are not pleaded?
49. If so, are either of those defences made out?"
I will deal with the issues identified, but not in the order found in the Issues for Determination by the Court.
Since there was no PPM in place the Management Committee had no ability to deal with expulsions by virtue of cl 22 unless and until ANSCI had considered and adopted such a document and that document provided for expulsion by the Management Committee.
ANSCI contends that the ICC was entitled to expel members without any requirement to meet the terms of the Constitution (that is other than in respect of the Expulsion Term and the Fairness Term). Its fall-back position is that the ICC had the powers of the Management Committee.
Clause 33 undoubtedly permits the Board of Life Members of ANSCI to dissolve the Management Committee and appoint an ICC, but neither cl 33 nor any other clause in the Constitution specifies what power the ICC is to have or even what function it is permitted to perform. The words "interim" and "care-taker" imply a short term appointment and one interpretation is that it was intended to enable critical decisions relating to ANSCI's financial position, leases and the like for a period until a new Management Committee could be established, but did not confer any power to expel.
Mr Stewart contended that the ICC must be taken to have the widest powers in respect of all of ANSCI's business including its ability to expel members for breach of the rules of ANSCI. He developed this argument around a number of steps:
1. that the AI Act required ANSCI to have a governing body;
2. the Constitution of ANSCI permitted the appointment of an ICC;
3. the ICC must be taken to have all necessary powers and would be in breach of the AI Act since if it did not, ANSCI had no committee to manage its affairs;
4. the Constitution by cl 23.0(b) provides that the Management Committee may exercise all functions "as may be exercised by [ANSCI]", unless the rules require the function to be performed by the Board of Life Members or a General Meeting of the General Members of the Club;
5. making reference to the objective theory of construction of a contract - i.e. what would a reasonable person have understood the terms to mean: see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51]; and
6. drawing attention to the fact that cl 29.1 expressly empowers ANSCI by resolution in General Meetings to remove any member of the Management Committee (except the Life Member Delegate), but no power is expressly conferred on a General Meeting to expel a General Member.
The relevant section is s 28 of the AI Act, which provides:
"28 Committee to be established
(1) An association must establish a committee to manage its affairs.
Note -
An association's registration is liable to be cancelled if it does not comply with this subsection.
(2) The committee must include 3 or more members, each of whom is aged 18 years or more and at least 3 of whom are ordinarily resident in Australia.
Note -
An association's registration is liable to be cancelled if its committee does not comply with this subsection.
(3) The committee may exercise such of the association's powers as are not required by this Act or its constitution to be exercised by the association in general meeting.
(4) A committee member's acts are valid despite any defect in his or her appointment.
(5) Within 14 days after vacating office, a former committee member of an association must ensure that all documents in his or her possession that belong to the association are delivered to the public officer for delivery to his or her successor.
Maximum penalty - 1 penalty unit."
It will be observed that s 28 does require there to be an established a committee to manage an unincorporated association's affairs and the committee has to have at least three members 18 years of age and at least three of whom are resident in Australia. The ICC met those requirements.
Section 28(3) of the AI Act provides that the committee "may exercise such of the association's powers as are not required by [the AI Act] or its Constitution to be exercised by the association in general meeting".
Section 28 of the AI Act does not deal with removal of the Management Committee, and it does not provide that the Management Committee must exercise all of ANSCI's powers, so it is at least open to the Plaintiffs to assert that the legislation does not bestow on the ICC powers that are not connected with the everyday operation of ANSCI. Not only that, the show cause letters were not sent in the name of the ICC, but rather in the name of the "Interim Management Committee", which is not recognised by the Constitution of ANSCI.
Whilst the contrary is arguable, I will proceed on the basis that the ICC, when appointed, had all the powers of the Management Committee. If the Management Committee has no power to expel a member because the power of expulsion (if it is to be inferred) must be exercised in accordance with a document which has not been created and adopted by ANSCI then nor does the ICC. I do not accept that the AI Act empowers the ICC to act beyond the powers given to the Management Committee and outside the requirements of the Constitution. If, as the DCS seem to suggest, the ICC is not to be taken as standing in place of the Management Committee (and hence having only such powers as the Management Committee has), then it is quite unclear what powers the ICC has and there is no reason to infer that it does have the power to expel members since the AI Act does not confer that power upon it. The implied Expulsion Term arises as an implied term of the Constitution, not outside of the Constitution. The fact that no express power to expel by means of a General Meeting is found in the Constitution is relevant as is the fact that a power is expressly given to remove a member of the Management Committee, but it does not require the conclusion that the Management Committee must have the power to remove a member and even less so where there is no PPM.
No meeting of General Members was convened nor is it clear that a meeting of the ICC was convened, since the letters sent advising of expulsion do not refer to such a meeting and assert that "the Club" has decided to expel each of the Plaintiffs and that they would cease to be a General Member with immediate effect: see CB 509-511. Whether the matter is viewed from the perspective of cl 22 or from that of cl 10.0(d), the requirements of the Constitution for expulsion could not be, or alternatively were not, followed. The expulsions were, therefore, ultra vires the Constitution of ANSCI.
The DCS contains, in support of the argument that there ought be inferred no power in a General Meeting to expel Members, assertions that Life Members could not vote at a General Meeting and that the member facing expulsion could vote at a General Meeting. The first proposition is incorrect - cl 47.1 of the Constitution gives Life Members the right to vote at a General Meeting of ANSCI. The second proposition is correct, but the Constitution does not preclude the General Member from so doing and expressly confers on the member a right to make submissions. I do not think that this creates an anomaly - candidates are permitted to vote for themselves in an election, and the member facing expulsion has only one vote.
The DCS assert that the purpose and objects of ANSCI are plainly set out in cl 4 of the Constitution, and that "There is no constructional choice in this matter": at paragraph 1.44-145 of the DCS.
At paragraph 2.18 the DCS contend that cl 22 of the Constitution uses the word "may" and hence that complaint need not be made to the Management Committee.
Whilst it is clear that the reason why that is advanced by ANSCI is to avoid the conclusion that a complaint to the ICC (rather than one to the Management Committee) is not a complaint which can be acted upon, it does raise the question of why a complaint cannot be made to a General Meeting of ANSCI.
Once it is clear that the Management Committee cannot exercise a power to expel because it cannot be inferred that there is a power to expel and/or because it cannot follow a non-existent procedure there remains the question of whether ANSCI in General Meeting can exercise the power to expel. Given the existence of the implied term and cl 10.0(d), I think it is appropriate to view ANSCI as having the power to expel a member by holding an AGM or Special General Meeting at which, in accordance with cl 10.0(d), the member facing potential expulsion can present written or oral material to the meeting "in which their General Membership" was under consideration.
I am not persuaded, therefore, that ANSCI could not deal with a proposed expulsion of a General Member at a Special Meeting of General Members or an AGM.
There is a further point arising out of cl 10.0(d) of the Constitution, which is distinct from the power to expel point. The Constitution required the General Members to be given the opportunity to either provide written material to or speak at any meeting at which his or her membership was under consideration. This meant that the General Member had to be given notice of the meeting at which his or her membership was under consideration and the opportunity to present his or her defence of the threatened expulsion. No notice was given to the Plaintiffs of the meeting (even one convened by the ICC rather than a General Meeting) at which their membership was to be considered. I do not think it was open to the Management Committee (or the ICC) to determine that no oral submissions could be made by the General Member against whom a complaint had been made.
This point applies to all three Plaintiffs and hence is a further ground that precluded expulsion by the ICC.
It follows from what I have said above that Mr Kabbara, Mr Barake, and Mr Moussa were not validly expelled by ANSCI.
Nothing was said by the Plaintiffs to the ICC which indicated that the Plaintiffs were proceeding on the basis of a mutual assumption in relation to the ICC's power to expel. It is true that the Plaintiffs did not within the seven days referred to in the show cause letters challenge the authority of the Interim Management Committee or the ICC to deal with the complaint or to expel them, but that does not constitute a basis for an estoppel. Mr Kabbara and Mr Moussa were entitled to expect a response to their letters before any decision was made by the ICC. I am unable to accept that their failure within seven days to challenge the authority of the ICC in a contentious environment permits an inference to be drawn of any mutual assumption founded upon "the consensual basis of the parties' relationship" (see Moratic (supra) at [33] per Brereton J). Nor does Mr Barake's silence supply such a basis since, in circumstances where the ICC was purporting to exercise a power which it did not have to investigate and potentially expel him, there could be nothing to impose on Mr Barake's conscience an obligation to speak: see Moratic (supra) at [15].
Mr Furlan also contends that no detriment has been established. ANSCI, he points out, is not precluded from seeking to progress a complaints process otherwise available to it in accordance with the Constitution - the Plaintiffs' case is that the power has not been exercised at all.
ANSCI also relies on the fact that the Plaintiffs did not raise the absence of power to expel as a ground of challenge until after the separate hearing and asserts that this constituted a detriment to ANSCI. The argument seems to combine with the alleged assumption at the time of expulsion, an assertion of a detriment arising from the continuation of the proceedings. As Mr Furlan pointed out, ANSCI consented to the amendment by the Plaintiffs of their case: see the orders made on 14 May 2020. Given that the Plaintiffs advanced in these proceedings a number of other grounds as a basis to challenge their expulsion, none of which ANSCI accepted, it does not seem that any detriment arose to ANSCI as a result of the Plaintiffs failing to plead an additional ground of breach until a late stage and even more obviously when no objection was taken by ANSCI to the Plaintiffs' proposed amendment. It was open to ANSCI (at that point) to accept that the ICC did not have power to expel the Plaintiffs and bring these proceedings to an end (with possible cost consequences for the Plaintiffs for the late pleading of the issue) but ANSCI did not do so.
In my view the estoppel defence is not made out.
I should note that waiver or acquiescence is also asserted in the DCS at paragraphs 7.25-7.26, but this was not pleaded and not found in the list of Issues for Determination by the Court, and I will therefore not address either of these matters.
Whilst not strictly necessary to do so I should deal with the other aspects of the case brought by the Plaintiffs.
Whatever Mr Barake did with the documents was short lived and not persistent and I am not persuaded that Mr Barake had accepted the documents from Mr Pickering without justification or kept them without justification in the boot of his car. There is no evidence of him having behaved in an aggressive and hostile manner. He is not shown to have breached any rule or by his actions done anything that would support his expulsion. The Expulsion Term has, therefore, been breached.
Unlike Mr Moussa (and Mr Kabbara) Mr Barake did not respond to the show cause letter. The failure to respond to the show cause letter could support a claim that the Fairness Term was not breached because he chose not to put forward his version of events. However, I will deal later with the other aspects of procedural unfairness in relation to Mr Kabbara and Mr Moussa and also affecting Mr Barake.
The absence of any proper basis for complaints made against Mr Moussa and Mr Barake gives some colour to a theme of the Plaintiffs, advanced by Mr Furlan in cross examination of Ms Tabbaa, that the real reason for the expulsion of all nineteen Plaintiffs is that many of them were defendants in the earlier proceedings and their expulsion brought the need for the earlier proceedings to an end, and provided ANSCI with an argument to resist paying the costs in the earlier proceedings of the defendants in those proceedings: see T119.25-120.25. Ms Tabbaa denied that this was so: T120.25. It is unnecessary to form a concluded view on the point since I have already determined that there was no proper basis for the expulsion of Mr Moussa and Mr Barake.
By establishing the PUFC Mr Kabbara has, with others, created a competing sports organisation that was intended to draw away players from ANSCI and has been successful in doing so. In my view the evidence discloses a solid case that Mr Kabbara has acted contrary to the interests of ANSCI and has done so in a persistent and deliberate way.
I am not persuaded therefore that in respect of Mr Kabbara that there was a breach of the Expulsion Term.
The material to which I have referred in [68] above reveals:
1. The only evidence of what matters led the Committee to decide to expel the three Plaintiffs are the internally inconsistent matters advanced by Ms Tabbaa, on the one hand, and Mr Desoukey, on the other, and the inconsistencies between what is found in the show cause letters and the matters upon which Ms Tabbaa and Mr Desoukey were proceeding.
2. A failure to put to each of the Plaintiffs each of the matters that the ICC or that Ms Tabbaa and Mr Desoukey felt were matters warranting their expulsion if not the subject of a satisfactory response.
3. A lack of consideration by the ICC to consider "in an honest and unbiased way and unaffected by any ulterior, or extraneous motives" the question of whether the members had conducted themselves in such a way as to warrant their expulsions.
4. A failure comply with the requirement that those who were, in effect, acting as prosecutors, i.e. Ms Tabbaa (at the least), not take part in the deliberations of the ICC.
5. A failure in the case of Mr Barake to ensure that the principal witness against Mr Barake (Ms Tabbaa) was not a member of the tribunal considering his expulsion.
The failures I have referred to in [69(2)] to [69(5)] above are failures inconsistent with the principles set out in Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 per Hamilton J at [8] (and see McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 at [74]): see [39] of the 2020 Reasons. The DCS assert that the Plaintiffs have failed to plead the content of the requirements of procedural fairness and that they seek to "reverse-engineer" its content by reference to the pleaded breaches. The Plaintiffs must, says the DCS, show that procedural fairness "required these things to be done": see DCS at paragraph 7.3. That submission ignores the effect of the authorities to which I have referred to in the 2020 Reasons at [39]-[40], which establish the minimum content of procedural fairness.
ANSCI relies on Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 which relies on Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161 which suggests that apprehended bias is not sufficient in the case of private or domestic tribunals. In my view the Plaintiffs have established actual bias in the ICC's process. However, even if the matter is seen as one of apprehended bias rather than actual bias whilst it is true that the apprehended bias rule will not apply to domestic tribunals with the rigour applied to judicial or quasi-judicial proceedings, the rule does apply to such tribunals: see Dickason v Edwards (1910) 10 CLR 243, Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 and Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 at [55]-[70] per Meagher JA with whom Ward and Leeming JJA concurred and the cases referred to in [70] above.
In my view, each of the Plaintiffs were denied procedural fairness by this process quite apart from the issue of whether, by reason of cl 10.0(d), they had the right to attend the meeting at which their expulsion was to be considered and to make submissions if they so wished.
What I have said in [77] above applies to all the Plaintiffs. Further, in the case of Mr Moussa and Mr Barake I have found that the Expulsion Term was breached so there can be no contention that the outcome would have been different had they been accorded procedural fairness.
I accept Mr Furlan's contention that if the "no practical injustice" defence can be advanced it is ANSCI which bears the onus of establishing it, and ANSCI has failed to make out that defence.
Mr Kabbara had given evidence that he wanted to continue to be a member of ANSCI (see paragraph 65 of his affidavit at CB 114-115) and had been connected with the Club since he was a boy. In fact Mr Kabbara only joined ANSCI as a General Member in 2014. In cross examination he was asked (at T65.44-48):
"Q. Now, you gave some evidence about the reasons why you wanted to be a member of the club ANSC. Could it be, in fact, Mr Kabbara, that the real reason that you want to come back to the club is because it's got very valuable facilities in Punchbowl and that Sheikh Shady is interested in having the use of those facilities?
A. No."
Whilst it seems likely that the Plaintiffs (other than Mr Moussa) are now connected with either PUFC or the UMA and Sheikh Shady and that this will have, potentially, significant consequences for ANSCI, the present case is not concerned with the outcome for ANSCI if the Plaintiffs are found to have been wrongly expelled and remain able to vote on all matters concerning ANSCI and its future. The Plaintiffs are members of the Club and each has a right to be and continue as a member in accordance with the contract that was formed when they joined ANSCI and renewed when they paid their membership fees. Their motives for wanting to maintain their right to be members and for whom or what resolutions they may in the future vote are not relevant.
Declaratory relief has a real utility since it confirms that their expulsion was invalid and permits them to remain members and exercise their rights as such. The declarations will quell the dispute concerning the Plaintiffs present membership of ANSCI and therefore have utility.