Kabir Ahmed & Ors v Ayubur Rahman Chowdhury & Ors

Supreme Court of NSW|2011-08-09|Before: Slattery J

Judgment 1The defendants contend that these proceedings were settled on 19 June 2011. The plaintiffs dispute this. Civil Procedure Act 2005, s 73 provides a convenient procedure to decide this question by motion within the proceedings. 2The parties are members of an incorporated association, The Bangladesh Islamic Centre of N.S.W Inc ("the Association"). They came to the Equity Duty List on 1 August 2011, seeking a hearing and decision on this issue by 10 August 2011, so they could hold an annual general meeting by 31 August 2011 in conformity with the requirements of the Association's constitution and the Associations Incorporation Act , 2009. To accommodate this timetable the matter was heard in the duty list on Friday, 5 and Tuesday, 9 August 2011. On 10 August 2011 I made orders dismissing the defendants' motion seeking to give effect to the alleged compromise. This judgment sets out my reasons for those orders. 3Mr Condon of counsel represented the defendants, the applicants on the motion. Mr Mitry, solicitor represented the plaintiffs, the respondents on the motion.

Jurisdiction 4Before the enactment of Civil Procedure Act, s 73 there were different judicial views as to whether an alleged settlement of proceedings could be enforced by motion in the proceedings or whether a separate action needed to be commenced: Phillips v Walsh (1990) 20 NSWLR 206 at 210 and Roberts v Gippsland Agriculture & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 at 557-562-7 and Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510. Now Civil Procedure Act , s 73 resolves these different views and makes clear that the Court has jurisdiction to determine any dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised: Civil Procedure Act , s 73(1)(a). Civil Procedure Act , s 73 probably preserves a discretion to require the enforcement of settlement claims to be brought in separate proceedings. Neither party advanced that procedure here. 5Although three of the defendants/applicants' witnesses and four of the plaintiffs/respondents' witnesses were cross-examined, the case was heard and determined in less than the equivalent of one hearing day. To secure an urgent hearing in the duty list both parties agreed to limit their cross-examination of the other side's witnesses to no more than twenty minutes each. This procedure worked well. 6The determination of this motion gives the Court insight into the matters in issue in the principal proceedings. Although the parties failed to resolve their differences, as I find, they advanced sufficiently far towards an overall compromise that in my view, either an agreed or Court directed mediation is now desirable. At the end of this judgment, I will deal with the question of whether Civil Procedure Act , s 26 powers to order mediation should now be utilised.

The Dispute within the Association 7Both the plaintiffs and the defendants lay claim to the governance of the the Association through its Executive Council. By their Amended Summons in the principal proceedings the four plaintiffs seek a declaration that the purported removal of the first plaintiff, Mr Kabir Ahmed as secretary general of the Association is invalid. The plaintiffs also seek declaratory relief that the purported removal of the third plaintiff Mr Iftikhar Uddin and two other persons, Mr Harunur Rachid and Mr Mohammed Yousuf as committee members was also invalid. Mr Ahmed seeks reinstatement as secretary general. 8The other plaintiffs, the second plaintiff, Mr Saiful Islam Chowdhury (Mr. S. Chowdhury) and the fourth plaintiff, Mr Fazlur Rahman are members of the Association. They also seek reinstatement as committee members. 9The four defendants are all presently acting as members of the Executive Council of the Association. Of these only the first defendant, Professor Ayubur Rahman Chowdhury gave evidence in the proceedings. The other defendants, the second defendant, Mr Moshiur Rahman Redoy Sheikh, the third defendant, Mr Harun Rachid Azad and the fourth defendant, Mr Motiur Rahman (also known as Mr Mohammed Abdul Hakim) did not. The plaintiffs' Amended Summons seeks the removal of these four defendants, from "office purportedly held by them as members of the Executive Council". 10As not uncommonly happens in incorporated Associations, members' differences over issues of policy and the future direction of the Association have generated procedural disputes. The plaintiffs, Mr Ahmed, Mr Chowdhury, Mr Uddin and Mr Rahman belong to a different faction within the Association from the defendants, Professor Chowdhury, Mr Sheikh, Mr Azad and Mr Hakim. 11In the principal proceedings each side accuses the other of misconduct or maladministration in the affairs of the Association. On each side there are principal protagonists. On one side is Mr Ahmed, the general secretary of the Association and the first plaintiff. On the other side is Professor Chowdhury, the first defendant and the President of the Association. 12The allegations on both sides are serious and strongly disputed. Set out here is a by no means comprehensive statement of the differences between the parties, which have become especially intense this year. The President, Professor Chowdhury, accuses the general secretary, Mr Ahmed of: misappropriating the Association's subscription funds; of "terrible insubordination with the President"; and, of forfeiting his position as general secretary by his non attendance at Executive Council Meetings of the Association. 13The general secretary responds with equally grave allegations against the President. Mr Ahmed says: that Professor Chowdhury has assaulted him; that he has not misappropriated the Association's funds; and, that there is a good excuse for his non attendance at meetings - he was not told about them. Behind these conflicting allegations appear to be deeply held but differing convictions about the proper management of the Sefton Mosque, which the Association owns. The Association is a large one, having some 800 members and its affairs are of considerable importance to the Bangladeshi community in Australia. 14Other issues between the parties are: the alleged removal of the second, third and fourth plaintiffs, Mr Chowdhury, Mr Uddin and Mr Rahman from the Association's Executive Council; the authority of the President to lodge an application for a work visa for a new imam for the Sefton Mosque; the sale of the Sefton Mosque; and the purported removal of the President from office. Mr S Chowdhury, the second plaintiff and Vice President of the Association, alleges in correspondence on 15 June 2011 that at a general meeting of the members of the Association on 12 June 2011 the members overwhelmingly voted to remove Professor Chowdhury from the position of President with immediate effect. There are other allegations and disputes that are not included in this summary. Each side stoutly denies the others' allegations. 15Professor Chowdhury has aptly described the situation that has arisen as "the current crisis in the Bangladesh Islamic Centre". The point has now been reached where each side denies the legitimacy and fitness of the other to continue in any office of government in the affairs of the Association. The plaintiffs commenced these proceedings by Summons on 26 May 2011. 16Despite their bitter differences, with commendable self insight in mid June 2011 both parties appointed a senior member of the Bangladeshi Islamic Community in Australia, Dr Abdul Wali ul Islam, to mediate their various disputes. Dr Islam chaired a meeting of the two sides on 19 June at the Sefton Mosque. Unfortunately in my view, despite Dr Islam's commendable and professional efforts on this occasion, the parties failed to reach a binding agreement to settle these proceedings, although what might appear to be a practical working consensus seemed to have been reached on paper about their wider differences. 17Professor Chowdhury, the President, and the other defendants, allege that at the meeting on 19 June 2011 both sides agreed to withdraw the proceedings and that each party would bear its own legal costs of the proceedings so far. In these reasons I conclude that the defendants, who allege and who therefore bear the onus of proof of the settlement agreement have not established to the Court's satisfaction that that agreement was made.

The Settlement Meeting on 19 June 2011 18The issuing of the Summons on 26 May 2011 seems to have confronted the parties with the public nature of their dispute. They agreed to meet together before the first return date on 14 June 2011. At that meeting on 12 June 2011, they appointed Dr Islam as mediator and arranged a wider settlement conference for 19 June 2011. 19Mr Ahmed says, and I accept, that Dr Islam invited him to the meeting on 19 June 2011 which Dr Islam described to him as "an informal meeting for members of the community to resolve their differences". Mr Ahmed says, and I accept, that he understood the purpose of the meeting was to discuss a range of issues including the reunification of the two factions within the Executive Council of the Association as well as the finding of a peaceful solution to the dispute which had led to the litigation.

Preparation - 12 to 14 June 2011 20Dr Islam went to considerable lengths to constitute the 19 June meeting in a way that was designed to promote a settlement. He began working with both sides from about 12 June when he gained authorisation from each to approach the other to convene what was described in conversations as a "peace meeting" to resolve their dispute. 21Dr Islam formally proposed in email correspondence to Professor Chowdhury on 14 June 2011 that the two sides should gather at a "consultation meeting to reach an amicable solution". He proposed that each of Professor Chowdhury and Mr Ahmed could be accompanied by two other community members who "should have a positive attitude and should be supportive for an amicable solution". He reserved to himself the liberty to invite three other members from the community to be present in the negotiation to make the process as fair as possible. I infer Dr Islam had similar email communication with Mr Ahmed.

The Participants 22As it turned out the meeting was not organised quite along the lines that Dr Islam initially had in mind. I accept Professor Chowdhury's evidence that there were actually fourteen prominent members of the Australian Bangladeshi community present at the meeting. This is consistent with the signed minutes. I also accept that Mr Ahmed was the leader of his group and Professor Chowdhury the leader of his group during the meeting. 23But not all the parties to the litigation were present, despite the numbers there. Only Mr Ahmed (the first plaintiff) and Mr S Chowdhury (the second plaintiff) were present on the plaintiff's side throughout the meeting. Mr Uddin (the third plaintiff) left before the end of the meeting and Mr Rahman (the fourth plaintiff) was not there at all. 24On the defendant's side there were similar absences. Professor Chowdhury (the first defendant) was present throughout the meeting as was Mr Rahman (the fourth defendant). But Mr Sheikh (the second defendant) and Mr Azad (third defendant) were not present at any time. 25Both sides were content with Dr Islam being the chairperson of the meeting. Professor Chowdhury actually regarded him as more aligned with the plaintiffs' faction but Dr Islam denied this in an email after the meeting. Dr Islam seems to me to have been meticulously fair to both sides in his conduct of these negotiations. I do not accept any inference against him of partisanship. Indeed he declined to give evidnce for either side in the proceedings. Dr Islam was assisted at the meeting by a minute taker, Mr Dihider Zafir Ahamed. No issue was taken that Mr Ahamed's minutes were not a genuine attempt to record what had happened at the meeting. Neither Dr Islam or Mr Ahamed gave evidence in the proceedings. But Mr Ahamed's handwritten minutes and Dr Islam's typed version of them were both in evidence. 26But a clear understanding of what happened at the meeting is clouded by several factors: not all parties to the litigation were present throughout the meeting; the authority of those that were present to negotiate a legally binding agreement on behalf of those that were absent was doubtful; the minutes do not, in my view, indicate a clear result in relation to the litigation issues; and, more than just the litigation was discussed and needed to be resolved. The parties' competing versions of the 19 June meeting exposed these issues.

The Competing Versions 27Although a number of witnesses gave evidence on each side, the competing versions were mainly advanced through the chief disputants, on the one side the first plaintiff, and general secretary, Mr Ahmed and on the other side, the first defendant and President, Professor Chowdhury.

Professor Chowdhury's Version 28Professor Chowdhury's version of what happened was that a barrister, Mr Mohammed Sirajul Haque questioned both himself and Mr Ahmed at the beginning of the meeting in the following terms:- "So that we are not wasting our time, I wish to ask if the President and General Secretary will each confirm that they each have authority to represent their side, and that each of them will accept the decision agreed to at this meeting." 29Mr Haque practises at the Tasmanian Bar and in my view did ask cautious questions to try and expose any issues about the representation of the absent parties at the beginning of the meeting. In reply Professor Chowdhury says that he said:- "We want harmony in our Bangladeshi community. We are here to settle our dispute out of Court and of course we will accept any decision agreed to at this meeting. We are very grateful to all of you for making the time to assist us in resolving our dispute out of Court." 30I accept that Professor Chowdhury did say this, as he says. Professor Chowdhury says that Mr Ahmed also replied in the affirmative to Mr Haque's question saying:- "We too want harmony in the Bangladeshi community. We will also accept any decision agreed to at this meeting." 31Mr Haque supports Professor Chowdhury and says he asked two questions at the opening of the meeting: one about the authority of the respective leaders, "will the President and the General Secretary confirm that they each represent their side"; and, the other about the acceptance of the result that "they will abide by the decision of the meeting". Mr Ahmed was prepared to accept in cross-examination that Mr Haque asked the first question. But Mr Ahmed was quite firm that he did not agree with the second question. I do not fully accept Mr Ahmed's denial. In my view Dr Islam's pressure for co-operation was working well enough at that point that he felt he should be reasonable. That he said something co-operative at this point is also to be inferred from Dr Islam's minutes, which say at the beginning of the meeting "It was confirmed by Mr Kabir Ahmed and Dr Ayubur R. Chowdhury that they will stick to the decisions of the meeting". In my view Mr Ahmed gave a positive and diplomatic answer to the second question but not to the point of committing himself to be legally bound. 32Given the dynamics of this meeting it is quite improbable that Mr Ahmed would have given blanket agreement to the outcome of the meeting from the beginning. Mr Ahmed had no legal adviser like Mr Haque with him. In his oral evidence he seemed suspicious of the direction of the voting influence of the other allegedly non-factional community members at the meeting. Indeed his impression of these other people which I accept as his genuine impression (whether or not well founded) was that they were in the defendants' camp, or were certainly not his supporters. Mr Ahmed appeared to be quite astute. He did not strike me as so bereft of political nous that he would unconditionally agree in advance to the result of a meeting that he may not be able to control and the resolutions of which may be unacceptable not only in to him but to the many people he led and whose interests he felt he was defending. 33In my view, the issue of representation of absent persons did come up early in the meeting and Mr Ahmed gave a vague diplomatic answer. But the issue of agreeing with the outcome of the meeting came up towards the end of the meeting again. Then Mr Ahmed had a more specific answer which was calculated to protect him from the slight disadvantage that I infer he felt in these negotiations, of not having a lawyer with him.

Mr Ahmed's Version 34Mr Ahmed had a different version of what happened at the meeting. He recalls Dr Islam proposing the reinstatement of the original Executive Committee before the dispute started and that members of the Association co-opted onto the Executive Committee after the dispute began would be regarded as invalidly appointed. When Dr Islam put this proposal to Mr Ahmed he says, and I accept, that he said back to Dr Islam "I agree if the constitution will allow it". Mr Ahmed says, and I accept, that Professor Chowdhury was reluctant also to agree to this proposal. 35Mr Ahmed recalls that Dr Islam then proposed "is it possible that we ask for each [Executive Committee] members from each group to attend the meeting without the full committee attending the meeting?" This seems to have been a proposal that an interim Executive Committee of 8 persons be constituted. This interim structure seems to have been quite well reflected in the minutes of the meeting completed by Dr Islam and nominating an Executive Committee of 8 persons, Professor Chowdhury (President), Mr Ahmed (General Secretary), Mr Sheikh (Treasurer), Mr S Islam, Mr H. Azad, Mr D. Chowdhury, Mr K. Talukder, Mr F. Rahman. 36Mr Ahmed says that he disagreed with this proposal. He had doubts about whether the Constitution would authorise it. I accept his evidence that he and Dr Islam spoke on this subject to the following effect:- Mr Ahmed: "This is not constitutionally and legally valid because without informing all of the Committee members, a meeting is constitutionally invalid." Dr Islam: "Are you agreeing to this?" Mr Ahmed: "No, it is constitutionally invalid". Dr Islam: "Do you agree to this?" Mr Ahmed: "I will have to ask my lawyer first before I agree". 37Mr Ahmed gave assent but qualified his assent in a way that meant that there was no final and binding agreement to this issue. In my view, he also qualified in a similar way his assent to the next issue, the idea that the plaintiffs withdraw the present proceedings and for the parties to each bear their own costs. I accept Mr Ahmed's evidence in cross-examination that throughout the latter part of the meeting he said "anything we discuss here, I cannot agree until I take my legal advice". What I do not accept is that he said this firmly at the beginning of the meeting. 38Although it does not appear in his affidavit I accept the evidence that emerged from Mr. S. Chowdhury in cross-examination that he heard Mr Ahmed say that the arrangement had to be approved by his lawyer to ensure that it was in conformity with the constitution. Mr. S. Chowdhury's participation in the signing ceremony at the end is not inconsistent with this; I accept his account that Mr Ahmed qualified his acceptance of the conclusion of the meeting.

The Minutes of Meeting 39Mr Ahmed's handwritten minutes from the meeting were in two parts. There was an attendance sheet, which all fourteen attendees appear to have signed to confirm their presence. The other document was a handwritten record of what was discussed and agreed which was signed by all persons present. This was later typed up at Dr Islam's direction into a more formal set of minutes. 40Professor Chowdhury relied upon Dr Islam's typed minutes of meeting and said, as did his witnesses, that they correctly recorded what happened at the meeting on the issue of withdrawing the proceedings. Those minutes show there were three points of discussion for the meeting: (1) how to unite the two factions within the committee of the Association; (2) exploring the possibility of withdrawal of the Court case; and, (3) giving terms of reference to the current committee to conduct the affairs of the Association until the election of a new committee at the next Annual General Meeting. 41On the first and last of these three discussion points (uniting the committee and moving towards holding a new Annual General Meeting), what the parties discussed and decided is less controversial. Although the parties seem subsequently to have adhered their decisions on these matters no more than on the issue of withdrawal of the Summons. The meeting appeared to agree upon the existing committee going into a kind of "caretaker" period prior to the next Annual General Meeting and that they would take all appropriate actions to run the election smoothly and with Mr Ahmed being reinstated in the interim as general secretary. This part of the minutes provided:- "Agendum 1; Uniting the committee After considerable discussion it was decided that both the fractions of the committee will be united. Mr Kabir Ahmed and Dr Ayubur R.Chowdhury informed the meeting that they agree to this decision. Therefore it became imperative to both of them that they will work together until the next committee of the BIC is elected. Because of the controversy regarding the termination of some members of the committee and subsequent co-opt of new members (which one was valid and which one was not); the meeting requested that the following members would form the quorum of a valid meeting of the executive committee of the BIC until the next election of the committee.

Dr Ayubur R.Chowdhury President
Mid Kabir Ahmed General Secretary
Moshiur Rahman Ridoy Sheikh Treasurer
Mr Saiful Islam
Mr Harun Rashid Azad
Mr Didarul Alam Chowdhury
Mr Khasrul Talukder
Mr Fazlur Rahman As a term of reference it was requested that because only less than two months to go for this committee:
The committee will not undertake any major activity until the next committee is elected.
Will fully commit to conduct the AGM 2011 (preferably by the end of July 2011).
Will take appropriate actions to run the election smoothly so that suitable community representatives can take over the responsibility of running the BIC.
No member of the committee will give any public comments and will not issue any letter/correspondences to the members of the public except in relation to AGM.
Mr Kabir Ahmed as the Secretary will be reinstated as a bank signatory to operate the bank account of the BIC. Appropriate actions will be taken by the president in this matter. Decision: The above decisions were agreed and undertaken unanimously. Both the president and secretary agreed. The meeting further requested the President and the Secretary to stick to the above decisions." 42In relation to the settlement of the Court proceedings the minutes did not quite support the definitive agreement for which Professor Chowdhury contended. They said the following:- "2. Court case It was unanimously decided that because the controversies and disputes between the two fractions (see above) based on the above decisions were resolved Mr Kabir Ahmed will take appropriate actions so that the court case could be withdrawn as soon as possible without any adverse implications on either of the parties. So far this case goes all the case related expenses will be met by the parties involved. One party is not responsible for any expenses of the other party. It was agreed by all that everyone should try best to avoid any court case or police case in the future and no money will be spent for any court case or related reasons from the Bangladesh Islamic Centre/mosque fund." A number of the witnesses used the expression "fractions" to describe, what were "factions". The word used seemed to be a blend of "fractious" and "faction" but the meaning is clear. 43Next, the minutes provided for the holding of the Annual General Meeting in the following terms:- "3. AGM The Committee in the first meeting will be fix a date for the coming AGM and serve the notice as soon as possible complying with the requirements of the constitution. The AGM will be held in the Sefton Mosque." The meeting discussed the appointment of an "Election Commissioner" to conduct the election at the Annual General Meeting. 44Finally, the minutes declared above Dr Islam's signature "it was decided that the minutes can be presented to the Court as a legal document if required". 45Whilst aspects of this document understandably led Professor Chowdhury to the view that a binding agreement had been made to settle the proceedings, closer analysis of the minutes assists the conclusion from my assessment of the oral evidence that the parties did not agree to settle the proceedings. 46The form of Dr Islam's minutes gives weight to Mr Ahmed's version in two ways. First under the heading "Court case" the resolution that "Mr Kabir Ahmed will take appropriate actions so that the court case could be withdrawn as soon as possible" is more a statement of intent rather than of immediately binding settlement. 47But the recorded decision under the heading "Court Case" does not seem to be as precise as that identified under "Agendum 1: Uniting the committee", which comes to a clear "Decision". This is consistent in my view with my findings that Mr Ahmed qualified his position towards the end of the meeting, indicating that in substance that he may be prepared to go along with the consensus, provided his legal advice confirmed he should and that the result was consistent with the requirements of the constitution, "I will have to ask my lawyer first before I agree". This qualification did not find its way into the minutes other than through the words "will take appropriate actions". But in my view the qualification was clearly made. 48Second, I accept Mr Ahmed's evidence that he did not notice that Mr Ahamed's handwritten notes that he was signing did not contain his qualification about getting legal advice, before he would accept the agreement as binding. But in my view he made that clear, either to Dr Islam or to Mr Ahamed at the time of signing. That this did not gain great prominence in the attention of the defendants' witnesses is hardly surprising. I infer from Mr Ahmed's and Mr Uddin's evidence that the end of the meeting was quite confusing and people were in a hurry to sign and go home. Many people were signing the document at once. Some were not reading it before signing. People were still adding their opinions to the debate. In my view the written document should be read subject to this qualification that Mr Ahmed expressed at the time he signed it. I accept the evidence of Mr S. Chowdhury that he did not sign the handwritten form of minutes in the belief that they were a binding legal agreement. He seems to have heard Mr Ahmed's qualifications on signing and accepted them.

Subsequent Correspondence with Dr Islam 49Although Dr Islam did not give evidence, without objection email correspondence from him was tendered through Mr Barrack, the solicitor for the defendants. Mr Barrack attempted to get Dr Islam to give evidence but he declined. Dr Islam's answers to question 3 assist in understanding what happened at the meeting on 19 June. "3. The matter settled as noted in the minutes, and the minutes state that 'the minutes can be presented to the court as a legal document if required'. Responses: Yes it is true. However, the intention was not to encourage using the document in continuing with the court case rather to resolve the disputes outside the court. Following that meeting, I contacted both Mr Kabir Ahmed and Dr Ayubur Chowdhury several times and encouraged them to meet with each other and take positive steps towards resolution of the disputes. To my knowledge, unfortunately this never has happened; neither of the parties came forward to meet and discuss or even talk over phone directly. To my understanding, this went against the intention of the whole meeting." 50The first sentence, before the word "Responses" was a record of what Mr Barrack had put to Dr Islam as his instructions. The material that follows is Dr Islam's reply. Dr Islam's answer seems to be consistent with the idea that the document might be used to modify the course of the proceedings as distinct from putting an end to them.

Subsequent Conduct 51Both parties sought to use conduct after 19 June 2011 against the other to assist the competing inferences they sought to draw. The subsequent events included: a directions hearing before the Court on 20 June from which it appears the defendants were absent; a series of other meetings involving the plaintiffs and the defendants attempting to resolve the proceedings; and, assertions in correspondence by Mr Barrack on behalf of the defendants that the proceedings had settled. But I do not find any of this material useful in drawing inferences about whether or not an agreement was made on 19 June, even if it were admissible for that purpose. The Court's focus is what happened on the 19 June 2011.

Binding the Absent Parties 52The defendants' case that all the parties agreed to settle the proceedings must also negotiate the problem of representation of the persons who were not present at the meeting. 53Only the first and second plaintiffs, Mr Ahmed and Mr S.Chowdhury were present throughout the meeting. The third plaintiff, Mr Uddin left an hour and a half into what was about a two hour meeting. The fourth plaintiff, Mr Rahman was not there at all. The second and third defendants Mr Sheikh and Mr Azad were not present. On the defendants' side only Professor Chowdhury and Mr Azad, the third defendant were there. 54There is little evidence that the two plaintiffs who were absent at the end of the meeting, Mr Uddin and Mr Rahman, gave authority to Mr Ahmed to settle the proceedings on their behalf upon terms that the Summons be withdrawn and each party to bear its own costs. Mr Uddin denies participating in any agreement at the meeting. His evidence does not support him giving specific authority to Mr Ahmed to settle the proceedings on his behalf. Nor does it support Mr Ahmed giving any general authority that he would accept what Mr Ahmed decided for him at the meeting after he left. Mr Uddin did not hold out to any of the defendants that Mr Ahmed had authority to settle the proceedings on his behalf. Mr Ahmed was not Mr Uddin's solicitor in the proceedings, clothed with general authority as a professional to compromise the proceedings on his client's behalf: Carruthers v Newen (1903) 1 Ch 812. Mr Rahman's position is much the same. Mr Rahman was not cross-examined and his affidavit is of little weight. But nothing in it or elsewhere in the evidence about him suggests that he either authorised Mr Ahmed to settle the proceedings or held out to the defendants that Mr Ahmed could do so on his behalf at the meeting on the 19 June 2011. 55Mr Condon seeks to deal with this deficiency by contending that Mr Ahmed's answers to Mr Haque's questions at the beginning of the meeting are a sufficient basis for the Court to infer that Mr Ahmed had actual authority to settle the proceedings by confirming "that they each represent their side and that they will abide by the decision of the meeting". 56There are difficulties with this contention. In this meeting discussing as it was legal, political and moral issues of mixed character, the words "represent their side" should not ordinarily be construed as a representation of legal authority, particularly legal authority of a specific kind to settle proceedings. The language used was more apt in my view to import the idea of the political representation of the interests of the persons said to be represented. Even the statement that the parties "will abide by the decision of the meeting", which I find was said as a matter of diplomacy by Mr Ahmed, was not a statement of authority to bind absent persons to an as yet undefined consensus. In any event, as already described, in my view, Mr Ahmed qualified this statement later in the meeting when a clearer consensus emerged. 57The position of the absent defendants is equally problematical. I do not regard Professor Chowdhury's declarations to Dr Islam that he "represented" his faction, including the defendants is anything more in this context than a declaration of his political and moral leadership of his group. The only qualified lawyer present at the meeting on the defendants' side, Mr Haque, did not purport to represent the defendants himself, nor claim to be their agent. 58The position of the absent parties in relation to the proceedings was important. The plaintiffs had engaged Mitry Lawyers to represent them. Undoubtedly costs had been incurred. Just when Barrack Lawyers was engaged was unclear on the evidence but the defendants would probably have incurred some legal costs in the proceedings by 19 June. The proceedings seek important relief in respect of an association which appears to have become temporarily dysfunctional. The evidence is not compelling that the absent plaintiffs in particular were prepared to give up their important rights to relief and to bear their own costs of the proceedings. 59Although for their own reasons the parties wanted to negotiate their differences without lawyers, had they both been legally represented on 19 June it would have been easier for them to deal with issues such as the problem of the absent parties. I conclude that the absent plaintiff and defendants were not bound by any agreement reached on 19 June 2011.

Further Mediation 60These reasons show that the parties failed to settle these proceedings. Perhaps the sheer numbers of people involved in the settlement conference or perhaps the lack of legal experience of the otherwise highly capable mediator meant that the attempts at compromise failed. But the fact that the parties made the efforts that they did and achieved the results that they did gives confidence that this dispute may yet be resolved by agreement without doing further damage within the community that the Association serves. When the matter returns to Court for the making of final orders on the motion and for any argument about costs, I will consider the parties submissions about whether the proceedings should be referred to mediation under Civil Procedure Act, s 26. 61But there may be a faster solution to the parties' differences. The parties still have different views as to who constitutes the Executive Committee and other office holders of the Association. But the parties seem to be agreed that the Association must hold an annual general meeting by 31 August 2011, and their non binding consensus at the 19 June meeting seems to have provided for a form of peaceful co-existence before then. Yet before me the parties were said to be in dispute as to exactly who is authorised to call this annual general meeting. The holding of this meeting and the election of a new committee may assist in resolving some of the differences that now exist between these parties. 62It may be possible for the parties, by agreement, or for the Court, as an adjunct to the grant of final relief to make directions for the calling of the annual general meeting by a neutral person who is not associated with either faction within the association. If that were to require some extension to the date for the holding of the annual general meeting then in the first instance the legislation authorises the Association's public officer to apply to extend the date for the holding of the annual general meeting: Associations Incorporation Act , s 26(3).

Conclusions and Orders 63In the result therefore for the reasons expressed I have found that these proceedings have not been settled and the first and third defendants' motion will be dismissed to the extent that it seeks enforcement of that settlement (Orders 1 and 2). Prayers 3 and 4 of the motion seek relief concerning aspects of the future conduct of the association. Whether or not such relief is still sought may need to be the subject of supplementary submissions. The plaintiffs/respondents have been substantially successful on the Motion. Ordinarily costs would follow the event and I will so order unless one or other party wishes to argue for a different or special costs order. 64Accordingly, the orders that I will make are:-

Dismiss prayers for relief 1 and 2 of the Motion.
Reserve for any necessary further argument the costs of the motion and the claims in prayers for relief 3, 4 and 5 of the Motion.
Direct the parties to contact my Associate to fix a suitable date for any further argument on the motion and directions in the proceedings.

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: 17 August 2011

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