Kabir Ahmed & Ors v Ayubur Rahman Chowdhury & Ors

EX TEMPORE Judgment 1This is my fifth judgment in these proceedings. My previous four judgments fully set out the recent history of this matter: Ahmed & Ors v Chowdhury & Ors [2011] NSWSC 893; Ahmed & Ors v Chowdhury & Ors (No 2) [2011] NSWSC 954; Ahmed & Ors v Chowdhury & Ors (No. 3) [2011] NSWSC 1597; and Ahmed & Ors v Chowdhury & Ors (No. 4) [2012] NSWSC 348. This judgment should be read with those earlier judgments. Events, matters and persons are referred to in this judgment the same way as they are in previous judgments. 2These proceedings resumed today at 2pm. I have heard submissions from both parties about what the next step should be. But for the presence of Mr Ayoub, who appears as amicus curiae from the firm that had once acted for the first plaintiff, Mr Ahmed, the evidentiary situation in this case at this point could simply be described as chaotic. 3Both sides are asking the Court to make orders to convene a meeting. Neither side has given adequate evidence of any of the assertions about the proposed meeting that are being made from the Bar table. This is undoubtedly the product of the fact that neither side has engaged lawyers on a permanent basis. But the Court is not itself in a position to fill that gap for them. I have explained this to the parties several times. 4In a matter with the technical complexities of this one, requiring as it does navigation through the Constitution of the Association and through the Associations Incorporation Act 2009 (NSW), the assistance that lawyers could give would have been of very considerable benefit to both sides. 5Be that as it may, the Court is attempting to deal with the situation as best it can, by proceeding to implement the solution of validating the convening of a general meeting under the Association's Constitution. Both parties say they want to have such a meeting convened to elect a new Executive Council. But there are real disagreements about how this can be achieved. 6The issues are essentially five: (1), a notice of meeting, (2) the venue and time of the meeting, (3) the appointment of returning officer, (4) the list of members, and (5) the nature of the meeting and the question of costs. I will deal with each of these very briefly now. (1) There are still no submissions put by the parties that might lead to a consensus about the way that any notice of meeting should be signed. That is a matter I will have to decide, if a meeting is to be held. (2) On the question of the venue, and time of a meeting there is much disagreement. The parties are agreed that the proposed general meeting can take place on a Sunday at 1pm but disagree about the venue. That is a matter I will also have to decide. But Professor Chowdhury and the defendants seek to have the meeting at the Australian National Bowling Club in Lakemba Road, Lakemba. The plaintiff seeks to have it at the Association's Mosque. There are unsubstantiated allegations on both sides about the adverse consequences of holding the meeting at both of these venues. 7The Court has not been assisted by either party with the proper form of evidence to make a decision about this. But the Court will nevertheless attempt to make a decision one way or the other. I have adjourned this issue to 3pm tomorrow for the purposes of allowing Professor Chowdhury to adduce evidence as to the availability of the alternative Bowling Club venue on 27 May, a date tentatively fixed for this general meeting. But unless there is clear evidence of the availability of that hall on that date and of the fact that Professor Chowdhury or other defendants are in a position to pay for the meeting to be held at that venue, then there is a reasonable chance that the Court will order that it be held at the Mosque. Even if that evidence is available, such a meeting may still be ordered to be held at the Mosque. 8There are also unsubstantiated allegations about third parties who may interfere with the holding of an election at a public venue. There is a complete lack of appreciation, on the part of both parties about the need for proper evidence to be called about persons who might interfere with this election, if that really is sought to be pressed as an issue. I will simply content myself with that observation and I will leave it up to both parties to act upon it, if they are so minded between now and 3pm tomorrow. (3) On the third issue of the returning officer, there is a happy coincidence of agreement. Professor Chowdhury has made some considerable efforts to find an independent returning officer. This is necessary because if an election is to be held an independent returning officer needs to be appointed under the Association's Constitution. There is no Executive Council to appoint the returning officer. And the returning officer has important functions under the Constitution of receiving nominations (Constitution, clause 20A(ii)) and conducting aspects of the election. I am minded, even if an independent person can be found, if there is no other person to do so, to consider whether this independent returning officer could perhaps also preside at this meeting. 9But Professor Chowdhury has found a source of information about the availability of independent returning officers to conduct elections for industrial organisations in New South Wales. It may well be that such a person is appropriately qualified to conduct the kind of election that the parties want here. The parties have now agreed through the kind assistance of Mr Ayoub to see if they can find a person, from among those approved to be returning officers to conduct the industrial elections, to be identified before 3pm tomorrow, so the Court can make appropriate orders. 10I note that the Court would be minded to make orders for the payment of the fees of the returning officer, in sending out notices of meeting and doing all the other acts necessary to conduct an election of the Association, out of the Association funds. But it will be necessary for some quotation for those reasonable fees to be obtained from the returning officer as soon as possible and made available in evidence to the Court tomorrow. 11The default position is if a returning officer cannot be found is that Mr Sheikh could do the job. But I am reluctant to take this course. There is some residual concern that because he is one of the parties to these proceedings it would be better to have someone who is not a party. I do not wish to reflect upon Mr Sheikh's independence. He has certainly undertaken diligently, so far as the Court can see, all the tasks that have been requested of him, to allow some semblance of functional operation of this association to take place, while the parties plan for the holding of an election. Which leads to the next point. (4) The list of members has now been settled by Mr Sheikh in accordance with the request made by the Court on the last occasion. Professor Chowdhury called Mr Sheikh to give evidence and he has explained how that list has been produced. The matter has now been left on the basis that, the first plaintiff, Mr Ahmed, who only received overnight the list of members, which has now become Exhibit B, will review it tonight. This review will occur with a view to asking Mr Sheikh any final questions about that list tomorrow. Unless that opportunity is taken up tomorrow, the list that Mr Sheikh has now described he has produced based upon Mr McDermott's referee's report, will become the list of members. (5) On the question of other orders, an oral application has been made in respect of the costs of the reference. Professor Chowdhury raises the question of whether the Association should be reimbursed for those costs. I have indicated in the course of argument the course the Court proposes on this issue. The Association has its own separate financial interests from the parties to these proceedings. It will have its own views as to whether or not it should be reimbursed for its funds expended on the reference. The better course is to defer argument about such reimbursement of costs, until after the elections take place at a duly convened General Meeting and the Association has a functioning Executive Council to represent it here in Court on that issue. 12Fortunately in respect of other miscellaneous issues, the parties agree that it is simply not yet possible to hold an annual general meeting. Any meeting that is to take place will have to be a general meeting, not an annual general meeting. The reason for that is that the parties have not prepared financial statements in accordance with the Associations Incorporation Act or the Constitution. A full annual general meeting of the Association cannot take place with normal financial statements, as the Constitution requires. Such financial statements have not been prepared by a functioning Executive Council. This therefore must be done on a step by step basis: holding a general meeting first, electing an Executive Council, then holding an Annual General Meeting. 13In summary therefore for tomorrow: (1) Mr Ahmed is going to review the list of members to see if he has any concerns about the way that Mr Sheikh has implemented the Court's decision to adopt Mr McDermott's report; (2) Mr Ayoub is going to see if he can contact a returning officer from the panel of the New South Wales Industrial Relations Commission; and (3), Professor Chowdhury is going to see if he can get some better information about the proposed meeting venue, and as to its availability, and evidence about where the funds to pay for that venue are going to come from on his side and how much they are; and (4) Mr Sheikh is going bring in a bank statement to deal with the miscellaneous matter raised by Mr Ahmed. Mr Sheikh is going to bring in the signature authorisation form from the Association's bankers to allow Mr Ahmed and Professor Chowdhury to sign it by 3 o'clock tomorrow, to facilitate the addition of Mr Ahmed as a signatory, as was contemplated by order 20 of the Court's orders made on 1 March 2012. That applies to all the Association's bank accounts referred to in my orders of 1 March, that is the Commonwealth Bank account and the ANZ Bank account. 14There are other issues that I cannot decide today. These include whether the orders that I have made in December last year should be continued or dissolved. The orders that were made then will be much reduced in their detail after the election takes place.