United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc - [2022] NSWSC 868 - NSWSC 2022 case summary — Zoe

NSWNSWSC

United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc

[2022] NSWSC 868

Supreme Court of NSW|2022-06-08|Before: Kirk J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-06-08

Before

Kirk J

Catchwords

[1948] HCA 35 Calvin v Carr [1980] AC 574 Coleman v Power (2004) 220 CLR 1
[2004] HCA 39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 CSR Ltd v Eddy (2005) 226 CLR 1
[1999] NSWCA 477 Isbester v Knox City Council (2015) 255 CLR 135
[2002] NSWSC 470 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504

Source

Original judgment source is linked above.

Catchwords

[1948] HCA 35 Calvin v Carr [1980] AC 574 Coleman v Power (2004) 220 CLR 1[2004] HCA 39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 CSR Ltd v Eddy (2005) 226 CLR 1[1999] NSWCA 477 Isbester v Knox City Council (2015) 255 CLR 135[2002] NSWSC 470 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504[2008] NSWCA 209 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597[2021] HCA 17 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212[1987] HCA 39 Twist v Randwick City Council (1976) 136 CLR 106

Judgment (36 paragraphs)

[1]

Introduction and summary

These proceedings concern a dispute between the Australian Federation of Islamic Councils (AFIC) on the one hand and two of its constituent State Councils on the other.
The plaintiff in the first dispute, United Muslims New South Wales (UMNSW), has been the State Council of AFIC for NSW, and the plaintiff in the second dispute, Islamic Council for Victoria (ICV), has been the State Council of AFIC for Victoria. All parties involved are incorporated associations.

There are five broad issues in question, although these involve many other points. The five issues, and my resolution of them, can be summarised as follows: 1. Was the Exco validly constituted when it met on 11 March 2022 and made the original expulsion decisions of each of the plaintiffs? If not, what consequence follows? Answer: The Exco was not quorate when it met on 11 March 2022, and its decisions to expel the plaintiffs were invalid. The subsequent decisions of the SGMs are also invalid on this ground. 2. Did the model rules contained in the Associations Incorporation (Model Rules) Regulations 1997 (Tas) (Model Rules) apply in the circumstances and, if so, with what effect? 1. Specifically, were the Model Rules wholly excluded by virtue of what happened when AFIC was first incorporated? Answer: No. 2. Alternatively, were the powers of expulsion excluded or modified by the AFIC Constitution, specifically cll 5(7), 13(e), 18(e)? Answer: No. 3. If the Model Rules did apply: 1. Were the powers to expel UMNSW and ICV from AFIC conditional on a finding of misconduct on their part as members and/or was it only open to AFIC to expel State Councils as members, not as State Councils? Answer: It was open under the Model Rules to expel State Councils, and this power was not limited to expulsion for matters connected to their capacity as member societies, as opposed to being constitutive State Councils, of AFIC. 2. Was the Exco the "committee" for the purposes of the expulsion powers or was it, rather, the Federal Council? Answer: The relevant "committee" for the purposes of rule 33 of the Model Rules is the Exco. 3. Were the SGMs as called by the Exco correctly constituted to hear the appeals under rule 34 of the Model Rules, or should the appeals have been directed to a special meeting of the Federal Congress? Answer: The SGM provided for in rule 34 of the Model Rules is to be constituted by a special meeting of the Federal Congress, as provided for under the AFIC Constitution. Here, no such meetings have yet been held with respect to either plaintiff. As a result, the appeal rights provided to the plaintiffs by rule 34 remain unfulfilled. As a further consequence, that means the plaintiffs currently remain as members of AFIC, pursuant to rule 33(2)(b) of the Model Rules. 1. Was UMNSW denied procedural fairness in relation to its expulsion from AFIC? Answer: Although the Exco's decision to expel UMNSW was affected by a breach of procedural fairness, this breach was rendered obsolete or "cured" by the subsequent appeal hearing in the SGM (on the assumption, contrary to the conclusion I have reached, that the SGM was properly constituted for the appeal hearing). 2. With respect to ICV, was the appeal invalid because of the lack of 14 days notice of the holding of the SGM? Answer: yes. 3. Were the expulsion decisions of the Exco taken for an improper purpose and, if so, does that have the consequence that the expulsion decisions of the SGMs are invalid? Answer: the expulsion decisions of the Exco were taken for an improper purpose, but that does not have the consequence that the decisions of the SGMs are invalid.

[2]

Structure and membership of AFIC

AFIC is an association set up as a national peak body for Islamic societies. Its membership consists of State Councils for each State, Territory and Christmas Island, along with Islamic societies from around Australia.
AFIC has a tri-partite structure for its administration and governance. The Federal Congress is the "highest policy-making organ" of AFIC, with the "ultimate responsibility to achieve the objects and purposes" of AFIC (AFIC Constitution, cl 8). It has the power to "adjudicate upon all matters of controversy and differences between the Federal Council, Executive Committee and the State Councils … and give decisions in respect thereof" (cl 13(e)). The Federal Congress consists of members of the Exco, and delegates representing the State Councils and each society (cll 11 and 12(2)). The State Councils each have two delegates and thus two votes at Federal Congress - one representing the relevant State Council in its capacity as such, and one representing the State Council in its capacity as an ordinary member society: cll 12 and 46; Australian Federation of Islamic Councils Inc v United Muslims New South Wales Inc [2021] NSWCA 311 (2021 CA) at [14] and [67].
The Federal Council controls the affairs and general governance of the Federation, subject to the AFIC Constitution and resolutions of the Federal Congress (cl 9). The Federal Council has power to act for and exercise all the functions of the Congress between its meetings, provided that such actions or decisions are ratified or reversed by Congress (cl 15). It is comprised of four of AFIC's office-bearers and a representative of each State Council (cl 14).
The Exco administers the business and affairs of the Federation, in accordance with the AFIC Constitution and the resolutions of the Federal Congress and Federal Council (cl 10). The Exco may exercise emergency powers to intervene in the affairs of a State Council in limited circumstances (cl 18(e)). It is comprised of six office-bearers and three other members, each of whom is required to be a member of a society (cll 17 and 26).

[3]

Prior proceedings involving AFIC and its State Councils

Questions about AFIC's ability to expel State Councils, to remove office-bearers of State Councils, and issues relating to membership more broadly, have been agitated before this Court with a surprising degree of regularity: 1. In Islamic Council of NSW v Australian Federation of Islamic Councils [2000] NSWSC 115, AFIC purported to appoint a caretaker committee to intervene in the affairs of the plaintiff (a predecessor to UMNSW) to run its affairs until new office-bearers were elected. Hodgson CJ in Eq declared that the purported removal of the NSW State Council's office-bearers by AFIC was invalid. 2. In Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211, Brereton J considered whether certain local Islamic societies in NSW were entitled to membership of AFIC, and therefore of the NSW State Council. 3. In Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360 (MCNSW v AFIC 2009), Bergin CJ in Eq was asked to determine if the Federal Congress of AFIC could expel the then NSW State Council from AFIC in its capacity as a member without a prior decision of the Exco. 4. In Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc [2016] NSWSC 960 (MNSW v AFIC 2016), Stevenson J considered whether a meeting requisitioned to consider a vote of no confidence in then members of the Exco had to be determined by the Federal Congress. 5. The subsequent case of Australian Federation of Islamic Councils Inc v Hafez Kassem [2017] NSWSC 206 concerned the issue of "which of two warring factions controls, and which should control for the time being, the affairs of [AFIC]", to quote McDougall J at [1].
The more immediate background to the current dispute is litigation conducted in 2021. AFIC sought to replace UMNSW with a new body or group of individuals in a meeting convened on 16 January 2021. The meeting was attended by AFIC member societies in NSW. AFIC claimed that its power to displace UMNSW as a State Council was found in the AFIC Constitution. UMNSW disputed that claim, and initiated proceedings against AFIC in this Court.
At first instance Black J, in United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils [2021] NSWSC 382, found in favour of UMNSW on this point. His Honour stated at [67]: "AFIC's constitution does not, in terms, provide a mechanism to appoint a State Council where an existing State Council is already in place or to remove that existing State Council. It also seems to me that a provision for the removal or displacement of an existing State Council, once it was formed, cannot be implied as a matter of construction, where it is inconsistent with the provision in cl 5(2) that it is 'incumbent' on UMNSW as State Council to 'remain a constituent body' of AFIC and where other issues, such as whether procedural fairness would be afforded to the existing State Council before removing or displacing it are not addressed by such an implication."
AFIC then appealed, again claiming that the AFIC Constitution permitted AFIC's member societies in a State to remove the relevant State Council. On 15 December 2021 in the 2021 CA judgment, Bathurst CJ, with whom Bell P and Meagher JA agreed, dismissed the appeal. The Court relevantly made the following points: 1. UMNSW, in its capacity as a State Council, "will be subject to the expulsion provisions contained in the Model Rules" (at [69]). 2. On the claimed power of removal, the following was said at [87]: "under the AFIC Constitution, a State Council can be removed by AFIC by the invocation of the expulsion provisions in the Model Rules, or as a result of it being wound up, or by orders made in proceedings under Ch 2F of the Corporations Act. However, absent the use of the expulsion provisions, AFIC does not have the power to remove a State Council. The removal of UMNSW in this case did not occur by invocation of either of those provisions." 1. In light of the UMNSW and AFIC constitutions, it was "plainly intended that each should operate harmoniously with the other and that member societies in New South Wales were to be members of each of AFIC and UMNSW" (at [74]). 2. Clause 5(8) of the AFIC Constitution makes it clear that an AFIC member society in NSW is entitled to membership of the State Council and imposes an obligation on UMNSW to admit them, subject to its constitution (which is in principle required to conform with the AFIC Constitution). If UMNSW wrongfully refused to admit an AFIC member society to its membership, AFIC would be entitled to bring proceedings to enforce the obligation contained in cl 5(8) of the AFIC Constitution. Similarly, UMNSW could bring proceedings against AFIC if it refused to admit a member society of UMNSW which was entitled to admission under the AFIC rules (at [123]-[124]).

[7]

Were the Model Rules excluded in whole when AFIC was first incorporated?

The plaintiffs argued that the Model Rules had no application at all with respect to AFIC, because they had been wholly excluded. I note that the Court of Appeal considered that the Model Rules, including with respect to expulsion, did apply to AFIC: see at [25], [67]-[69], [84]. However, it appears that it was not argued in that case that they did not apply. That being so, the contrary view in the Court of Appeal is not determinative of the issue raised before me. As McHugh J stated in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79], "[c]ases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue" (see also CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14] per Gleeson CJ, Gummow and Heydon JJ).
AFIC was incorporated in Tasmania following an application made in 1999 pursuant to the Associations Incorporation Act 1964 (Tas) (the Tasmanian Act). In what follows I refer to the current version of the Tasmanian Act, in circumstances where no party suggested there had been any material amendment such that I should refer to some earlier version. As regards the Model Rules the position is different, and I refer to the rules as they stood as at 1999, for reasons explained below.
Section 16 of the Tasmanian Act provides as follows (emphasis added): 16. Model rules (1) The Governor may, by regulations under this Act, prescribe model rules for associations incorporated or desiring to become incorporated under this Act. (2) An association that is proposed to be incorporated under this Act, or that is incorporated thereunder, may, by special resolution, adopt as its rules all or any of the model rules or may so adopt the model rules subject to such modifications as are specified in the resolution. (3) Where an association is incorporated under this Act, in so far as any rules lodged, pursuant to section 7, with its application for incorporation are not inconsistent with or do not exclude or modify the model rules as then in force, the model rules shall be deemed to form part of the rules of the association in the same manner and to the same extent as if they were contained in the rules so lodged. (4) No alteration of the model rules applies to an association that is incorporated before the regulation prescribing the alteration comes into operation, unless the association, by special resolution, adopts the alteration as part of its rules.
It can be seen that it is open to an association to exclude or modify the Model Rules. Subject to the Act itself, an association may choose what rules apply to its internal governance. The Model Rules fill "a default function", such that "where an association's rules do not make provision for a matter addressed by the model rules, the latter fills that gap by being taken (or deemed) to form part of the association's rules pertaining to that matter": GE Dal Pont, Law of Associations (LexisNexis, 2018), [6.42].
It is convenient to address at this point how the notion of being "not inconsistent" in s 16(3) of the Tasmanian Act is to be understood. Neither party addressed this question. In Young v Cotter [1996] NSWCA 573 at 5, Sheller JA stated as follows (Meagher and Handley JJA agreeing): "The inter-action of the model rules and the rules of an association must be governed, in the first instance, by consideration of the matters with which they expressly deal in direct terms, rather than by consideration of whether clauses in the rules, which do not directly deal with a matter the express subject of the model rules, could be said in some general sense to cover the field".
The NSW provision at issue there was (and is) different from s 16(3) of the Tasmanian Act. Sheller JA said at 3 that the former provided "that where in relation to any matter the model rules make provision but the rules of an association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the association" (see now Associations Incorporation Act 2009 (NSW), s 25). In contrast, s 16(3) does not speak of making provision with respect to a "matter". It makes clear that the association may exclude or modify the Model Rules, and expressly employs the notion of being "not inconsistent". Because the association may exclude or modify the Model Rules, the views of the association are, in this regard, paramount. This is not an instance of seeking to reconcile two sets of provisions from the same rule-maker. If a Tasmanian association wished to "cover the field" in some regard, it would be open to it to do so. The association may, indeed, wish to exclude the Model Rules altogether.
The wording of s 16(3) suggests that the issue of the two sets of rules being "not inconsistent" is something beyond the Model Rules being excluded or modified. No doubt there is a significant degree of overlap, because inconsistency will arise by the very fact of something being excluded or modified. The use of the additional words of "not inconsistent" suggests that an inconsistency could arise other than by express exclusion or modification.
Australian law has a well-developed understanding of inconsistency in terms of clashes between federal and State law (under s 109 of the Constitution) and between federal and Territory Law (under the self-government legislation). Leaving aside debates about "covering the field", the core question there is whether the non-overriding law alters, impairs or detracts from the paramount legislation: see eg Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, at [72] per Gageler J, and at [107] per Edelman J. There is a reasonable analogy between that type of context and the issue at hand here, given that the association's own rules have paramountcy over the Model Rules. In my view, it is reasonable to ask in the context of applying s 16(3) whether (in the absence of express exclusion or modification) application of the Model Rules would alter, impair or detract from the operation of the rules of the association. Here, those rules are found in the AFIC Constitution.
I was provided with a copy of the Associations Incorporation (Model Rules) Regulations 1997 (Tas) as they existed in 1999. The parties agreed that it was the Model Rules as found within this version of the Regulations which were applicable. That was so because s 16(4) provides that alterations of the Model Rules made after an association becomes incorporated do not apply to that association unless the alteration is adopted by special resolution. There was no evidence of any such special resolutions here.
In earlier litigation involving AFIC the parties appear to have relied on other versions of the Model Rules, as opposed to the version as at 1999: MCNSW v AFIC 2009 at [16]; AFIC v MNSW 2016 at [11]. As regards the expulsion provisions, however, there does not appear to have been any material amendment, although the numbering of the provisions has changed.
I note in passing that cl 13 of the 1999 version of the Model Rules contains a requirement that notices of general meetings (which include special general meetings) must be published "in at least one newspaper published in this State" at least 14 days before the meeting. No point was raised about the apparent non-fulfilment of that requirement in this matter.
Section 16(3) of the Tasmanian Act refers to inconsistency between the Model Rules and "the rules of the association". The parties accepted that that latter reference would encompass the constitution of an incorporated association.
Section 7(2)(b) of the Tasmanian Act provides that an application for incorporation shall be accompanied by, amongst other things: (i) a copy of the rules of the association and any trusts relating to the association, and, if the rules or trusts are embodied in a deed, a copy of the deed; (ii) a statement that the model rules have been adopted without modification; or (iii) if the association has adopted the model rules with modification, a copy of the modification subject to which the model rules were adopted.
Consistently with this provision, the application form for registration of AFIC in Tasmania had apparently standard form words contemplating what might be annexed to the application, referring to "rules", "rules and trusts" and "modifications subject to which the model rules were adopted". In AFIC's application form, which is dated 14 October 1999, the former two possibilities were crossed out, leaving just the third (ie "modifications subject to which the model rules were adopted"). The form also stated that the "minimum modifications are the insertions to" various identified rules, being rules requiring some details relating to the particular incorporated association to be included (namely rules 1, 3, 5(12), 23(1)(b), 30(1) and 31). It appears that such details were not provided with the application.
The plaintiffs said that the only thing that was annexed to the application was AFIC's constitution. They argued that that fact, together with the not crossed out words "modifications subject to which the model rules were adopted", constituted a wholesale exclusion of the Model Rules.
I reject that argument. The question turns on ascertaining what decision as to adoption or not of the Model Rules was communicated by the completed form. The reference in the form to "modifications subject to which the model rules were adopted" appears to contemplate that an applicant might provide a particular list of modifications to the Model Rules. That is not what occurred here. There is no statement in the form that the Model Rules have been adopted without modification (as contemplated by s 7(2)(b)(ii)). Yet there is also no statement that the Model Rules were being excluded on a wholesale basis. By leaving the words "modifications subject to which the model rules were adopted" not crossed out, it was implied that the Model Rules were being adopted, albeit with modifications (as contemplated by s 7(2)(b)(iii)).
What modifications were being adopted? In the absence of any precise identification of modifications, the natural reading of the application is that the Model Rules were being adopted subject to such modifications as were express or implied in the intended constitution (consistently with s 16(3) of the Tasmanian Act).
The plaintiffs submitted that AFIC did not opt to take the "minimum modification" route as none of the gaps in those rules identified on the form had been filled. By and large those gaps could be understood as being filled by the details contained in the AFIC Constitution and in the remainder of the application form. Insofar as those gaps were not filled, then the relevant rule in the Model Rules may have no operation. The existence of any such gaps is not sufficient to exclude the implication from the form that the Model Rules were being adopted.
I thus reject the plaintiffs' argument that the Model Rules were wholly excluded by virtue of what occurred when AFIC applied to be incorporated.

[8]

Were the expulsion provisions of the Model Rules excluded because inconsistent with the AFIC Constitution?

The plaintiffs next argued that the powers of expulsion contained in the Model Rules were excluded or modified by the AFIC Constitution, specifically because they were inconsistent with clls 5(7), 13(e) and 18(e) thereof, taken together with the absence of any express power in the Constitution to expel a State Council. As I understood the argument, it was said that the expulsion provisions in the Model Rules were excluded altogether (ie as regards all member societies), or alternatively were excluded as regards State Councils in particular.
The Court of Appeal held that the expulsion provisions of the Model Rules were available as against a State Council: at [84]-[87]. However, it was not suggested to me that the contrary had been argued on the basis of inconsistency. Again, therefore, that conclusion is not determinative of the arguments put here.
The three named clauses of the AFIC Constitution relied upon by the plaintiffs provide as follows: "5. Structure and Membership of AFIC … (7) Acceptance of new member Societies or expulsion of an existing member Society shall be in accordance with the provisions of this Constitution and relevant resolutions of the Federal Congress/Council. Only member societies of the AFIC which have paid their membership subscription to the AFIC are eligible to participate in the affairs of the AFIC or the relevant State Council' 13. Powers and Functions of the Federal Congress In addition to any powers conferred upon it by the Constitution the Federal Congress shall have powers: … (e) To adjudicate upon all matters of controversy and differences between the Federal Council, Executive Committee and the State Councils or between State Councils and their member Societies and give decisions in respect thereof. 18. Powers and Functions of the Executive Committee The powers and functions of the Executive Committee shall include: … (e) To exercise emergency powers and directly intervene in the affairs of a State Council only if the situation warrants immediate action by A.F.I.C. The degree and form of intervention will be determined by the Executive Committee itself. The Executive Committee may seek and obtain the advice of all the members on the panel of Islamic Arbitrators as per Rules for the Conduct of Islamic Arbitration as per Section 60(12) and act on this advice as early as possible to address and resolve the problems / disputes occurring in a member state Council or Islamic Society. Examples of circumstances which require invoking of these powers are: (i) Infiltration of non-Muslims in the State Council. (ii) Infiltration of persons widely suspected to be non-Muslims in the State Council. (iii) Persistent defiance of AFIC policies and AFIC Constitution by the State Council. (iv) Long absence from meetings of the majority of the office-bearers of the State Council paralysing the affairs of the State Council. (v) Serious division in the State Council members to run the affairs of the Council. Action taken under these powers shall be presented to and ratified by the Federal Council."
The expulsion provisions in the Model Rules are contained in rules 33-34: "33. Expulsion of members (1) The committee may expel a member from the Association if, in the opinion of the committee, the member is guilty of conduct detrimental to the interests of the Association. (2) The expulsion of a member under subrule (I) does not take effect until whichever of the following is the later date: (a) the expiration of 14 days after the service on the member of a notice under subrule (3); (b) if the member exercises his right of appeal under this rule, the conclusion of the special general meeting convened to hear the appeal. (3) If the committee expels a member from the Association, the public officer of the Association, without undue delay, is to cause to be served on the member a notice in writing - (a) stating that the committee has expelled the member; and (b) specifying the grounds for the expulsion; and (c) informing the member of a right to appeal against the expulsion under rule 34. 34. Appeal against expulsion (1) A member may appeal against an expulsion under rule 33 by delivering or sending by post to the public officer of the Association, within 14 days after the service of a notice under rule 33(3), a requisition in writing demanding the convening of a special general meeting for the purpose of hearing the appeal. (2) On receipt of a requisition - (a) the public officer is to immediately notify the committee of its receipt; and (b) the committee is to cause a special general meeting of members to be held within 21 days after the date on which the requisition is received. (3) At a special general meeting convened for the purpose of this rule - (a) no business other than the question of the expulsion is to be transacted; and (b) the committee may place before the meeting details of the grounds of the expulsion and the committee's reasons for the expulsion; and (c) the expelled member is to be given an opportunity to be heard; and (d) the members present are to vote by secret ballot on the question whether the expulsion should be lifted or confirmed. (4) If at the special general meeting a majority of the members present vote in favour of the lifting of the expulsion - (a) the expulsion is to be taken to have been lifted; and (b) the expelled member is entitled to continue as a member of the Association. (5) If at the special general meeting a majority of the members present vote in favour of the confirmation of the expulsion - (a) the expulsion takes effect; and (b) the expelled member ceases to be a member of the Association."
In MCNSW v AFIC 2009 an issue arose as the validity of a proposed motion to be put to AFIC's Federal Congress for the expulsion of the then State Council for NSW (a predecessor of UMNSW). There had been no prior decision by the Exco of AFIC for expulsion. Bergin CJ in Eq held that it was not possible to expel a State Council in that way - it was necessary for there to have been a prior decision by the Exco. But her Honour rejected a broader argument by the State Council that the Constitution was inconsistent with the expulsion provisions in the Model Rules: "[19] The plaintiff submits that the Constitution is inconsistent with and excludes r 32. It was submitted that r 5(7) specifically provides for the expulsion of member Societies and that the Court should infer that a deliberate decision has been made not to provide for the expulsion of State Councils. It was also submitted that such a conclusion is supported by the fact that State Councils have numerous rights referred to in the Constitution which are not afforded to member Societies. These include the right to be represented at the Federal Congress and to vote and a right to have a Chairman as member of the Federal Council, to nominate candidates for Executive Committee positions, to vote in the election of the Executive Committee and a right to propose resolutions at Federal Congress. [20] Rule 5(7) relates to member Societies. It deals with both acceptance and expulsion of those Societies and requires such to be 'in accordance with the provisions' of the Constitution. There is nothing in the Constitution dealing with a regime or scheme to be followed for the expulsion of such member Societies. [21] I am not satisfied that there is anything in the Constitution as it relates to the expulsion of 'members' that is inconsistent with the Model Rules. Section 5(7) is not an exhaustive provision covering expulsion of members. It deals specifically with the expulsion of a 'member Society', and in my view is not inconsistent with r 32. Indeed r 32 provides the regime for the expulsion process."
In that case it was an agreed fact that the State Council was a member of AFIC: see at [4]. A similar agreement is recorded by Stevenson J in MNSW v AFIC 2016 at [35]. Here, UMNSW has made a formal submission that State Councils are not members of AFIC. The issue of whether or not UMNSW was required to be a member of AFIC as a State Council was argued in the Court of Appeal, and it was held that it was: see 2021 CA at [14]. I am bound by that conclusion. That point immediately undermines any attempt to distinguish between State Councils and other member societies.
In my respectful view there is force in the analysis of Bergin CJ in Eq, quoted above. The first sentence of cl 5(7) of the AFIC Constitution suggests that there is a power to expel member societies, but the Constitution does not go on to make any provision for such expulsions, for example with respect to the mechanisms or criteria involved. As her Honour suggested, the Model Rules fill that gap, and can thus be seen as being not only not inconsistent with the AFIC Constitution, but complementary. Applying the expulsion provisions in the Model Rules does not alter, impair or detract from the operation of cl 5(7).
Neither cl 13(e) nor cl 18(e), as invoked by the plaintiffs here, leads to a different result. Clause 13(e) authorises Federal Congress to adjudicate upon all matters of controversy and differences between, inter alia, the Federal Council, the Executive Committee and State Councils. Expulsion of a State Council might well arise following controversies involving or differences between, say, the Exco and the State Council. But most such disputes would fall short of producing such a consequence. There is no inconsistency between this general power of adjudication and a more specific set of provisions dealing with the extreme sanction of expulsion. Further, the Court of Appeal held that cl 13(e) did not extend to enable the removal of a State Council: 2021 CA at [84]. There is thus no overlap in operation between that clause and the expulsion provisions in the Model Rules.
Clause 18(e) empowers the Exco to "exercise emergency powers and directly intervene in the affairs of a State Council only if the situation warrants immediate action by AFIC". Exercising a power of intervention may be one way of responding to issues arising with respect to a State Council. But there is nothing in the provision to suggest that it is the only power available to the Exco to respond to such issues.
The plaintiffs make three further arguments which they say should lead me to conclude that the conclusion of Bergin CJ in Eq should now be regarded as plainly wrong: 1. They suggest that the reference in cl 5(7) to acceptances or expulsions of members being "in accordance with … relevant resolutions of the Federal Congress/Council" suggests that only bodies "above" the Exco can expel a member society. 2. They argue that the decision of Bergin CJ in Eq is inconsistent with [81] of the Court of Appeal's decision (which was delivered well after her Honour's decision). 3. They say it is also inconsistent with an aspect of the decision of Stevenson J in AFIC v MNSW 2016 at [54]-[56].
As to the first argument, in substance this raises the issues of whether the relevant "committee" for the purposes of rule 33 is the Exco, and whether or not the appeal right to a general meeting provided for in rule 34 of the Model Rules should be exercised in a Federal Congress meeting. I address those issues below. Leaving those points aside, cl 5(7) can sit consistently with the Model Rules. That clause says very little about how expulsion is to be approached, other than that it is to be "in accordance with … relevant resolutions of the Federal Congress/Council".
The second argument is founded on [81] of the Court of Appeal's decision, in which Bathurst CJ stated: "So far as the Executive Committee is concerned, whilst it may intervene in the affairs of a State Council under cl 18(e) of the AFIC Constitution, its powers do not extend to the removal of a State Council, and in any event are subject to ratification by the Federal Council acting on behalf of the Federal Congress."
The plaintiffs' argument has no merit. The statement is directed to the extent of power under cl 18(e). As noted above, Bathurst CJ went on at [84]-[87] to conclude that the expulsion powers in the Model Rules could be employed against a State Council.
As to the third argument, the dispute determined in MNSW v AFIC 2016 related to whether a Federal Congress meeting was a "general meeting" for the purposes of s 22A of the Tasmanian Act: see at [23]-[26]. That provision authorised 10% of members to requisition a "general meeting". It had been relied upon by the then NSW State Council and others to call a meeting for the purposes of considering a no confidence motion in members of the then Exco. Under cl 28(1)(c)(iv) of the AFIC Constitution, such officer-bearers could be disqualified by effect of a motion of no confidence passed by special resolution at a meeting of either Federal Congress or Federal Council. The issue was whether the general meeting requisitioned under s 22A required that a meeting of Federal Congress be convened. Stevenson J held that it did. His Honour concluded at [54] that "a meeting of the Federal Congress of AFIC is also a general meeting of AFIC".
I address below whether or not there is some tension between that decision and the decision of Bergin CJ in Eq, and whether the conclusion of Stevenson J is applicable here as regards expulsions. For current purposes, however, the conclusion that a general meeting of AFIC requisitioned under s 22A is to be a Federal Congress meeting does not throw any significant light on whether or not the AFIC Constitution is inconsistent with the expulsion provisions in the Model Rules.
Taking account of these arguments, I do not consider that the conclusion of Bergin CJ in Eq that the expulsion provisions of the Model Rules could apply to State Councils is plainly wrong. On the contrary, I consider that it was and is correct.

[9]

Was the power to expel under the Model Rules limited to their conduct as members?

UMNSW submitted in its opening written submissions that the proper application of the expulsion provisions in the Model Rules must "be limited to expulsion for conduct detrimental to the interests of AFIC in a member's capacity as a member". ICV submitted in its closing written submissions that "it cannot be expelled from AFIC on account of conduct carried out in its own right". It says that it was expelled for reasons to do with its consideration of its own membership, which was (to paraphrase) its own business and not the business of AFIC.
There are a number of difficulties with these submissions. First, the submissions appear implicitly to be founded on a premise that State Councils are not members of AFIC or, perhaps, are both members of AFIC and also distinct constitutive parts. As noted above, the Court of Appeal concluded that State Councils are members of AFIC. It is artificial to suggest that they also have some distinct role in AFIC which can be divorced from being members. True, as noted above, State Councils do have two votes at Federal Congress meetings, being one as State Council and one as an ordinary member: AFIC Constitution, cll 12 and 46; 2021 CA at [14] and [67]. But that recognition of dual characters in relation to certain voting rights does not mean State Councils could participate in the affairs of AFIC in that capacity without also being members.
Secondly, the criterion for expulsion in rule 33(1) is that "the member is guilty of conduct detrimental to the interests of the Association". Conduct could be detrimental to the interests of an association in a range of ways. There is no basis or reason to read in a limitation that the relevant detrimental conduct must be limited to actions undertaken in one of two capacities held by a State Council under the AFIC Constitution but not the other, even assuming that any such distinction could be drawn.
More particularly, the Court of Appeal held as regards UMNSW that "looking at both constitutions overall it was plainly intended that each should operate harmoniously with the other and that member societies in New South Wales were to be members of each of AFIC and UMNSW": 2021 CA at [74], see also [35]-[36], [85], [121]-[124], [133]. In that context, a failure by UMNSW to take steps reasonably available to it to ensure that the memberships aligned could constitute action detrimental to the interests of AFIC.
Thirdly, the AFIC Constitution does not identify particular associations as holding the position of State Councils for the various States. The term "State Council" is defined generically in cl 3 as a "Council of AFIC societies formed in each State or Territory of Australia as provided by this Constitution". Clause 5 is headed "Structure and Membership of AFIC", and refers to State Councils, which are "to remain a constituent body of the Federation" (cl 5(2)). But particular entities are not nominated. Nor does that occur anywhere else in the Constitution. Rather, it is implicit that certain associations will be recognised as State Councils. That fact undermines any claim that the particular bodies currently recognised as State Councils are entrenched in that position. Indeed, UMNSW was only incorporated in July 2016, and is at least the third entity to be recognised as State Council for NSW (two predecessors having being plaintiffs in MCNSW v AFIC 2009 and MNSW v AFIC 2016). That history significantly undermines the plaintiffs' claim that one specific entity must be and remain the State Council for any particular State.
I thus find that it was open under the Model Rules to expel State Councils, and this power was not limited to expulsion for matters connected to their capacity as member societies, as opposed to being constitutive State Councils, of AFIC.

[10]

Was the Executive Committee the relevant committee under the Model Rules?

The plaintiffs submit that the "committee" referred to in rule 33 of the Model Rules as having the power to expel members should not be understood, in the context of AFIC's Constitution, as referring to the Exco. Rather, they submitted, it should be understood as a reference to the Federal Council. It was the Exco which took the initial expulsion decision against each of the plaintiffs.
In MCNSW v AFIC 2009 Bergin CJ in Eq proceeded on the basis that the committee was the Exco (see at [24]-[25]), but it appears that it was not suggested that the Federal Council might be the relevant body.
The plaintiffs first argument here is, in essence, that the Model Rules create a distinction between the "committee" and the "executive committee". It is suggested that this structure echoes, broadly, the division between the Exco and Federal Council. The division drawn in the Model Rules is as follows: 1. Rule 21(1) states that the "affairs of the Association are to be managed by a committee of management constituted as provided in rule 23". The committee has powers granted under rule 21(2) of the Model Rules, including "to control and manage the business and affairs of the Association", and to "exercise all the powers and perform all the functions of the Association, other than those powers and functions that are required by these rules to be exercised by general meetings of members of the Association". 2. The executive committee is empowered to "issue instructions to the public officer and the servants of the Association in matters of urgency connected with the management of the affairs of the Association during the period between meetings of the committee" (rule 29(2)).
A difficulty with this argument is that, for AFIC, no correlative distinction can be drawn between the committee and executive committee. Under the Model Rules the only difference in the composition of the two bodies is that the committee has, in addition to the officers of the association, "… other members" of the association as elected at the annual general meeting: rule 23(1)(b). However, for AFIC no number of "… other members" has been identified. No doubt that is because the AFIC Constitution makes its own provision for a tripartite structure. And the Federal Council is not constituted by all the Exco plus some elected members, in a way that might correlate to the executive committee. Rather, it is constituted (in terms of voting rights) by a subset of four members of the Exco, together with the President/Chairman of each State Council: cl 14. In this context there is no relevant distinction that can be drawn for AFIC between the committee and the executive committee of the kind referred to in the Model Rules.
The plaintiffs then argue that the body which most closely correlates in powers and position to the committee in the Model Rules (as opposed to the executive committee) is the Federal Council. They rely on cll 8-10 of the AFIC Constitution: "8. Policy making and Ultimate Responsibility The Federal Congress shall be the highest policy-making organ of the Federation, and shall have ultimate responsibility to achieve the objects and purposes of the Federation. 9. General Government and Control The general government and control of the affairs of the Federation shall be vested in the Federal Council and it shall exercise its power as the governing body subject to this Constitution and the resolutions of the Federal Congress. 10. Management and Administration The business and affairs of the Federation shall be manned and administered by the Executive Committee in accordance with this Constitution and the resolutions of the Federal Congress and the Federal Council."
Under cl 13(a) the Federal Congress has power to "control, manage and administer the affairs of the Federation generally". Clause 15(a) provides that the Federal Council has the power and function to "act for and exercise all the functions of the Congress between its meetings in all matters provided always that such actions or decisions must be ratified or reversed by the Congress" (thus picking up the power of Congress in cl 13(a)).
The Exco has powers and functions granted by cl 18, including to "manage and administer the business and affairs of the Federation", and to "carry out decisions and resolutions of the Federal Congress and the Federal Council, and to exercise such powers and functions as may be delegated to it by them".
Thus both the Federal Council and the Exco can be said to have executive functions and powers in administering the affairs of AFIC. And there is no doubt that the Exco does so subject to the wishes of the Federal Council. There is thus some potential force in the plaintiffs' argument that it is the Federal Council which should be regarded as the committee for the purposes of the Model Rules.
As noted, rule 21(1) of those rules states that the "affairs of the Association are to be managed" by the committee, and rule 21(2) says that the committee "is to control and manage the business and affairs of the Association". Within AFIC, the Federal Council has a greater degree of control than the Exco, in the sense that it is the superior body. However, the Exco has a greater practical role in the management of the affairs of AFIC. Under AFIC's Constitution, the Federal Council is not permitted to meet more than four times per financial year: cl 40. In contrast, the Exco "shall meet for its business at such time and place as it shall think fit": cl 43. Under the Model Rules, the committee "is to meet at least once in each month at any place and time the committee determines". The Federal Council could not act consistently with that direction. That point is not conclusive, because the Model Rules give way to the Constitution pursuant to s 16(3) of the Tasmanian Act. Nevertheless, the Exco is the more flexible body of the two, and in practical terms was always likely to be the main executive decision-making body for AFIC, thus correlating to the role of the committee under the Model Rules.
AFIC submits that under cl 15 of the Constitution the Federal Council's powers are to exercise the functions of Congress between meetings. It says that for the Federal Council to be the convening entity for the purposes of rules 33-34, "there must be an anterior finding that the powers granted by those Rules are also granted to the Congress and so can be exercised in effect by the Council as the Congress' delegate". It says no such construction is sensibly available. I am not persuaded that such a construction could not be available, given that the Model Rules might be seen as adding to the powers of the Federal Council. However, it is not necessary to determine the issue, as I am not otherwise persuaded by the plaintiffs' arguments on this issue.
On balance, I conclude that it is the Exco of AFIC which constitutes the relevant "committee" for the purposes of rule 33 of the Model Rules.

[11]

Should the appeal have been to the Federal Congress instead of an SGM under the Model Rules?

The plaintiffs argue that their appeals against expulsion, as provided for by rule 34 of the Model Rules, should have gone to the Federal Congress, and not (as they did) to the type of SGM provided for under the Model Rules. In support of this proposition they rely on cl 34(1)(b) of the AFIC Constitution and the decision of Stevenson J in MNSW v AFIC 2016.
Clause 34 relevantly provides: "(1) The meetings of the Congress shall be as follows: (a) Annual/Bi-annual Meetings. (b) Special Meetings, if required. (2) The meetings of the Congress shall be called by the Secretary of the Federation: (a) In the case of Annual/Bi-annual meetings as provided by this Constitution. (b) In the case of Special Meetings, upon receipt of written request setting forth the subject of such a meeting and signed by the Chairman-President of at least four (4) State Councils for an on behalf of their respective Councils, provided always that the interval between the meetings of the Congress shall not be less than four (4) months, except in case of urgent need."
AFIC's argument in response is simple: rule 34 provides for a particular mechanism for appeal, in the form of a special general meeting as provided for by the Model Rules. If it were to go to the Federal Congress, then the constituency would be different. Rule 34 contemplates voting by the members of the association, with each having a single vote (see rule 18 taken together with rule 34(3)-(5)). In contrast at Federal Congress meetings, pursuant to cll 12 and 46 of the AFIC Constitution, the State Councils have two votes. Senior counsel for AFIC submitted that there would be a "distortion of the voting base if one was to construe the reference to a special meeting" in the Model Rules as referring, as regards AFIC, to a meeting of Federal Congress.
In my view AFIC's arguments should be rejected. Indeed, the very points AFIC makes point in the other direction.
A key part of AFIC's argument was that, pursuant to s 16(3) of the Tasmanian Act, rules 33-34 of the Model Rules are "deemed to form part of the rules of the association in the same manner and to the same extent as if they were contained in the rules so lodged". It says that the meaning, then, of rules 33-34 "is to be gleaned not from the Model Rules but from the Constitution into which they have been transposed", citing Herzfeld and Prince's Interpretation (Thomson Reuters, 2nd edn, 2020) at [23.90] in support of that proposition.
It may be accepted that the Model Rules are to be read together with the Constitution to the extent that they are incorporated. But, pursuant to s 16(3), those rules are only incorporated insofar as the provisions of the Constitution "are not inconsistent with or do not exclude or modify the model rules". To argue from a premise that the Model Rules create rights in members which should not be trumped by provisions in the Constitution is to have things the wrong way around. Insofar as there is inconsistency, it is the Constitution which trumps the Model Rules.
In the Model Rules, rule 34 provides for the convening of a "special general meeting" to determine any appeal lodged. That term is defined in rule 2 to mean "any general meeting other than the annual general meeting". The term "general meeting" is defined in the same rule as including an annual general meeting and any special general meeting. Rule 18(1), implicitly relied on by AFIC, provides that on any question arising at a general meeting "a member has one vote only". In this context, the reference to an SGM in rule 34 is not to some entirely distinct mechanism, but to the notion of an SGM provided for in the Model Rules, albeit one where a particular procedure is to be adopted (eg there is to be a secret ballot).
As quoted above, cl 34(1)(b) of the AFIC Constitution provides for Federal Congress to meet in "special meetings". Clause 34(2) contemplates that such meetings may be requisitioned by the heads of at least four State Councils. A meeting requisitioned in that way is not the type of meeting at issue here. However, the question remains whether the reference to an SGM in the Model Rules should be understood to be a special meeting of Congress.
As noted above, under cl 13(a) of the Constitution the Federal Congress has power to "control, manage and administer the affairs of the Federation generally". It is the Federal Congress which elects the officers of AFIC, other than the Assistant Secretary and Assistant Treasurer, who are appointed by the President: cll 17, 32-33. Clause 5(7) refers to acceptance of new members societies or expulsion of existing members "being in accordance with the provisions of this Constitution and relevant resolutions of the Federal Congress/Council". As noted above, the Constitution does not in fact address how expulsions are to be dealt with. Nevertheless, this provision supports the view that the Federal Congress is to have some determinative role in such expulsions.
Put simply, Federal Congress is the ultimate authoritative body within AFIC's constitutional structure. It plays the type of role which general meetings of members play under the Model Rules (see rules 11-12, 22-24). It is for that reason that Stevenson J concluded in MNSW v AFIC 2016 that a general meeting requisitioned under s 22A of the Tasmanian Act required that a meeting of Federal Congress be convened. It will be recalled that his Honour stated at [54] that "a meeting of the Federal Congress of AFIC is also a general meeting of AFIC".
Thus it is not a "distortion", as AFIC suggests, for an SGM under rule 34 of the Model Rules to be constituted by a special meeting of the Federal Congress. That result is consonant with the structure of the organisation, as addressed in detail in the AFIC Constitution. Rather, it would be a distortion were a differently constituted body to be inserted into that structure to make a decision of great importance to the organisation. Such a result would alter, impair and detract from the decision-making structure and responsibilities provided for in the AFIC Constitution.
In MCNSW v AFIC 2009, Bergin CJ in Eq stated at [26] that the "terms of the Constitution, in particular the scheme in r 32, support the conclusion that it was never envisaged that the Congress, with broader membership than the Executive Committee would have the power to expel members". Her Honour's reference to rule 32 is to what is rule 33 of the 1999 version of the Model Rules. The argument she was there addressing, and rejecting, was whether the Federal Congress should play the initial decision-making role allocated to the Exco. Her Honour was not addressing whether or not the Federal Congress was the correct body to determine any appeal made pursuant to rule 34, as that was not in issue before her.
One of the points her Honour made in support of her conclusion, at [26], was that "delegates of the Congress have obligations both to the Congress and to their own members and constituent bodies, whereas the Executive Committee has the interests of the defendant as its paramount obligation". Such a point might equally be made of representatives of member societies meeting at the kind of SGM provided for in the Model Rules. It does not militate against recognising the Federal Congress as constituting that SGM.
Another of her Honour's reasons, at [27], was that were the Federal Congress to have primary decision-making responsibility then a body expelled would not have the benefit of the appellate rights provided by the Model Rules. Again, that does not suggest that the Federal Congress is inapposite to be the appellate body. Indeed, implicit in this reason is a recognition that there can be no higher decision-making body under the AFIC Constitution than the Federal Congress.
Bergin CJ in Eq did refer at [27] to the Model Rules providing "for an appeal process at a special general meeting". But that is not inconsistent with my conclusion, which is that the SGM provided for in the Model Rules is to be conducted by way of a special meeting of the Federal Congress.
In my view, thus, the appeal process initiated by each of the plaintiffs should each have led to a meeting of Federal Congress. At each of those meetings, voting should have been undertaken according to the voting entitlements provided for in the Constitution. I note, in passing, that the provision in rule 34 for secret voting would still apply.
It was not suggested to me that the two SGMs held to consider the plaintiffs' appeals could be characterised as meetings of the Federal Congress. And it is clear that voting entitlements were not counted in the manner set out in the Constitution for such meetings. In this context, the plaintiffs' exercise of their right to appeal pursuant to rule 34 of the Model Rules remains unfulfilled. Subject to consideration of discretionary matters, the plaintiffs would be entitled to declarations accordingly. That conclusion also has the consequence that the plaintiffs currently remain members of AFIC, as rule 33(2) of the Model Rules provides that when the expelled member exercises a right of appeal, the expulsion does not take effect until the conclusion of the SGM convened to hear the appeal.
That leaves for consideration whether I should decline relief to this effect in my discretion. I do not accept the submissions by AFIC that I should decline relief. The points made by AFIC in that regard, and my reasons for rejecting those submissions, are addressed below with respect to the short notice point and the inquorate point (issues (4) and (1) respectively).

[13]

Issue (3): The claimed breaches of procedural fairness

UMNSW claims that it was denied procedural fairness in the decisions to expel it. The focus of its complaint is what was notified to it prior to the Exco's expulsion decision on 11 March 2022. It complains it was not informed of: 1. "any meeting of the AFIC Executive Committee in which it would decide whether UMNSW would be expelled from AFIC"; 2. "the charge that UMNSW had continued to 'retain' non-AFIC members as members of UMNSW"; or 3. "a requirement that UMNSW was to provide a commitment to AFIC to inter alia 'exclude' non-AFIC member societies from membership of UMNSW", that is, as opposed to excluding such non-AFIC members from participating in AFIC affairs.
ICV only complains that it was denied procedural fairness with respect to the first of these points; in its closing submissions it dropped its complaint about the other two points. Its complaint with respect to the first matter seems to hinge, only, upon inadequate notice being given of the SGM. I address that point separately below. In what follows, thus, I will focus on the position of UMNSW.
The plaintiffs also raised an issue in their respective amended points of claim that there was no power to expel them "as the dispute was required to be the subject of mediation and, if required, arbitration under the terms of the AFIC Constitution". Clause 60 of the AFIC Constitution deals with mediation and arbitration of "any dispute arising between the members, societies, or institutions, State or Territory Councils and/or any instrumentality of the AFIC". I received no substantive submissions on this issue. I asked on the first morning if the point was pressed, and had the following exchange with counsel for the plaintiffs: "DIXON: The only aspect that is pressed is that there was an ability under the AFIC Constitution to take that path. It is a path that is contemplated by various rules, including r 13(e), and it just adds to the denial of procedural fairness aspect of it, because there was a real dispute and the guillotine came down before the parties had a chance to ventilate and agitate those matters. HIS HONOUR: In effect, it is put as a particular of lack of procedural fairness. DIXON: Yes. HIS HONOUR: Dr Blount, is the same true for you? BLOUNT: And I adopt the reply given to your Honour by Mr Dixon."
So put, the reference to arbitration does not seem to add anything of substance to the procedural fairness complaint, and I will not address it separately.
AFIC accepted that the plaintiffs were entitled to procedural fairness in the decision-making process (as to which, see eg McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470 at [80]-[102] per Campbell J (Burning Palms)). However, it submitted that if there was any breach of procedural fairness by the Exco (which it denied) this was "cured" by the subsequent appeals to the SGMs.
The first complaint raised by UMNSW is that it was not informed of the fact that the Exco would hold a meeting to decide whether UMNSW would be expelled from AFIC. That complaint is without merit. AFIC's letter of 24 February 2022 is headed "Show Cause Notice", and includes the following: "We put UMNSW on notice that the AFIC Executive Committee considers UMNSW's conduct in that respect to be detrimental to the interests of AFIC. The Committee is presently of the view that if this conduct continues it will have little choice but to expel you from AFIC pursuant to rule 33 of the Model Rules in Schedule 1 of the Association Incorporation (Model Rules) Regulations 1997 (Tas). If we do not receive a satisfactory response within 14 days from the date of this letter, UMNSW can expect to receive a notice under rule 33(3) of the Model Rules."
Very clear notice was thus provided of the Exco's intention to consider expelling UMNSW pursuant to the Model Rules. That was sufficient to communicate that a meeting of the Exco would be convened to consider that issue. For completeness, I note that ICV also received a show cause notice of the same date.
UMNSW's second complaint is that it was not informed of the charge that UMNSW continued to retain non-AFIC members as members of UMNSW. Again, the complaint has no merit. UMNSW was clearly informed of that charge by letters sent from AFIC dated 14 January 2022 and 11 February 2022. In the latter letter, the Secretary of AFIC stated that "it is AFIC's understanding that the following nine members of UMNSW referred to in paragraph [76] of the Court of Appeal's decision who were not members of AFIC currently remain members of UMNSW", before listing nine associations.
It is true that by letter dated 28 January 2022, UMNSW had sought "the facts, matters and circumstances" relied upon in support of the complaints raised in the 14 January letter. To some extent those were provided by the 11 February letter, which then led to a fairly detailed response from UMNSW dated 25 February 2022. It is not for me to engage in the merits of the arguments. The relevant point is that the core allegation about continuing to retain non-AFIC members as members of UMNSW had been notified in advance.
The third complaint has more substance. In its expulsion letter of 11 March 2022, the Exco gave three "grounds for the expulsion". The first was the failure to admit three societies as members of UMNSW. The second was the continued membership in UMNSW of the nine named societies which were not members of AFIC. Both of these points had been clearly raised in the letters of 14 January 2022 and 11 February 2022. The third ground, however, was expressed in this way: "The failure of UMNSW to provide a commitment to AFIC to; (i) admit to membership of UMNSW all NSW based AFIC member societies who seek membership of UMNSW; and (ii) exclude non-AFIC member societies from membership of UMNSW."
In its letter of 14 January 2022, AFIC had stated as follows: "Given the history of non-compliance, AFIC requires an undertaking from UMNSW that it will cease and desist from allowing non-AFIC members participation and voting rights in AFIC affairs and that it will allow recognised NSW AFIC members membership rights to UMNSW by 28 January 2021. Should an undertaking not be provided, we will seek advice on pursuing appropriate action."
The point made in the third ground about not providing a commitment about admitting NSW-based AFIC members to membership of UMNSW had been raised by the 14 January 2022 letter. However, the other part of the ground is expressed more broadly. Whereas the 14 January letter sought a commitment that UMNSW will "desist from allowing non-AFIC members participation and voting rights in AFIC affairs" - a commitment which potentially could have been given without completely excluding non-AFIC members from participation in and membership of UMNSW - the expulsion ground was about excluding non-AFIC members societies from membership of UMNSW altogether. The 11 February 2022 letter also had not foreshadowed this broader concern.
This is not a distinction without a difference. For example, Dr Jneid, the President of AFIC, was cross-examined about the position he had taken with respect to the ICQ, which also had member societies which were not members of AFIC. He accepted that "there has never been any requirement from you, as president, or any member of the AFIC executive committee to require ICQ to expel the non-AFIC member societies" (Tcpt, 7 June 2022, p 150(32-36)). But he sought to justify this by saying "[t]hey only allowed AFIC members to participate in AFIC affairs" (Tcpt, 7 June 2022, p 151(10-11)).
In the result, one ground of the Exco's decision had not been notified in advance to UMNSW, such that it could have a chance to consider its position and respond. In the circumstances, I find that the Exco's decision to expel UMNSW was not taken in accordance with the requirements of procedural fairness.
However, that conclusion does not necessarily mean that the ultimate expulsion decision was invalid. As noted above, under rules 33-34 of the Model Rules if an appeal against an expulsion is instituted then the expulsion does not take effect until the conclusion of the SGM convened to hear the appeal (and only then if there is a vote in favour of expulsion). Pursuant to rule 34(3), the committee may place before the meeting any details of the grounds and reasons for the expulsion, and the expelled member "is to be given an opportunity to be heard". There is thus an express manifestation of a right to be heard.
In administrative law it has been recognised that where there is a multi-step decision-making process the question is whether "the decision-making process, viewed in its entirety, entails procedural fairness": South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 at 389 per Mason CJ. Where there is a right of appeal this may "cure" any breach of procedural at the first decision-making stage if the appellate body reconsiders the matter afresh after affording the affected person a proper opportunity to be heard: see eg Ridge v Baldwin [1964] AC 40 at 79 per Lord Reid; Twist v Randwick City Council (1976) 136 CLR 106; [1976] HCA 58 at 115-116 per Mason J. Some judicial officers have preferred to see this principle as founded upon issues of discretion: see eg Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 at [55] per Spigelman CJ, [154]-[164] per Fitzgerald JA; Rose v Boxing NSW Inc [2007] NSWSC 20 at [89] per Brereton J.
Another, perhaps overlapping, way of understanding the issue is that the second decision may simply replace the infected decision with a valid one: note Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167 at 181 per Brennan J. The first decision might be said to have been superseded: note Calvin v Carr [1980] AC 574 at 592E (PC). For that to have occurred, it is necessary that the second decision is self-supporting, and is not dependent on the first: cf Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212; [2021] HCA 2 at [49] per Kiefel CJ, Bell, Gageler and Keane JJ. It is also necessary that the rule in question does not give the person in question a right to a fair hearing at both stages in the sense that any breach at any stage will require the procedure to start again: note Calvin v Carr at 592-593.
I do not need to address this debate further here, save to note that where a second decision overtakes the first, then the ultimate issue is whether or not the operative decision is infected with a breach of procedural fairness.
As regards voluntary associations, AFIC relied upon Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601; [1948] HCA 35, in which a majority of the High Court held that an executive council decision to expel certain members from a trade union was infected by a breach of natural justice, because one committee member took part both as prosecutor and decision-maker. Nevertheless, those affected had appealed (unsuccessfully) to the annual convention of the union. On that basis, the expulsion decisions were not overturned. As Dixon J stated at 631‑2: "By so appealing they treated the expulsion, not as regular, but as having an operation under the rules and as proceedings to be reviewed, and, if the convention thought fit, corrected by the convention. The convention had complete authority over the whole question of expulsion, and it was for it to decide whether the findings and the dismissals from membership should be set aside, varied or confirmed. The convention confirmed them. It may be true that the convention gave them less consideration than might be thought proper. It may be true that the convention treated the dismissal of the appeals as almost a foregone conclusion. But it is the supreme authority in the union and if a supreme authority is chosen as a domestic tribunal, particularly when it is a deliberative assembly, it may be expected to act upon views formed by the knowledge the members possess of the affairs of the body. I think that under the rules the decision of the convention gave a fresh authority to the dismissals and they no longer depended upon the resolutions of the Executive Council. No ground has been shown for treating the convention's decision as void or for invalidating it. I think, therefore, that the six respondents who appealed to the convention are no longer in a position to complain that the decision of the Executive Council was not given in accordance with the principles of natural justice."
Dixon J spoke of the convention having "complete authority over the whole question of expulsion". Later cases have emphasised that for this principle to apply, the appeal hearing must involve a full re-hearing, where the appellant does not have to establish error and has the ability to be heard, and where the appeal body has full power to substitute its own view: see eg Burning Palms at [154]; Rose v Boxing NSW at [89]; note also Ridge v Baldwin at 79.
Pursuant to rule 34 of the Model Rules, there is to be an SGM at which no business other than the expulsion is to be transacted; the committee may place before the meeting details of the grounds of and reasons for the expulsion; the expelled member is to be given an opportunity to be heard; and the members present are to vote by secret ballot "whether the expulsion should be lifted or confirmed". There is no presumption that the committee's decision is correct, nor any need to show error. There is, rather, a new hearing, and the general meeting is to reach its own view. At a level of principle, this procedure is sufficient to "cure" or render obsolete any breach of procedural fairness in the committee decision (in whatever way that principle is understood). The operative decision after an appeal is that of the SGM, not that of the Exco. Campbell J reached the same conclusion with respect to similar rules in Burning Palms at [152]-[157].
UMNSW submits that there can be no appeal instituted from a decision infected by a breach of procedural fairness, because the rules at issue here do not permit such a decision to be the subject of an appeal. In support of this proposition it cited Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [8] per Gleeson CJ, saying "[t]he question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen". That was a case where an administrative tribunal reconsidered its own decision. It was not a case of an appeal.
A better public law analogy is with the proposition that the Administrative Appeals Tribunal can review decisions which may be affected by jurisdictional error. The relevant statutory reference to reviewing a "decision" is taken to be a reference to a decision taken in fact, whether or not the decision was effective in law: Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167 at 180 per Brennan J; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 313-317 per Bowen CJ, 331-340 per Smithers J. Were it otherwise, it "would remove from review those decisions most in need of review": (1979) 24 ALR 307 at 335 per Smithers J.
Here, similarly, it would be contrary to the interests of aggrieved members to require them to take court action to pursue a claim that they had been deprived of procedural fairness, rather than taking the matter up internally by way of the appeal process. There is no good reason, nor any textual necessity, for construing the Model Rules in such a way as to prevent such decisions being the subject of appeals. The reference in rule 34(1) to an "appeal against an expulsion under rule 33" can readily include an expulsion decision in fact, regardless of whether or not that decision is legally valid. That is how I construe it.
Relatedly, I do not consider that the Model Rules should be construed as giving an aggrieved member the right to a fair hearing at both stages to such a degree that a failure at the executive committee stage cannot be overcome by an appeal hearing. Such a construction would undermine the utility of the provision for appeals. Of course, ultimately in any complaint of lack of procedural fairness it is appropriate to take account of all of the circumstances.
The question then is whether or not procedural fairness was provided at the SGM held on 23 April 2002 at which UMNSW was expelled. It was. The relevant facts are as follows: 1. UMNSW's notice of appeal is dated 25 March 2022, following the expulsion decision of 11 March 2022. AFIC led evidence indicating that this notice of appeal was in fact not received by it until 8 April 2022, having apparently been posted on 1 April 2022. However, the Exco chose to proceed with an appeal even though it regarded it as being out of time. In that context, nothing turns on this. 2. AFIC sent out a "notice of special general meeting" on the evening of 9 April 2022, for a meeting to be held 14 days later on 23 April 2022. I note that an argument might have been available to UMNSW that less than 14 days notice was provided, as ICV argues in relation to the SGM called with respect to its expulsion. However, UMNSW has not raised that argument, perhaps because of its own lateness in filing its appeal. Again, thus, nothing turns on this issue of timing. 3. Included within AFIC's notice of the SGM was a two page document signed by the Public Officer of AFIC which noted the expulsion decision taken by the Exco on 11 March 2022, then stated "[t]he conduct detrimental to the interests of AFIC goes back at least two years and in particular the Committee considered the following conduct to be grounds for expulsion". The three grounds listed in the expulsion notification of 11 March 2022 were then repeated, save that the particular societies said to have been wrongly retained in and wrongly denied membership of UMNSW were not listed. The ground the subject of my procedural fairness finding above - relating to UMNSW failing to provide a commitment to "exclude non-AFIC member societies from membership of UMNSW" - was repeated. The notice went on to state that the Committee may place before the meeting its grounds and reasons for expulsion, "UMNSW will be given an opportunity to be heard", and the members present would then vote by secret ballot "on the question of whether the expulsion should be lifted or confirmed". 4. UMNSW sent a letter to AFIC dated 21 April 2022 in which it stated that the Exco's decision to expel UMNSW from AFIC was invalid as: there was no power to remove a State Council based on the matters alleged; UMNSW had been denied procedural fairness; the decision was made for an improper purpose and without proper justification; and the Exco had not been properly constituted when it met on 11 March 2022. The letter went on to say that "[w]ithout prejudice to any of its rights … UMNSW will attend the meeting". Some further information was sought. A one page written submission was enclosed with a request that it be issued to all member societies. That submission addressed the claims that UMNSW had failed to admit three AFIC members societies, and that it had member societies not members of AFIC. There was also discussion of the Court of Appeal's decision, amongst other matters. 5. An issue then arose in correspondence as to whether UMNSW's Vice-President, Mr Elcheikh, could attend the SGM along with its President, Mr Elrayes. In the end, Mr Elcheikh was allowed to attend but not vote (though he did in fact, accidentally, vote). Nothing turns on this. 6. The SGM on 23 April 2022 commenced shortly after 11am, and ran for about three hours. The evidence suggests that it was, at times, rather lively. However, in cross-examination Mr Elrayes accepted the following: 1. He and UMNSW's committee had discussed the 9 April 2022 notification from AFIC, and how to respond to it (Tcpt, 6 June 2022, p 30). 2. UMNSW's one page submission was circulated to AFIC member societies, as it had requested (Tcpt, 6 June 2022, p 30). 3. He had said to the SGM words to the effect that there was no problem if UMNSW had members who do not seek to join AFIC (Tcpt, 6 June 2022, p 37-9). 4. He addressed the meeting in defence of UMNSW's position. Mr Trad, the CEO of AFIC, responded to him. He then had a chance to speak in reply to Mr Trad. In both of these opportunities he was listened to quietly by the SGM, and he "spoke for as long as [he] liked putting every proposition that [he] could think of to support the case against expulsion that was being mounted by UMNSW" (Tcpt, 6 June 2022, p 40-1). 1. A secret ballot was held, overseen by a representative of AFIC's auditor as returning officer. The result was 60 votes in favour of expulsion, 10 against, and there were two blank ballots. Dr Jneid's evidence (unchallenged on this point) was that there were 71 member society representatives there. There were 72 votes cast because, as noted, Mr Elcheikh had voted. Mr Elcheikh accepted that he had done so without thought and that, given the terms under which the SGM was being conducted, he should not have done so. As AFIC submits, thus, there was a very clear majority of representatives present in favour of expulsion of UMNSW.
The facts just outlined show that UMNSW knew the case it had to answer at the SGM and had a fulsome opportunity to present its position in response, which it took up. In those circumstances, the breach of procedural fairness that I identified above was rendered obsolete, or "cured", by the fact that it was overtaken by a new decision which was not afflicted by such a breach. Viewing the course of conduct as a whole, procedural fairness was provided to UMNSW in relation to its expulsion.
I have addressed this issue on the premise - contrary to my conclusion above - that the SGM constituted in the way that it was met the requirements of rule 34 read together with the AFIC Constitution. On the view I have reached above, the issue of procedural fairness would not alter or add anything to my conclusion that UMNSW is still a member of AFIC.

[14]

Issue (4): The short notice given in relation to ICV's appeal

ICV complained of a failure by AFIC to give the required 14 days notice of the SGM to its members. This complaint was labelled a breach of procedural fairness. It might more accurately be called a procedural irregularity.
The relevant facts are as follows: 1. AFIC's Exco resolved on 11 March 2022 to expel ICV, and this was communicated to it by letter of the same day. 2. ICV, through its solicitors, sent a notice of appeal to AFIC dated 25 March 2022. This was sent by email. 3. Mr Trad sent a notice of an SGM to AFIC's members by email sent at 1:47am on Sunday 27 March 2022. The meeting was to be held at 11.10am on Saturday 9 April, which was in 13 days 9 hours and 23 minutes time. 4. The solicitors of ICV wrote to AFIC by letter dated 5 April 2022 asserting that the notice of the SGM was a "nullity" because of a failure to provide 14 days notice, as required by the AFIC Constitution. 5. ICV chose not to send a representative to attend the SGM. Its written submissions were read out to the meeting by Mr Trad. 6. At the SGM 66 ballot papers were distributed. There were 60 votes in favour of expulsion, one against, one informal, and four not returned.
AFIC has not disputed that less than 14 days' notice of the SGM was provided to members.
Model rule 34(2)(a) provides that an SGM is to be held within 21 days after the date on which the requisition for an appeal hearing is received. The source of the 14 day notice requirement invoked by ICV is cl 37(1) of the AFIC Constitution, which requires "two (2) week's notice" of the place, date and hour of special meetings of Federal Congress to be "forwarded" to those entitled to vote and to members. AFIC, of course, disputes that the SGM was required to be a meeting of Federal Congress. However, even so, rule 13 of the Model Rules requires that the public officer of the association, "at least 14 days before the date fixed for holding a general meeting", is to cause to be inserted into at least one Tasmanian newspaper an advertisement specifying the place, day, time of meeting and the nature of the business to be transacted. None of the parties has addressed the requirements of this rule, I infer because in the lead-up to the hearing they had all been proceeding on the erroneous basis that the current version of the Model Rules applied. As I have noted, no issue has been raised about any failure to comply with the advertising requirement.
In any event, AFIC did not dispute that some 14 day notification requirement applied to it. I am content to proceed on that basis. AFIC's defence was that the Court would not uphold the objection and would decline relief in its discretion because: 1. the breach was de minimis, and there is no evidence that the processes of the SGM were affected by the delay; 2. the matter of the delay "was raised at the commencement of the general meeting and the requirement for a full 14 day notice period was unanimously waived".
I do not accept these arguments. It is true that there was only slightly less than 14 days notice provided to member societies. However, as AFIC accepted in its written closing submissions, "procedural requirements of disciplinary processes will usually be strictly enforced". ICV invoked the following passage dealing with the strict compliance required in such circumstances from the judgment of Callaway JA, with the agreement of Ormiston JA, in Hanlon v Brookes (1997) 15 ACLC 1626 at 1631: "if a 70 per cent majority is required, a 69 per cent majority will not do; that, if 14 days' notice in writing is required, 13 days' notice in writing or 15 days' oral notice is insufficient; and that the requirements are usually mandatory in character and not directory. The last point does not entail that they cannot be waived, nor is waiver excluded by the possibility that seven days' notice may have provided a "cooling off" period. It means that a purported expulsion without compliance or waiver is invalid."
Similarly, in Burning Palms at [74] Campbell J stated that a "power to expel from an incorporated club is one where the procedures laid down by the club's constituent documents must be strictly complied with, if the expulsion is to be valid". And in MCNSW v AFIC 2009 at [32] Bergin CJ in Eq said that "there should be strict compliance with procedural requirements where there is a prospect of expulsion. Such a serious consequence requires procedural regularity".
In this legal context, I do not accept that in the exercise of the Court's discretion to grant relief a "near enough is good enough" approach should be adopted. Such an approach would undermine the requirement for strict compliance expressed so forcefully in previous cases.
As for the claim of waiver, the minutes of the SGM record as follows near the beginning of the meeting: "The CEO explained that the fact that the notices went out 1 hour and forty-eight minutes late on Sunday, 27 March 2022 being 1.47am and should have gone out before midnight on 26 March 2022. The meeting was asked by the President if anyone objected to the meeting proceeding despite the immaterial irregularity. No objection was raised to the meeting going ahead."
A formal resolution that "the meeting and the appeal proceed today despite the fact that the notices went out 1 hour and forty-eight minutes late on Sunday, 27 March 2002" was then proposed and passed "by a unanimous show of hands". As I have noted, ICV had chosen not to attend the meeting. Its written submissions were read out to the meeting, but this occurred after the resolution was passed.
Even leaving aside the fact that the shortness was greater than 1 hour and 48 minutes, this course of events does not constitute a waiver of the irregularity. ICV did not waive the requirement for strict compliance. I do not regard the provision of written submissions by ICV under protest as constituting a waiver. Nor, self-evidently, did any other member societies of AFIC who were not present at the meeting waive the requirement. Those members may have been affected by the short notice and may not have attended as a result.
I thus conclude that insufficient notice of the SGM was provided to member societies, that the expulsion decision made at that meeting was invalid as a result, and I would not exercise my discretion to decline relief on this basis. This conclusion provides a further basis for concluding that ICV remains a member of AFIC and that relief accordingly should be provided.

[15]

Issue (1): Was the Executive Committee properly constituted?

The Exco is constituted by nine persons and a quorum is constituted by five members, pursuant to cll 17 and 45(3) of the AFIC Constitution. On 5 and 6 April 2021 two members of the Executive Committee resigned. This brought the total number down to four as at 6 April 2021. The ASIC historical record states that a fifth member, Ms Siddiga Adam, was appointed on 3 April 2021. There is a dispute as to whether or not that appointment was validly made.
The plaintiffs submit that the original expulsion decisions of the Exco were invalid because the committee was not quorate when the decisions were taken on 11 March 2022. The minutes of the Exco meeting on 11 March 2022 record that five members were present (with Mr Trad, as CEO, also in attendance). One of those members was Ms Adam. If she was not properly included in the Exco, then there were only four members of the Exco present, and the quorum requirement was not satisfied. The plaintiffs submit that Ms Adam had not validly been appointed a member of the Exco and that, as a result, both the original expulsions decisions and all that flowed from them are invalid (including the decisions of the SGMs confirming the expulsions).
Much turns on who had the power to appoint relevant members of the Exco, and what occurred in that regard. In particular, the following issues arise: 1. Did the President of AFIC, Dr Jneid, have power to appoint Ms Adam as a further member of Exco, as he purported to do in April 2021? AFIC submits that he did have such power. I conclude he did not. 2. If not, was his decision effectively ratified by Federal Council? I conclude that it was not. 3. If not, what is the consequence? Specifically, would that mean that the decisions of the SGMs are invalid, and/or should relief in relation to this issue be refused in the Court's discretion taking account of the circumstances? I conclude that the decisions of the SGMs are invalid, and I do not consider that I should refuse relief in my discretion.

[16]

Can the AFIC President appoint members to the Executive Committee?

Clauses 17, 20(1)(f) and 33(1) of the AFIC Constitution relevantly provide as follows: "17. Executive Committee The Executive Committee of the Federation shall be comprised of the following members. (a) President of the AFIC elected by the Federal Congress. (b) Vice President of the AFIC elected by the Federal Congress. (c) Secretary to be elected by the Federal Congress. (d) Treasurer to be elected by the Federal Congress. (e) Assistant Secretary to be appointed by the elected President. (f) Assistant Treasurer to be appointed by the elected President (g) Three Executive members appointed by the Federal Congress, on the recommendation of the President. 20. Responsibilities and Duties of the President of AFIC (1) The President shall - … (f) Have the power to appoint the Assistant Secretary and Assistant Treasurer of the Federation, who shall be members of the Executive Committee and to remove any of the appointed members with the concurrence of at least 5 other members of the Executive Committee. 33. Appointments (1) The elected President at the bi-annual meetings of the Federal Congress in which elections are held shall, in consultation with the Vice President, Secretary and Treasurer make and declare the appointments of the following office bearers: Assistant Secretary Assistant Treasurer (2) The Federal Congress shall also appoint, upon the President's recommendation, three members of the Executive Committee during it bi- annual meeting at which elections are held. (3) The office bearers appointed under this section shall hold office for a period of two (2) years and until newly appointed office bearers are installed in those offices as provided by this Constitution..."
There is a degree of overlap in these clauses. Each makes reference to the President's ability to appoint the Assistant Secretary and Assistant Treasurer of the Federation. Clause 33(1) refers to those appointments being made "at the bi-annual meetings of the Federal Congress". I note that this phrase could possibly be read as simply identifying that the relevant President is the newly elected one. But that would have been evident in any event, and no such similar qualification is used in referring to the appointments being made "in consultation with the Vice President, Secretary and Treasurer". Further, the clause is expressed as a power and a duty to be exercised in a particular way: the President "shall … make and declare the appointments". The declaration is to be made at the bi-annual meetings. The reference thus is best understood as introducing a temporal requirement.
Clauses 17(e)-(f) and 20(1) are not expressly qualified in that way. Nevertheless, in my view the President's power is limited to making such appointments at the bi-annual meetings, consistently with cl 33. Clause 33(1) is more specific in its content than the other two provisions. It is a grant of power on conditional terms. In contrast, cl 17 is simply describing the composition of the Exco. Clause 20(1)(f) is a general grant of power, which can sensibly and coherently be read together with cl 33(1).
That reading is consistent with the placement and description of the clauses. Clause 33 is entitled "Appointments", and is found in Part V of the AFIC Constitution, which is headed "Election and Appointments". That Part is naturally read as containing the clauses controlling appointments. Clauses 17(e)-(f) and 20(1) are found in Part IV of the AFIC Constitution, which is headed "Policy Making Government and Administration".
This construction also gains support from cl 28 of the AFIC Constitution, which relevantly provides as follows: "28. Vacation of Office by Office-bearers (1) The office bearers elected or appointed under the Constitution shall remain in office until: … (b) They have ceased to be such office bearers by reason of death, resignation or expulsion as provided by this Constitution. … (2) In the event of a casual vacancy occurring in any office of the Federation, the Federal Council may fill the vacancy by the appointment of an eligible person upon the Executive Committee's recommendation; and the person so appointed shall, subject to the provisions of subsection (1), hold office for the remainder of the three [sic] year term of that office."
Clause 28, by its terms, addresses all situations where an office-bearer vacates office. It encompasses a casual vacancy in "any office of the Federation". It provides one mechanism for filling casual vacancies, namely by decision of the Federal Council. No specific provision is made for filling the positions of Assistant Secretary or Treasurer.
I accept that it would be open to read all of these provisions in a way that meant cl 20(1)(f) gave the President an ongoing power to fill the positions of Assistant Secretary or Treasurer, including in the event of casual vacancies. However, to me the more coherent reading, taking account of the text and structure of the Constitution, is that the President's power is limited to one being exercised at the Federal Congress, and otherwise the general casual vacancy provision applies.

[17]

The purported appointment of Ms Adam to the Executive Committee

As noted, there had been two resignations from the Exco on 5-6 April 2021, which created a potential problem with quorum. The Assistant Secretary, Mr Ates, and the Vice President, Mr El-kholed, were appointed/elected to these roles at the AFIC bi-annual Congress meeting on 7 May 2017. They resigned from the Committee on 5 and 6 April 2021 respectively. At the time of their resignation, Mr Rifai was, and continues to be, the Assistant Treasurer of the Committee. Mr Ates gave undisputed evidence that he continued to be Assistant Secretary up until his resignation on 5 April 2021.
Ms Adam was not appointed at a bi-annual meeting of the Federal Congress, thus, pursuant to my construction set out above, cll 17, 20 and 33 cannot be relied upon to validate her appointment. Put simply, the President did not have power in his own right to appoint her in April 2021.
Clause 28(2) was enlivened with the resignation of two AFIC Executive Committee members in early April 2021. It empowered the Federal Council to fill the vacancies created, upon the Exco's recommendation. The Exco had a role to play, but it was a decision for the Federal Council.
The primary argument of AFIC is that Dr Jneid was entitled to appoint Ms Adam in his own right, and that is what he did. However, AFIC also argues that in any event the appointment of Ms Adam was effectively made or ratified by a kind of circulating resolution of the Federal Council.
Ms Adam had seemingly first been mentioned as a possible "additional member[] to the EXCO" at a meeting of the Exco on 2 February 2021. The minutes record Dr Jneid as saying "I move to put her name. I will need to talk to her first and make sure that she is suitable". The Secretary agreed, and the minutes recorded "Motion carried", although it is not quite clear what the motion was. It was not put to me that this constituted an appointment of Ms Adam. It was, in any event, not a meeting of the Federal Council. Mr Ates disputed the accuracy of this minute, but it is not necessary to resolve that dispute as nothing turns on it.
Dr Jneid said in his affidavit of 8 April 2022: "[43] On 2 February 2021, the AFIC executive committee met and discussed the appointment of new office bearers to fill vacant positions. Ms Siddiga Adams was discussed as a potential appointee. … [44] Following that meeting, I spoke with Ms Adam by phone and invited her to accept an appointment to the executive committee as assistance secretary. Ms Adam accepted, and so I appointed her with effect from 3 April 2021."
His affidavit then referred to an ASIC transcript which shows that Ms Adam was appointed as an officer of AFIC with effect from 3 April 2021. Also in evidence was a form sent to ASIC, signed by Dr Jneid and dated 14 April 2021, which notified ASIC that Ms Adam had been appointed a "director", with the "date of change" given as 3 April 2021.
It is apparent that in Dr Jneid's mind it was he who appointed Ms Adam, and that he did so on 3 April 2021 having spoken to her after the February meeting of the Exco. His evidence in cross-examination reflected this position; for example (Tcpt, 7 June 2022, p 166): "Q. There was no appointment of Ms Adam on or prior to the date of April, correct? A. I can't - I can't remember what happened exactly, but, you know, I - I did, I remember - I - in - on - in - in February, we discussed this issue, and I said - because I - I was honest with the executive committee, I told them, I'm not going to appoint her right now. Everyone was happy for her appointment, I said no, because I wanted her to be - I wanted to go and talk to her before I appoint her as - as member of the executive committee. So I called her, I discussed with her, I spoke to her, and I was happy with her performance, experience, all this. Then I said to Siddiga, I - I called and, you know, I said, yes, no problem, I will - I'm very happy to appoint you as one of the executive committee. Q. As at 8 April, you were still putting her name forward to nominate on the executive committee? A. I - I did - I did before. From - from my memory, I did appoint her before the time of 8 February. I put it for the council - look, to be honest, I can't remember the whole process, what - you know, but I remember I did. I was honest with my executive committee, they - you know, they brought it to put her name, I said, no, I don't know her, I will not put her in the executive committee before I talk to her. So I went and I talked to her in the - you know, as soon as - you know, in a short period of time, and I was happy with her performance. That's all what - what I remember, and I remember I appoint her on - I told her, you know, I'm happy to - to be part of our executive committee."
Consistently with that evidence, the minutes of a Federal Council meeting held electronically on 17 July 2021 record Dr Jneid as saying "[i]t is unfortunate that we had some resignations since our last meeting. I have exercised my powers under clauses 17(e) and (f) and 20(1)(f) of the AFIC Constitution to appoint two sisters to our committee".
Further support for the clear understanding and intention of Dr Jneid in this regard is to be found in the minutes of the SGM held on 23 April 2022 to consider the expulsion of UMNSW. The issue of whether the Exco had been quorate when it made its expulsion decision was raised. Notably, the minutes record as follows: "When was Siddiga [Adam] appointed? The CEO said that when the three new members were agreed on by the committee, he contacted all three and asked for their qualifications, the two women gave their qualifications but Abdul Neeman refused … The CEO said: … It was around this time that UMNSW had taken AFIC to court and sought a commitment from AFIC not to hold any Federal Council meetings. So the president appointed the two women using his power under clause 20(f) and could not appoint Abdul, because your appointment would have required Federal Council approval. In any case, Abdul could not be appointed if he is refusing to give information about his qualifications. The President said that this topic had been discussed enough and that the meeting was not about this issue. What was said was not correct and is not part of the meeting. There was a quorum. He would check the minutes and then let the delegates know. He asserted the ladies were appointed before Jamal resigned but Jamal denied knowing anything about the ladies. Further heated, lengthy discussion regarding previous minutes and the appointment of 2 ladies."
Despite Dr Jneid's evidence, in closing submissions AFIC sought to argue that in any event the decision "should be taken to have been remedied, ratified, or in fact, the vote itself is that of the Federal Council" (Tcpt, 8 June 2022, p 260). It relied on some emails put into evidence by the plaintiffs in this regard. It suggested this email exchange was, in effect, a circulating resolution of the Federal Council.
In an email sent on 8 April 2021 at 11:43am by Dr Jneid to Mr Habib Jamal (only) - the then President of ICQ, the State Council for Queensland - the following was said: "Salam Brother Habib, Dear Federal Council, Under the AFIC constitution, I have decided to nominate the following individuals to join the AFIC executive committee: [certain details were then given of Ms Adam and another nominee, Ms Nebhan] Please email me your views as a matter of great urgency."
The nomination of Ms Nebhan was ultimately not pursued for reasons which are not apparent.
On 8 April 2021, at 12:13pm, Mr Jamal responded "Ok by me".
In an email sent at 1:20am on 9 April 2021, sent to State Council presidents and some others, Dr Jneid stated as follows: "Dear Council presidents Firstly, I would like to thank the Council Presidents who promptly responded. To this moment, we have 7 votes in favour of the new appointments. Therefore, by majority vote, I'm please [sic] to inform you that, Sr Siddiga Adam from South Australia And Sr Rouqayya Nebhan from New South Wales Have both been appointed to the executive committee of AFIC."
In an email of 10 April 2021 Mr Jamal stated that he had had a discussion with Mr El-kholed, that he considered the appointments "were made whilst the Afic Exco did not have a quorum", that he thus believed the appointments were "not valid", and he withdrew his support for them. Nothing turns on this.
AFIC tendered a letter dated 8 April 2021 from Dr Jneid to Ms Adam, which stated that "I am pleased to inform you that your nomination to become a member of the executive committee of AFIC has been approved with immediate effect". There is no evidence before me of when this letter was sent - in particular, whether it was sent before or after responses had been received from a majority of those to whom it was sent at 11:43am on 8 April 2021, taking account of the fact that Dr Jneid's email - reporting "[t]o this moment, we have 7 votes in favour" - was sent early on the morning of 9 April 2021.
I am not persuaded that what occurred constituted a decision by, or ratification of, the Federal Council such as to fall within cl 28(2) of the AFIC Constitution.
The evidentiary foundation for the claim is thin, with a handful of emails put in by the plaintiffs. No evidence was presented showing that all of the members of Federal Council were emailed in the same terms as were sent to Mr Jamal, nor were their responses in evidence. That being said, it was not put to Dr Jneid that his statement in the email of 9 April 2021 that "we have 7 votes in favour of the new appointments" was false. So I am prepared to accept that similar emails were sent to other members of the Federal Council as were sent to Mr Jamal.
As addressed above, under cl 28(2) of the AFIC Constitution the decision is to be that of the Federal Council.
The course of events outlined above supports Dr Jneid's own view of things, that is, that he made the appointment himself, and he did so on or about 3 April 2021. At most, what he did was engage in a consultation process, doing so subsequently to having made his own decision, and in what he regarded as a conclusion of what had been resolved at the Exco meeting of 2 February 2021. His 8 April email sought "your views". He did not indicate that this was to be a vote, by way of circulating resolution, of the Federal Council. I am not suggesting that a high degree of formality is required for such a resolution. But at the least it needed to be made reasonably clear to all concerned that they were being asked jointly to exercise a power belonging to them as members of the Federal Council, as opposed to simply being engaged in a consultation process that the President was undertaking for his own purposes. That was not done.
I note that I have not addressed whether or not it is possible for the Federal Council to make such decisions by circulating resolutions. That might be open to question, taking account of the fact, for example, that cl 40 of the AFIC Constitution provides that Federal Council meetings "shall not be held more than four (4) times in a financial year". In any case, that clause reinforces my view that some degree of clarity and formality is required when the Federal Council is asked to exercise its decision-making powers.
There is a further, independent matter confirming my conclusion that what occurred was not a decision of the Federal Council, albeit a matter that neither side drew to my attention. In the context of the litigation in 2021 between UMNSW and AFIC, Black J made the following order on 8 March 2021 (these orders were placed in evidence before me): "3. Upon the Plaintiff by its Counsel giving the usual undertaking as to damages, the First Defendant [ie AFIC] be restrained from convening a meeting of the Federal Council prior to the Plaintiff's claims for substantive relief being determined."
His Honour delivered his primary judgment in the matter on 16 April 2021. On 26 April 2021 he delivered a judgment on orders, in which he stated in [2021] NSWSC 421 at [6]: "I note that order 3 made by the Court on 8 March 2021 now has no continued effect, since UMNSW's claims for substantive relief have been determined in its favour, and AFIC is now free to convene a meeting of the Federal Council in a manner consistent with the result of these proceedings and the declarations that are binding upon it."
Order 3 thus prevented AFIC from convening a Federal Council meeting in the period from 8 March 2021 to at least 16 April 2021 (and quite possibly 26 April 2021). Seeking to pass a resolution of the Federal Council, even by circulating an email, would have contravened this order. The order would have been well known to the leadership of AFIC at the time. Reflecting that fact, the order was referred to by Mr Trad in the minutes of the UMNSW SGM, as quoted above. These facts reinforce my conclusion that the email exchange on or around 8 April 2021 did not constitute a decision of the Federal Council.
For the reasons identified above, Ms Adam was not validly appointed to the Exco in early April 2021.
One further point should be made. If I am wrong about the proper construction of cll 17, 20 and 33, and the President did have power to appoint the Assistant Secretary and Assistant Treasurer in his own right, Ms Adam was still not appointed pursuant to these clauses. The position of Assistant Treasurer was filled at material times. The position of Assistant Secretary only became vacant upon the resignation of Mr Ates on 5 April 2021. Dr Jneid purported to appoint Ms Adam two days before that. The letter to Ms Adam dated 8 April 2021 also did not refer to her being appointed as Assistant Secretary. Rather, it referred to her being appointed as "a member of the executive committee". In these circumstances he cannot have been, and was not, exercising any power he had to appoint the Assistant Secretary and Assistant Treasurer.

[18]

The consequences of the Executive Committee being inquorate

There was no subsequent decision appointing Ms Adam, or anyone else, to the Exco prior to its meeting on 11 March 2022. The Exco was thus inquorate when it passed the two motions expelling the plaintiffs on that day. There is nothing in the AFIC Constitution to suggest that the Exco could make that type of decision despite not being constituted as required: note Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504 at 527-528 per Wells J.
There are no doubt some things that the Exco could do even though inquorate. Most notably, I consider that it could call a meeting of the Federal Council pursuant to cl 40 of the AFIC Constitution in order to seek to cure its own inquorate status. Were it otherwise, the administration of the association could become caught in a stalemate. Similarly, insofar as it has a role to play in organising the required bi-annual Federal Congress, it could fulfil that role (note cl 35(1) of the AFIC Constitution). But these fall within a limited type of exception founded on considerations of necessity. There is no reason to extend it to the type of decision at issue here. I therefore conclude that the decisions of the Exco to expel the plaintiffs were invalid.
The question then is whether the invalidity was "cured", or rendered obsolete, by reason of the special general meetings held on 9 and 23 April 2022. I note that I am again assuming here that the SGMs, as called, were the relevant bodies to determine the appeals.
The plaintiffs made two arguments on point, as follows: 1. The power to call the SGMs was a power of the Exco. If the Exco was not properly constituted, "it could not have transacted any valid business including the giving of notice and convening the meeting of member societies on 23 April 2022" (UMNSW closing written submissions at [11]). 2. The member societies "only voted to 'confirm' what was assumed to be a valid expulsion" (ibid at [12]).
I accept the first argument. Model Rule 34(2) provides that on receipt of an appeal notification requisitioning an SGM, "the public officer is to immediately notify the committee of its receipt", and "the committee is to cause a special general meeting of members to be held within 21 days after the date on which the requisition is received". This rule is mandatory and clear in its requirement, but still requires the committee to consider the appeal requisition and to decide upon and set a date for the meeting. There is no reason for considerations of necessity to apply here, given that the only necessity would be to hear an appeal from a decision which was invalidly made in the first place. This point also arises at a stage prior to any decision by the plaintiffs to participate in the SGMs.
I have concluded above that an appeal under rule 34 can operate even with respect to an expulsion decision that was invalid on the grounds of breach of procedural fairness. However, that point is not an answer to the plaintiffs' first argument here, which relates to the Exco's further role in calling an SGM.
I note for completeness that cl 35(2) of the AFIC Constitution provides that a special meeting of the Federal Congress "may be held at any time at a place as the Executive Committee may determine". Thus that requirement, too, requires action by the Exco. That requirement would also apply here based upon my conclusion above that the SGM provided for under the Model Rules should be a special meeting of the Federal Congress.
The second argument raises issues that overlap with the issue of procedural unfairness being "cured", or rendered obsolete, by a replacement decision. The defendant seeks to invoke that principle, citing the High Court's decision in Australian Workers' Union v Bowen [No. 2]. It is not necessary to resolve the argument here, given my finding on the first argument.
AFIC then argued that the Court should refuse relief if it finds that the Exco meeting was inquorate, saying the following in its closing written submissions: "[30] If, however, the Court finds that the Executive Committee meeting was inquorate by reason that Ms Adam's appointment was invalid, it should nevertheless refuse to grant the relief sought. The Court ought not entertain an action concerning issues of irregularities in internal management which are capable of resolution by a general meeting of members [citing Green v Page [1957] Tax SR 66, as applied in Dixon v Esperance Bay [2002] WASC 110 at [118]-[125]] and that reluctance ought apply even more strongly where there is no demonstrated link between the absence of quorum at the Committee meetings and the expulsion decisions of the general meetings. [31] The powers and functions of the Executive Committee are subject to the control and scrutiny of the Federal Congress [AFIC Constitution, cl 19]. So too does the Federal Congress have the power to remove any restrictions imposed upon any member or office-bearer of the Federation [AFIC Constitution, cl 13(m)]. [32] The passing of a resolution by the Executive Committee to expel an AFIC member is intra vires, and if irregular, capable of ratification at a meeting of Federal Congress. The special general meetings of members which were convened were constituted in substantially the same way as the Federal Congress, and each voted overwhelmingly in favour of confirming the expulsion of the plaintiffs. The Court should infer that if the relief sought were granted on this ground, the membership would be entitled to reconstitute and resolve to regularise the expulsion resolutions passed by the Executive Committee. Where the will of the members of the Federation is so clearly supportive of the actions of the Committee the Court would not intervene to uphold the Plaintiffs' applications to compel the Federation to reconstitute and reconsider the same subject matter."
In Green v King [1957] Tax SR 66 at 77, as quoted in Dixon v Esperance Bay [2002] WASC 110 at [122], Burbury CJ stated that in "the case of irregularities in procedure laid down by the rules of an organisation for convening meetings and in conducting meetings the court refuses to interfere at the instance of individual members of the organisation", saying that "[t]his is in accordance with the rule in Foss v Harbottle (1843) 2 Hare 461"; see also Popovic v Tanasijevic [2001] SASC 289 at [37] and [50] per Williams J, with whom Doyle CJ and Martin J agreed. Burbury CJ went on to state that "if the issue is one not of mere irregularity in internal management but of an ultra vires act then there is no room for the application of the rule in Foss v Harbottle and the court will pronounce upon the validity of the act".
The issue here is one of invalidity. Further, as addressed above in relation to the short notice point, strict compliance with procedural requirements is expected in relation to disciplinary or expulsion decisions.
Moreover, importantly, the references to the powers of the Federal Congress are not apposite where the SGMs were not constituted as meetings of that body. In my view the suggestion that they were nearly the same is not an adequate answer. It is true that the difference is not substantial, the key point being that State Councils have two delegates and votes at Federal Congress meetings. However, to my mind it is to enter the realm of speculation as to what would have occurred if the SGMs had been held and constituted as meetings of the Federal Congress. It may be that greater weight would have been given by members to what State Council representatives said. It may be that different members or delegates would have attended if the meeting was constituted as the highest authoritative body within AFIC. To my mind, there was a realistic possibility that the result could have been different. Drawing on an analogy with the notion of materiality in administrative law, I consider that that suffices to persuade me that I should not refuse relief in my discretion: cf MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
It is also worth noting what was said by Bergin CJ in Eq in MCNSW v AFIC 2009 at [26] in concluding that an original expulsion decision could not be taken by the Federal Congress, but had to be made by the Exco: "The wider constituency, being those delegates who are able to attend the Congress, have various and different obligations to those of the Executive Committee members who are charged with the obligation of managing and administering the business and affairs of the defendant. The affairs of the defendant include ensuring that its objects and purposes are achieved, the achievement of which is dependent in part upon the maintenance of the reputation and standing of the defendant. That reputation and standing is dependent upon its members acting in a manner that is not detrimental to the interests of the defendant. The delegates of the Congress have obligations both to the Congress and to their own members and constituent bodies, whereas the Executive Committee has the interests of the defendant as its paramount obligation."
Her Honour thus emphasised that the Exco has a distinct and important role in making the initial expulsion decision. That very role may be thought to mean that its decision will carry some weight with any subsequent meeting of members, whether through the Federal Congress or the type of SGMs actually held here. The cases I have referred to above establish that a failure by the Exco to provide procedural fairness may be overtaken by a subsequent appeal decision. However, given the important and distinct role that the Exco has to play in the process, I am not inclined to decline relief where it has been established that the committee was not properly constituted when making its initial decisions, then giving effect to those decisions by calling SGMs.
For completeness, I note that much the same issues arise in relation to issue (2) addressed above, relating to the appeal being heard by an SGM which was not constituted as the Federal Congress. For the reasons just given, I also do not accept AFIC's submission that relief should be refused on that issue as a matter of discretion.
It might be thought that there is some tension between my not exercising my discretion to refuse relief on issues (1), (2) and (4), whilst holding that any breach of procedural fairness and any improper purpose in the decisions of the Exco is overtaken by the decisions of the SGMs. However, there is a difference. In relation to the latter issues, whether or not there is any exercise of discretion involved (as has been suggested by some judicial officers), in substance what has occurred is that the decisions of the Exco have been rendered obsolete and/or "cured", such that there is no legal complaint made out. In contrast, on issues (1), (2) and (4) a legal complaint has been made out, and the question of whether or not to refuse relief is a purely discretionary one.
By way of summary on the inquorate issue, then: 1. Dr Jneid did not have authority to appoint Ms Adam to the Exco in April 2021, as he purported to do. The Federal Council did not appoint Ms Adam to the Exco. 2. The Exco was inquorate when it made the decisions to expel the plaintiffs on 11 March 2022. Those decisions were therefore invalid. 3. The decisions of the SGMs were also rendered invalid, as the meetings of the SGMs were not properly called. 4. That means the plaintiffs were not expelled from AFIC, and remain members. I do not accept that relief on this point should be refused as an exercise of the Court's discretion.
I note that the consequence of this finding reaches further than my conclusions on issues (2) and (4). Those conclusions mean that there has, as yet, been no valid appeal hearing on the expulsion decisions of the Exco. The conclusion I reach on this issue, issue (1), means that there has been no expulsion decision by the Exco and there is no basis on which to hold an appeal. Whilst I have construed Model Rule 34 as encompassing appeals from decisions in fact even if affected by procedural unfairness, I do not consider that that extends to a decision taken by an invalidly constituted Exco. Here what has occurred is that the body authorised to take the expulsion decisions has not done so. There have in fact been no expulsion decisions taken by the Exco. Rather, there have been expulsion decisions taken by a grouping purporting, incorrectly, to be the Exco. An appeal under rule 34 is not enlivened if there is no prior expulsion decision by the authorised decision-maker.

[19]

Issue (5): The claimed improper purpose

The plaintiffs allege that the expulsion decisions were taken for an improper and invalidating purpose, namely (as UMNSW put it) acting to "remove UMNSW as State Council and replace it with a body that would support the President of AFIC and the Executive Committee in elections for offices", or (as ICV put it) "to ensure that the President and members of the Executive Committee of AFIC retained control of the affairs of AFIC".
UMNSW submitted that the Court "should find that AFIC used the allegations concerning members … as a basis to target and effect the expulsion of UMNSW". ICV submitted that "the President of AFIC and his supporters, having had criticisms of impropriety made against him by the President of ICV (and the President of UMNSW) were determined to quell the opposition by expelling ICV and UMNSW". In substance, thus, both allege that the Exco expulsion decisions were taken for a purpose of removing critics of the AFIC leadership prior to the new elections for officeholders within AFIC.
I note in passing that the elections are long overdue. I understand that the last AFIC bi-annual Federal Congress meeting was held in May 2017. Covid-19 has been invoked in explanation of at least some of the delay, as I address below. Pursuant to cl 28(1) of the AFIC Constitution the officer-bearers remain in office until "newly elected or appointed officer bearers have taken charge or their duties as provided by this Constitution". Dr Jneid and the others elected in 2017 have thus been in office for some five years, well in excess of the term they should have served.
Between them, the plaintiffs made the following allegations which were said to establish that the decisions of the Exco were taken for an improper purpose: 1. AFIC's leadership had shown an intolerance of criticism - including by the former CEO, Mr Zraika, by the heads of State Councils, and by the plaintiffs in particular. A manifestation of that intolerance was said to be an ongoing failure to hold a Federal Council meeting from mid-2020 till 12 February 2022. That intolerance motivated attempts by Dr Jneid and his supporters to exclude the plaintiffs, the leaders of which had been prominent in their criticisms. 2. The Exco's attempts to set up a rival committee in order to exclude UMNSW - as overturned by Black J and the Court of Appeal in 2021 - manifest the same improper purpose of expunging critics. 3. Prior to AFIC's letter of 14 January 2022 to UMNSW, no previous concern had been raised with respect to the plaintiffs not admitting members of AFIC into membership of the plaintiffs. That concern was raised by AFIC with respect to some societies which had not yet even applied to the plaintiffs for membership. 4. AFIC acted inconsistently by seeking to give strict effect to its constitutional requirements as regards membership with respect to the plaintiffs, where it had not taken that approach in relation to other State Councils or other issues of membership.
AFIC does not dispute that the identified purpose would be an improper one which, if established, would invalidate the decisions. It submits, however, that the decisions of the Exco were not taken for that purpose and, even if they were, that would not invalidate the decisions of the SGMs.
My conclusion is that the decisions of the Exco were taken for the identified improper purpose, albeit only supported by some of the arguments of the plaintiffs, but that does not invalidate the decisions of the SGMs (working on the assumption, contrary to my conclusions above, that those decisions might be operative).
A great deal of evidence was said to be relevant, on either side of the argument, by the parties. Some of that evidence is peripheral. I will address the more significant evidence.

[20]

The claimed intolerance of criticism

Concerns were raised within AFIC about the decision by Dr Jneid that AFIC purchase a property in Perth, and about claimed conflicts of interest of Dr Jneid as regards decisions involving some of AFIC's member societies in Western Australia. This then precipitated a series of complaints by the heads of certain State Councils. These complaints underpin the plaintiffs' claim with respect to the AFIC leadership's intolerance of criticism.
At a Federal Council meeting on 4 April 2020 Dr Jneid advised that a purchase contract had been signed for the acquisition of a property at 17 Mercantile Way, Malaga, Perth (the Perth property). He advised that a deposit of $50,000 had already been paid and settlement was to take place in January 2021. This announcement caused some consternation.
The precise course of events thereafter is somewhat unclear, but soon afterwards representatives from at least four State Councils called for an emergency Federal Council meeting to be convened on 17 April 2020 to discuss the issue. On 13 April 2020 this request was rejected by the secretary of AFIC, Mr Abdullah, I infer at the direction of Dr Jneid. Dr Jneid had obtained legal advice suggesting that the calling of an emergency meeting would breach the AFIC Constitution, specifically its notice requirements. The next Federal Council meeting was said to be scheduled for 9 May of that year (it seems this was later scheduled to 10 May). An "informal" meeting of the Federal Council was organised on 17 April 2020 instead.
In an email dated 14 April 2020 Mr Hammoud, a member of the Exco at the time, expressed his concerns about the purchase of the Perth Property and about the failure to hold an emergency meeting. The email is polite but forceful. He said, amongst other things, the following: "The fact that the President was actively seeking legal advice to deny the Federal Council an emergency meeting is concerning. It raises significant questions as to the intent to deny a meeting. … I reiterate that no approval from the Exco for the purchase was granted. Not in the December meeting, nor at any point subsequent to the meeting in December. It has been requested in meetings and via email that information related to the process, terms, details of the purchase be provided to the Exco. Despite the numerous requests, we still have not received any report. There is absolutely no justification for the delay and I, as a member of the Exco, will not accept responsibility for the actions of those involved."
Mr Hammoud was subsequently purportedly removed from the Exco by Dr Jneid on 18 May 2020 (as was also noted in 2021 CA at [38]). This was supposedly done under cl 20(2)(f) of the AFIC Constitution, which relevantly would have required a decision of the President "with the concurrence of at least 5 other members of the Executive Committee". In the letter of removal Dr Jneid said "I have exercised my power under clause 20(f) [sic]", without referring to the concurrence of others. He also stated the following: "[A]fter months of unwarranted disruptions to our meetings, unnecessary disagreements and hostilities that seem to have spread beyond our committee, I was left with no choice but to have you removed so that AFIC can resume its duties in serving the community."
It is not necessary for me to determine the validity of the purported dismissal of Mr Hammoud. But the evidence is supportive of a conclusion that Dr Jneid does not take well to criticism, and was prepared to take steps to remove critics.
The unofficial Federal Council meeting proceeded on 17 April 2020. Minutes of the meeting indicate that the representatives of many of the State Councils expressed their dismay at the purchase of the Perth property. Importantly, those criticisms were not only made by representatives of UMNSW and ICV. For example, Mr Jamal, the then President of ICQ, expressed his qualms about the purchase of the Perth property. The minutes state the following: "Br Habib Jamal said that his comments were not personal, but this is about process. That he was taken back, and that previous discussions were about paying off all loans first."
It was suggested by various representatives that the purchase of the Perth property needed to be approved by the Federal Council, no such approval had been granted, and that the failure to observe proper process constituted a breach of the AFIC Constitution. It was suggested that a committee be established to investigate the allegations.
On 9 May 2020 at 8:53pm Mr Zraika, the then CEO of AFIC, circulated a document from the State Councils of Victoria, NSW, Queensland, Tasmania, South Australia, Northern Territory and Christmas Island. The document was created in preparation for the ordinary Federal Council meeting to be held the next day. The document records the following: 1. The relevant State Councils reiterated that the Federal Council had not explicitly or implicitly approved the purchase of the Perth property. It was alleged that this constituted a breach of cl 53(3) of the AFIC Constitution. The State Councils proposed that the contract to purchase the Perth property be rescinded. 2. Dr Jneid had claimed that the Federal Council had in fact approved the purchase, citing the minutes of a Federal Council meeting dated 13 October 2019 in support of his claim. The relevant State Councils disputed the accuracy of these minutes and called for them to be corrected. 3. The relevant State Councils called for the Exco to review all contracts, correspondence and documents related to the purchase. They called for the Exco to be able to undertake its duties "without fear or favour and without interference". The Exco was asked to provide a preliminary report on the purchase by 31 May 2020 and a final report by June 2020 to all members of the Federal Council. 4. The document also suggests that at the informal meeting on 17 April 2020 the Federal Council "made clear their disappointment that legal advice was sought to deny the FC a meeting", noting that there "have been many precedents of such emergency FC meetings called in the past even within 24 hours", and a number of examples were then given. (I note that I see no reason to doubt that evidence, nor that the criticism of inconsistency as regards holding emergency meetings had validity).
On 10 May 2020, by email sent at 11:27am, Dr Jneid purported to cancel the ordinary Federal Council meeting "due to a lack of Quorum". That was said to be because six members of the Exco, including Dr Jneid, "are sending apologies" on the basis that they needed time to consider the claims alleged in the document detailed above, including by obtaining legal advice. Although the document had only been sent the night before, it appears to me that this was a step taken in order to avoid, or at least postpone, critical scrutiny. It is likely that the sudden lack of quorum was instigated by Dr Jneid, who sent the purported cancellation email.
On 25 May 2020 Mr Mohideen, of ICV, wrote to the Secretary of AFIC expressing concerns about the conduct of the affairs of AFIC. In particular, Mr Mohideen complained that a "formal federal Council meeting has not been held for over 6 months despite many attempts by the State Council Presidents".
On 1 June 2020 at 10:55am Dr Jneid sent out a meeting invitation for an emergency Exco meeting to be held the next day at 7pm. The agenda included "[s]taff changes and potential dismissals".
On 2 June 2020 at 4.36pm Mr Zraika wrote to Dr Jneid. There are two copies of this email in evidence - one time-marked 4:36pm (tendered by ICV), one 6:36pm (tendered by UMNSW). I suspect the latter may have been received in Western Australia, and I conclude it was sent at 4:36pm Australian Eastern Standard Time. In the circumstances, I also infer that Mr Zraika knew by then that his position was in jeopardy.
In his correspondence, Mr Zraika raised complaints about the conduct of Dr Jneid in his capacity as President of AFIC. A copy of the correspondence was provided to all State Councils on the Federal Council of AFIC. The complaints related to inter alia the purchase of the Perth property and to claimed conflicts of interest involving Dr Jneid, as member societies were said to have received grants from AFIC where those societies listed Dr Jneid as public officer and had members of Dr Jneid's family in leadership positions.
On 2 June 2020 at or about 6.58pm Mr Mohideen, on behalf of the State Councils of Victoria, NSW, Queensland, Christmas Island, Tasmania, Northern Territory and South Australia emailed the AFIC Exco. He noted that they were "deeply concerned with the latest development and the letter sent by" Mr Zraika. The letter further "instruct[ed]" Dr Jneid and the Exco not to take any steps to remove or intimidate Mr Zraika in carrying out his duties.
Despite the letter from the State Councils, Mr Zraika's employment with AFIC was terminated on 2 June 2020. This was pursuant to the emergency Exco meeting of the same day at 7pm. Mr Keysar Trad, a former President of AFIC, was chosen to act as the new CEO.
It is unclear if Dr Jneid had seen Mr Zraika's or the State Councils' emails prior to the meeting. Regardless, I do not infer that the termination was because of the letter, given that the meeting had been called before it was sent. It is also not necessary or appropriate for me to venture a view on the reasons for or merits of the termination of Mr Zraika's employment.
On 6 June 2020 the head of the State Council for Tasmania sent an email circulating motions of no confidence in Dr Jneid and other members of the Exco. The email was sent on behalf of the State Councils for Victoria, NSW, Queensland, Christmas Island, Tasmania, the Northern Territory and South Australia. The email said that the motion was to be tabled and voted on at the Federal Council meeting on 28 June 2020.
A Federal Council meeting was held, via Zoom, on 28 June 2020. The minutes of the meeting reveal tensions between Dr Jneid on the one hand and Mr Mohideen (of ICV) and Mr Elcheikh (of UMNSW) on the other about various matters. Strangely, the meeting minutes do not address the motions of no confidence. For whatever reason, it seems that they were not pursued.
The minutes record that further discussion about the Perth property would be deferred until Mr Trad released an investigative report he was undertaking. The minutes also record that Dr Jneid was questioned about claimed conflicts of interest between himself and AFIC member societies in Western Australia, particularly International Humanitarian Aid Inc. Mr Elcheikh of UMNSW was prominent in his questioning in this regard.
On 24 July 2020 Mr Trad distributed a report into the purchase by AFIC of the Perth property. The report was prepared by a committee consisting of Mr Trad, Mr Jamal and Mr Ates (a member of the Exco at the time). The objectives and conclusions of the report were as follows: 1. Was the purchase subject to a Federal Council decision? "It is clear from the various meetings and discussions that the FC were not told about this specific property prior to purchase. [Emphasis in original] … However, the FC did know and did, as required by the AFIC Constitution, approve the expansion of AFIC through increased property holdings and did endorse the concept of having offices in every state. It is clear that the manner in which the Perth property was purchased is not ideal. The proper procedure is to present a recommendation to FC for approval. The FC has a distinguished role in AFIC and it should always be respected." [Footnotes omitted; emphasis in italics added] 1. Did the purchase breach the AFIC Constitution? "The AFIC constitution gives power to AFIC to purchase and lease property. There is a convincing argument to be made that the limitations in clauses 52, 53 and 55 cannot be invoked in this case because of the Federal Council approvals in 2010 and 2019." 1. Were there any potential conflicts of interest in the purchase? The answer was no. 2. As regards the value of the Perth property, it "was purchased for a good price and it has good potential". 3. As regards options in dealing with the Perth property, "[i]f the contract is rescinded, AFIC would lose a substantial sum of money and this would not be in the best interests of AFIC".
The report thus substantially cleared Dr Jneid, but with the criticism that the manner of purchase was "not ideal" and, implicitly, that the particular purchase should have been presented for approval to the Federal Council. The fact that the report contained some criticism of Dr Jneid suggests that the administration of AFIC was not completely dominated by him.
There is also an undated report investigating the claims made by Mr Zraika on 2 June 2020. The report was prepared by AFIC's legal support officer. It considered issues of staffing, conflicts of interest, the accuracy of the minutes of the meeting held on 13 October 2019 and the purchase of the Perth property. The report found that Mr Zraika's allegations "are incorrect, no real evidence has been provided nor found to support any finding of wrongdoing".

[21]

Failure to hold Federal Council and Federal Congress meetings

UMNSW contends that no Federal Council meetings took place from May 2020 to February 2022. UMNSW relies upon this submission to demonstrate Dr Jneid's intolerance of criticism and his deliberate attempts to evade accountability.
In cross-examination Dr Jneid accepted that no Federal Council meeting was held in the identified period: Tcpt, 7 June 2022, p 172. But in fact it seems that is incorrect. As addressed above, a Federal Council meeting was held on 28 June 2020 via Zoom. A delegate from UMNSW is recorded as having been in attendance.
Another Federal Council meeting was seemingly convened online on 17 July 2021.
In between those meetings, on 11 February 2021, State Councils for Victoria, NSW, Queensland, Northern Territory and Christmas Island sent a joint letter to AFIC requesting the calling of a Federal Council meeting of AFIC, stating that the election of the AFIC Exco was long overdue.
As explained above at [168]-[170], by order made by Black J on 8 March 2021 AFIC was restrained from convening a meeting of the Federal Council prior to the UMNSW's claims for substantive relief being determined. This meant that AFIC was barred from holding a Federal Council meeting in the period between 8 March and 16 or 26 April 2021.
In the Federal Council meeting on 17 July 2021, a motion was put that further meetings of the body be adjourned until the Court of Appeal decision was handed down. The motion was carried - there were five votes in favour and four in dissent. The President of the Islamic Council of Western Australia (ICWA), Mr Sayed, was in favour of the motion, and the representatives of ICV, UMNSW, ICQ and the Islamic Council of Tasmania were against. The consequence of this was that the Federal Council, by its own resolution, could not convene for the period between 17 July 2021 and 15 December 2021 (when the Court of Appeal decision was handed down).
It does appear that Federal Council meetings have not been held very regularly since the beginning of 2020. And, as noted above, one that was due to be held on 10 May 2020 was purportedly cancelled by Dr Jneid in circumstances which reflect poorly on him. That being said, cl 40 of the AFIC Constitution provides that Federal Council meetings shall not be held more than four times a financial year, so they are not intended to be very regular events. And the holding of only one meeting in 2021 is explained by the litigation that took place last year.
In these circumstances, I do not consider that any inference in support of an improper purpose should be drawn from the relative sparsity of Federal Council meetings.
As regards the delayed Federal Congress meeting, AFIC wrote to UMNSW on 14 July 2020 as follows: "As you are aware, the Annual Congress Meeting of the Australian Federation of Islamic Council is normally required to be held before 30 April each year. I also note that this year is an election year and that ordinarily at the Meeting the election of the office holders would take place. … As you are aware we are in the midst of the Covid 19 global and local pandemic. … Against the above background [relating to Covid-19] … the directors consider that the Meeting cannot be held at this time … The meeting cannot be held by audio visual link."
Whether or not the Congress could or should have been held by audio-visual means, I again do not consider the delay in holding the meeting supports any conclusion relating to improper purpose.

[23]

The 2021 litigation

Between November 2020 and January 2021 AFIC (by the Exco) took steps to exclude UMNSW officers from participating in UMNSW affairs, then to have UMNSW replaced as State Council for NSW. Details of the relevant correspondence are summarised by Bathurst CJ at [40] to [59] of 2021 CA. In a meeting convened on 16 January 2021 the defendant sought to replace UMNSW with a new body or group of individuals. This decision was ultimately held to be ineffective by Black J, as then upheld by the Court of Appeal.
There is no doubt that those events show a desire by the leadership of AFIC to exclude UMNSW. But of themselves they do little to establish that what occurred subsequently was done for an improper purpose, as opposed to because of some genuine concern that the plaintiffs should be excluded because of a failure to bring their membership into line with the membership of AFIC. Bathurst CJ stated in 2021 CA at [85] that: "the difficulty which arises is at least partly due to the fact that some societies in New South Wales are members of AFIC and not of UMNSW, whilst others are members of UMNSW and not of AFIC. As I have pointed out, that is an outcome not intended by the respective constitutions. If, as was intended, societies were members of both bodies, decisions concerning the fate of UMNSW would be made by a majority of the AFIC/UMNSW societies in the state."
In that context, a desire by the AFIC leadership to exclude the plaintiffs in circumstances where it is clear that (at the least) their membership included societies which were not members of AFIC cannot be said of itself to manifest an improper purpose. Nor does the fact that the means adopted in 2021 proved to be beyond power establish that the end sought to be achieved was improper. As I have noted above, Bathurst CJ explained at [84]-[87] of 2021 CA the ways in which a State Council could potentially be removed. ICV submitted that after the Court of Appeal judgment the Exco "convened to discuss how they could take advantage of the judgment to expel State Councils". There is nothing inherently improper in the Exco taking up one of the other options in seeking to achieve its purpose.

[25]

ICV membership applications

On 26 September 2020 AFIC issued a show cause notice to ICV. The notice concerned a special general meeting that ICV intended to hold the next day, in which ICV's member societies would vote on amendments to the ICV Constitution. The notice stated as follows: "Having reviewed the proposed amendments to the ICV constitution, our preliminary legal advice is that such amendments would make ICV in breach of its membership commitments to AFIC. These proposed amendments are tantamount to withdrawal of ICV membership from AFIC. … Further, I note that the majority of those ICV 'members' who are expected to vote are not members of AFIC. Only members of AFIC are permitted to participate in the affairs of AFIC and its member councils and societies as required in Clause 5(7) of the AFIC constitution… I note that the ICV has to date failed to include AFIC societies that were notified to you ... Your commitment under the AFIC constitution is to admit those societies into ICV as per clause 5(8) of the AFIC constitution."
In response to this notice, numerous letters were exchanged between ICV and AFIC from 26 September 2020 to 23 February 2021, on which day AFIC sent a letter to ICV which stated that "[t]here is a clear impasse in discussions on upholding membership obligations to AFIC". It seems that the dispute went into a hiatus whilst the 2021 litigation involving UMNSW proceeded. AFIC then raised the issue again in a letter apparently sent on about 14 January 2022 (though dated 2021), after the Court of Appeal decision. It stated that AFIC maintained that ICV "continues to breach its constitutional duty to remain a constituent body by allowing non-AFIC members to participate in AFIC affairs and by continuing to wrongfully deny ICV membership to recognised Victorian AFIC member societies".
Between mid-February 2022 and mid-March 2022 ICV received membership applications from nine AFIC member societies, as disclosed in the affidavit of Adel Salman, the current President of ICV. Details of the applications are tabulated below. Applicant Date application sent to ICV Date of AFIC Letter notifying member society it had been accepted into AFIC
United Imams & Dauaat Victoria Pty Ltd (UID) 14 February 2022 9 January 2019
Islamic Women's Council of Australia Incorporated (IWC) 18 February 2022 14 January 2021
Akkar Association of Australia Incorporated (Akkar) 22 February 2022 30 June 2020
Integrity Islamic Society of Australia Incorporated (IIS) 22 February 2022 14 January 2021
Mazraat Balde Australia Incorporated (MBA) 25 February 2022 14 January 2021
Australian Middle Eastern Council Incorporated (AMEC) 3 March 2022 27 August 2020
Australian Women's Rights Association Incorporated (AWR) 10 March 2022 4 February 2021
Australian Human Rights Association Incorporated (AHR) 10 March 2022 4 February 2021
Alnajat Association of Australia Incorporated (AAA) 12 March 2022 27 August 2020

[26]

On 24 February 2022 AFIC sent a "show cause" notice to ICV asking why it should not be expelled. It stated as follows: "The issues primarily relate to an inconsistent membership between Victorian member societies of AFIC and member societies of ICV and changes to the ICV Constitution. The changes to the ICV constitution were the subject of a show cause notice that was issued to ICV on 26 September 2020, the matters raised in that show cause notice remain unresolved."
The notice demanded, amongst other things, that ICV gave commitments within 14 days to "admit as members of ICV, AFIC member societies in Victoria that have applied to be members of ICV". It did not list any particular societies in that regard.
On 11 March 2022 AFIC issued a notice of expulsion, similar in terms to the one it issued to UMNSW (although not identical). It stated as follows: "The grounds for expulsion are as follows: (a) The ongoing failure of ICV to admit as members of ICV, the following AFIC Victoria member societies, all of which have been notified to ICV as members of AFIC, and should have been admitted as members of ICV. These societies are as follows: [10 societies] (b) The failure by ICV to commit irrevocably to take all necessary steps to amend the ICV constitution, in consultation with AFIC such that the form of the constitution is fully consistent with the AFIC constitution and that this be done within three months from the date of my letter of 24 February 2022. I note that I provided you with a guide as to what is required by sending you extracts from the constitution of the Islamic Council of Queensland (ICQ) under cover of my letter [sic] of 15 October 2020. (c) A failure to commit to AFIC that any ICV member who is not a member of AFIC will not participate in ICV elections, vote on changes to the ICV constitution or any other matter that will have any impact on AFIC."
Nine of the 10 societies listed in the notice of expulsion are those listed above. One further society is listed: Al Amin Islamic Association Victoria Inc. There is no evidence before me of it having applied to ICV for membership. Nothing in particular has been made of this point by the plaintiffs, and I will not address it further.
ICV highlights that at the time of the show cause on 24 February 2022 many of the societies had not applied to become members of ICV. However, AFIC only identified the member societies which were not part of ICV in its notice of expulsion, dated 11 March 2022. They were not identified in the show cause notice.
Nevertheless, the timing of these applications raises a large question about the propriety of what was occurring. AFIC had not notified ICV of the societies which had applied and which it says should have been admitted until after its decision. Furthermore, two of the societies only applied for membership of ICV the day before the expulsion decision (AWR and AHR). And one of them, AAA, was used as a basis for expulsion although it seems it only applied for membership the day after the expulsion.
ICV has not made a complaint of breach of procedural fairness in this regard. But the facts that AFIC did not give proper notice, that the applications it relied upon were all very recent, most of them had not even been made when the show cause notice was issued, and one of them was after the expulsion decision, do all lend significant support to the suggestion that the applications were part of an attempt artificially to set up a basis for expelling ICV.
The circumstances in which the applications to ICV were made also suggests that there was a significant degree of coordination between these applicants: 1. Eight of the nine letters for the member societies listed in the table above are dated 10 January 2022, with the exception of the letter accompanying AAA's application (which is dated 6 March 2022). That is so even though the applications were actually emailed through in the period 14 February to 11 March 2022. All nine of the letters appear to be in identical terms, save for the name of the applicant and the signature blocks. 2. As Mr Salman noted in his evidence, when ICV requested further information from the applicants four of them gave identical responses, with the only difference being the names under which they were made. The representatives of AWR, AHR, AMEC and AKKAR each stated as follows: "[Applicant] is a member of AFIC and this membership gives [Applicant] a right to be immediately accepted as a member of the relevant AFIC State Council being Islamic Council of Victoria (ICV). Our Society's status with the ACNC should not be an issue or has any relevance with respect to Our Society's acceptance as a member of the ICV. For the ICV to be the AFIC State Council in Victoria, it must abide by the AFIC constitution."
There is nothing wrong per se with coordination between such societies. But in the circumstances here it is suggestive of an organised campaign to set up a basis for expulsion.
That suggestion here is reinforced by the fact that there is no evidence that the protocol for dealing with membership applications, agreed between AFIC and the State Councils, was followed. The protocol was that AFIC would seek the views of the relevant State Council prior to admitting an applicant. The protocol was confirmed by Mr Trad in an email on 2 July 2020, stating that "AFIC agreed to notify the respective council if a society applied through AFIC and we would wait for feedback before finalising". The purpose of the protocol is seemingly to encourage dialogue between AFIC and its State Councils. Indeed, the AFIC application form has fields entitled "Forward copy to State Council" and "Recommendation of the State Council". The importance of having some such agreement is obvious in circumstances where the intention was to have common membership between the two levels, but a society might apply first to one level without simultaneously applying to the other.
However, Mr Salman gave unchallenged evidence that with the exception of AAA, Akkar and AMEC, AFIC "did not follow the Protocol in respect of any other member society that applied to AFIC". The applications of the three societies he named had been raised with ICV on 2 July 2020. It appears that ICV may have not approved them for membership of ICV on the basis that they were not registered with the ACNC (see below). The dates on which the member societies were notified of having been accepted into membership of AFIC are recorded in the table above. Those three societies became members of AFIC in June 2020 (for Akkar) and August 2020 (for AAA and AMEC).
The other six societies had seemingly been accepted into membership of AFIC by February 2021. There was thus plenty of time for the protocol to have been followed.
There is a further oddity here. The letters sent to the nine applicants by Dr Jneid notifying them that they had been approved for membership of AFIC stated that "[a]s of today your Society is a full member of AFIC and Islamic Council of Victoria, the State Council for your State and therefore entitled to participate in the affairs of both organisations". That statement was incorrect. The State Councils controlled their own membership.
Not only had the protocol not been followed as regards six of the nine societies, there is no evidence before me that ICV had otherwise been asked to consider or approve applications for membership prior to the applications made in February and March of this year. If the issue of ICV's refusal of membership for the nine societies was being raised in good faith by the leadership of AFIC then it would have been incumbent upon AFIC to raise the issue with ICV and give it a reasonable time to consider the applications of the member societies. That was not done.
ICV was entitled to consider the applications for membership in an orderly way. As it happens, on 24 March 2022, subsequently to the expulsion decision, ICV requested further details from the applicant societies, including that they (other than UID) confirm that they were registered with the Australian Charities and Not-for-profits Commission. ICV's Constitution requires societies to be registered with the ACNC to be eligible for membership.
On 27 March 2022 ICV convened a meeting to discuss inter alia its expulsion from AFIC. In the minutes to the meeting, the following was recorded: "The ICV is challenging the validity of the SGM and will not attend … We have been flooded with 9 applications, and all but one, are not ACNC registered [other than AMEC]. We have requested their financial statements and an affidavit that they have 100 legitimate members. These are yet to be provided so the Exco is not in a position to make a decision on their application. The other factor that could make AMEC non-compliant with the ICV's membership requirements is that their constitution stipulates that the AFIC has precedence."

[27]

UMNSW membership applications

As addressed above, on 14 January 2022 AFIC wrote to UMNSW, alleging that UMNSW "continues to breach its constitutional duty to remain a constituent body by allowing non-AFIC members to participate in AFIC affairs and by continuing to wrongfully deny UMNSW membership to recognised NSW AFIC member societies". The letter attached a current register of NSW member societies for UMNSW to review. It requested an undertaking from UMNSW that it would rectify the alleged breaches.
Subsequently, UMNSW received three applications for membership from the following applicant societies on 18, 19 and 30 January 2022 (respectively): 1. Bebnine Akar Charitable Association Inc (BAC); 2. Jordanian Hub Inc (JHI); and 3. Al Salaam Islamic Society of NSW Inc (ASIS).
The application letters of BAC and ASIS are in evidence. They are in identical form to the Victorian letters referred to at [251(1)] above. The correspondence states that BAC was admitted into AFIC membership on 16 June 2021, and ASIS on 4 February 2021. Any such letter for JHI is not in evidence, but Dr Jneid gave evidence that it was admitted into AFIC membership shortly after it applied, which occurred on 5 July 2020. He also stated that BAC had applied for membership on 20 October 2020, and ASIS on 25 December 2020.
On 28 January 2022 UMNSW responded to AFIC's letter dated 14 January 2022. Amongst other things, UMNSW stated that to its knowledge it had not wrongfully denied UMNSW membership to recognised NSW AFIC member societies, and stated that it expected that the membership protocol would be adhered to by AFIC.
On 3 and 4 February 2022 UMNSW emailed each of BAC, JHI and ASIS. In each email it acknowledged receipt of the application and informed the applicant that the matter had been tabled for the next UMNSW Executive Committee meeting.
On 11 February 2022 AFIC responded to UMNSW's letter dated 28 January 2022. AFIC identified the three AFIC NSW member societies that had applied to be members of UMNSW and sought confirmation that these three members had been admitted to UMNSW. These three societies had applied in mid to late January as described above. The letter also identified nine of UMNSW's members that were not members of AFIC. There is no evidence that UMNSW had told AFIC of these three applications. I infer that AFIC was well aware of them by itself. Indeed, taking account of the minutes of the Exco meeting of 22 December 2021 (referred to at [237] above), I infer that members of the Exco had encouraged these societies to apply to UMNSW.
On 24 February 2022 AFIC issued the show cause notice to UMNSW, warning that UMNSW was at risk of expulsion from AFIC. No particular mention was made of the three applicant societies.
On 25 February 2022 UMNSW responded to AFIC's letter of 11 February 2022. As regards UMNSW not admitting AFIC member societies based in NSW, UMNSW noted that it assessed every application for membership presented to it, and also referred to the membership protocol, stating that: "the agreed system for membership admissions has always been that, when a society applies for membership to AFIC, the relevant documentation associated with the application is to be forwarded to the relevant State Council for its input into the membership decision prior to any decision being confirmed by AFIC. It is not clear how there could be AFIC members who were admitted without our knowledge or input (that is, without AFIC being in breach of its own arrangements)."
On 8 March 2022 the UMNSW Executive Committee met. The status of the new applications was recorded in the minutes as follows: "Update - New Member Applications - UMNSW have received application for UMNSW membership; - The membership committee will review the applications against UMNSW membership criteria and coordinate with the applicants on whether the applicants qualify for membership."
On 11 March 2022 UMNSW wrote to the three applicants, noting that their applications had been discussed at the Executive Committee meeting. In the case of BAC and ASIS, UMNSW stated that it was processing the applications and requested further documentation. In the case of JHI, it was informed that its application had been successful.
On the same day, 11 March 2022, AFIC issued the notice of expulsion to UMNSW. One of the grounds given for expulsion was the "ongoing failure of UMNSW to admit as members of UMNSW, the following AFIC NSW member societies, all of which have applied to be admitted as members of UMNSW". The three new membership applicants were then listed.
This course of events is consistent with what occurred as regards the ICV, albeit here the applications were at least all made prior to the expulsion decision, although after the 14 January 2022 AFIC letter alleging that UMNSW was "continuing to wrongfully deny UMNSW membership to recognised NSW AFIC member societies". Notably: 1. AFIC had not complied with the agreed protocol as regards notifying UMNSW of membership applications which had been dealt with in 2021. As Mr Elrayes, the President of UMNSW said in one of his affidavits: "If it had been applied as UMNSW had expected, consideration of all new applications for membership by UMNSW would have occurred before any society was admitted to membership of AFIC". 2. The applications manifest a degree of coordination which occurred, I infer, at the instigation of members of the Exco of AFIC. 3. AFIC failed to provide UMNSW with a reasonable opportunity to process the applications before moving to expel it.
As to the latter point, the following cross-examination of Dr Jneid is worth noting (Tcpt, 7 June 2020, p 130): "Q. Now, you were aware, were you not, that UMNSW was in the process of admitting those three member societies when you issued this notice expulsion. Were you aware of that? A. On that time, I wasn't. But now, it's come to my attention. Q. Yes. A. Yep. Q. And the reason why you weren't aware of it is because you never picked up the phone, did you, and sought any information as to what the state of affairs of those three applications were at the time. You never spoke to anyone at UMNSW. Did you? A. No."
As regards the failure to follow the protocol (the existence of which Dr Jneid accepted), the following exchange occurred in cross-examination, by reference to AFIC's application form (Tcpt, 7 June 2020, p 141-2): "Q. If AFIC receives an application for membership, before you process that application, the first thing AFIC does is forward a copy of the application to the State council, is it not? A. No. Q. It doesn't do that? A. No. Q. This form is incorrect? No-one ever forwards it in AFIC a copy of the application to the State council? A. We - we did in some circumstances and some not. … Q. Whether it happens in fact or not, I'm asking you whether your understanding of what should happen-- A. Yes, I understand. Q. --is that it should first go to the State council. Correct? A. Correct. Q. Then, secondly, you await the recommendation of the State council. Correct? A. Correct."

[28]

The evidence of Dr Jneid and AFIC

The CEO of AFIC, Mr Trad, gave evidence, but he was not a member of the Exco, and his evidence is of limited relevance in relation to the purposes of the Exco in taking the expulsion decisions. AFIC tendered a document of 4 January 2021 which records his stating that "[w]e do not want to expel ICV, we want them to come back on board and work with us". This statement has little weight given that it dates to a year before the events in question, and in any event was made by the CEO.
AFIC also tendered an email exchange between Mr Trad and ICV in which Mr Trad said on 4 March 2022, having explained AFIC's view of the significance of the Court of Appeal decision, that "[t]he deadline for the show cause notice is drawing near and I would encourage you to address the substantive issues and accede to AFIC's requirements". That statement does manifest an openness to ICV retaining membership if the "substantive issues" were addressed. But it does little to undermine the significance of the points I have made above with respect to the timing and other issues that occurred in relation to the applications for membership of ICV.
The only person called by AFIC who was a member of the Exco at the relevant time was the President, Dr Jneid. Dr Jneid stated in his affidavit evidence that "[i]t is my opinion as President of AFIC that it is in the interests of AFIC that there should be a complete overlap between membership of AFIC and membership of the AFIC State Councils". I have no reason to reject that evidence of his belief, although (as discussed below) it is a view to which AFIC has only given partial effect. After referring to the exchange of correspondence in January-March 2022, he stated that "I do not believe AFIC has ever received any reasonable responses to the issue of differing memberships of UMNSW and AFIC". Dr Jneid did not directly state that his purpose in supporting the expulsion of the plaintiffs was not the alleged improper purpose of removing critics prior to the new election, but I understood that to be AFIC's (and presumptively his) position.
Dr Jneid was the only witness upon whom a credit attack was made. ICV submitted that the Court "should not accept Dr Jneid as a witness of credibility because of his prevarications, numerous lapses of memory and failure to accept points well established by the documentary evidence". That attack goes too far. I infer that English is not the first language of Dr Jneid, and some allowance must be made for that in relation to the manner of some of his answers. And some lapses of memory are, of course, quite understandable.
That being said, I consider that the evidence of Dr Jneid should be approached with caution. Two matters serve to illustrate why that is so. First, the following exchange occurred in cross-examination as regards his purported removal of Mr Hammoud from the Exco in May 2021: "Q. You did that because you identified him as being the person behind the complaints that were being directed at you in respect of the Perth property. Correct? A. Not correct. You have to look at the whole history. Q. Other than Mr Hammoud's complaints about the Perth property, what else was there in or around 18 May that caused you to decide to expel him from the executive committee on that date? What else was there? A. There is some issues before even - not with me. It was other members of the executive. I can't - I can't tell you right now. But definitely there was especially - you know, he had issue with the treasurer even, before, you know, like - I can't - I can't recall exactly what was it, but it's not just with me."
That latter answer struck me as not believable. His removal of a member of the Exco was, on any view, no minor matter. It is not the sort of thing someone in Dr Jneid's position would be likely to forget. I do not accept Dr Jneid's evidence that whilst the removal was not connected to the Perth property, he could not recall what did lie behind it.
Secondly, there was much cross-examination about whether Dr Jneid was a member of more than one member society, in circumstances where a person is not supposed to be a member of more than one society within AFIC (as I address below). In that context he gave evidence in cross-examination denying the suggestion that he had been on the executive committee of the Islamic Council of Western Australia from the time of his election as President of AFIC in 2017 onwards; he said that he had resigned from this position prior to his election as President (Tcpt, 7 June 2022, p 155). Yet ICV tendered a "Notice of special resolution to change the rules" for ICWA, sent to the Western Australian regulator, which was signed by Dr Jneid on 14 March 2019, and which certified that "I am a duly elected committee member of the association". He was subsequently asked (under the protection of a certificate under s 128(6) of the Evidence Act 1995 (NSW)) if he had made a false declaration, to which he answered "No" (Tcpt, 8 June 2022, p 196). I conclude that his earlier answer about having resigned from ICWA prior to his election was not true. It is not necessary for me to conclude whether or not that untruth was made knowingly.
I thus give limited weight to Dr Jneid's presumptive denial of having had an improper purpose. Needless to say, before I can make any such finding of improper purpose I must still be positively satisfied of it. Further, such a finding is a relatively grave one and would not be made lightly, taking account of the principle manifest in s 140 of the Evidence Act.

[29]

Conclusions on the membership issue as regards the Exco

As I have explained above when dealing with the quorum issue, at the time the expulsion decisions were taken there were purportedly five members of the Exco (one of whom, Ms Adam, I have concluded was not a valid member). The only one of those who gave evidence was Dr Jneid. The evidence makes relatively clear that he was the dominant personality in the Exco, although, as I have noted above, he was not so dominant that Mr Trad felt he could not make some criticism of him in relation to the Perth property. In any event, I see no real basis to distinguish between members of the Exco in reaching conclusions as to their purposes given that I have only heard from one of them, and given that no submissions have been made by AFIC that some such careful delineation should be undertaken. Further, my conclusions as to the purposes are drawn from the objective facts rather than from any subjective evidence of intentions.
I reach the following conclusions on this issue: 1. AFIC had not complied with the agreed protocol as regards notifying either plaintiff of the membership applications which formed the relevant basis for expulsion. 2. The applications from the new applicants manifest, in both jurisdictions, a degree of coordination which I infer occurred at the instigation of members of the Exco of AFIC. 3. AFIC failed to provide either plaintiff with a reasonable opportunity to process the applications before moving to expel them. Most notably, the Exco expelled ICV for refusing to admit at least one society that had not yet applied for admission, and two others which had applied the day before.
UMNSW indicated that it sought to rely on what occurred as regards ICV in support of its own claim of improper purpose on the basis, in effect, that it was all part of one course of conduct. I accept that such reliance is appropriate.
I do accept AFIC's submission that the non-overlapping membership issue had been an ongoing source of concern.
Nevertheless, in the circumstances outlined it is apparent that the applications were part of an attempt by the Exco to set up a basis for expelling the plaintiffs, regardless of its own fault in creating the situation (by not following the protocol), and regardless of how the plaintiffs might deal with those applications. The underlying concern may have been genuine but the way the situation relating to the new membership applications was created and dealt with was an artifice.

[31]

Claimed inconsistent treatment of the plaintiffs compared to ICQ

With respect to the first aspect, the plaintiffs rely in particular upon the fact that ICQ was not targeted for inconsistencies that existed between its membership and AFIC members in Queensland. The plaintiffs contend that this was because ICQ was not critical of Dr Jneid's leadership, in contrast to the plaintiffs. Key events relied upon the parties are as follows.
On 29 October 2020 the AFIC Secretary wrote to ICQ with respect to ICQ's AGM, planned for 1 November 2020. AFIC congratulated ICQ on having an "excellent constitution which concords on most points with the AFIC constitution". AFIC nonetheless took issue with the fact that "there are many member societies with ICQ that are not AFIC members and there are AFIC member societies that have not yet been admitted into ICQ". AFIC then quoted cll 5(7), 5(8) and 20(h) of the AFIC Constitution, which provide as follows: "5(7) … Only member societies of the AFIC which have paid their membership subscription to the AFIC are eligible to participate in the affairs of the AFIC or the relevant State Council 5(8) A society which has been admitted as a member of the Federation according to the requirements of clause 5(3)(c) shall hereby be admitted as a member of the respective State Islamic Council. … 20(h) A candidate who wishes to become an office bearer of the [State] Council must possess the following qualifications: (i) He must be a financial member of a member Society which is a member of the Council and AFIC."
AFIC then identified that some of the nominees for the ICQ AGM were nominated by non-AFIC member societies, and stated: "The next step from here: … A - Immediately issue all member societies a notice of cancellation of the ICQ AGM planned for 1 Nov 2020. B - Amend the ICQ nomination form to ensure that it has clear instructions including instructions that only societies that are members of AFIC may participate in the AGM and elections and that only members of AFIC member societies maybe nominated for positions on the ICQ executive committee. C - Invite all QID societies that are members of AFIC to participate in the AGM as per the relevant clauses of the ICQ and AFIC constitutions…"
Notably, there was no suggestion or direction from AFIC that ICQ expel its non-AFIC member societies.
On the same day ICQ postponed the ICQ AGM on the basis of membership issues. On 4 November 2020 a notice was sent out by ICQ saying that the AGM was rescheduled for 13 December 2020. The notice also stated as follows: "We have obtained legal advice and also consulted the ICQ membership, and we are not proceeding to hold the AGM in order to remain compliant with ACNC and OFT requirements. As a result of this, nominations will only be accepted from organisations who are members of both ICQ and AFIC. All ICQ members are still invited and expected to attend. We recognise there are still some constitutional issues between ICQ and AFIC that need to be resolved. These will be addressed by the new executive committee once the AGM has been held."
What is notable about this notice is that non-AFIC member societies in ICQ were to be prevented from participating in the affairs of AFIC in the sense of accepting nominations from those societies which were members of AFIC, but non-AFIC member societies were not otherwise excluded from membership of ICQ. There is no evidence before me whether steps were subsequently taken by ICQ to address the "constitutional issues" referred to. But it appears that ICQ continued to have members which were not members of AFIC (see below).
On 9 December 2020 Mr Jamal wrote to Dr Jneid and Mr Trad, stating the below: "Unfortunately, not all Muslim Societies or Organisations based in Queensland are members of AFIC. My efforts to get all organisations under the ICQ banner and then onto AFIC was not acceptable to some AFIC/ICQ members. I cannot categorically say that AFIC represents ALL Muslims in my State"
In my view (contrary to the position taken by the plaintiffs), in this letter Mr Jamal was speaking about Muslim societies in Queensland which were neither members of ICQ nor AFIC. That interpretation is supported by Dr Jneid's response on 9 December 2020, which stated: "I am not asking you to say that we are representing all Muslims in Queensland. What we are saying is that ICQ, being member of AFIC recognises AFIC as national peak representative."
It appears that the approach taken by ICQ in November and December 2020 was considered satisfactory by Dr Jneid and AFIC. So much emerged in cross-examination of Dr Jneid (Tcpt, 7 June 2022, p 150-1, emphasis added; see also at 131-2) "Q. You know that to this day ICQ continues to have non-AFIC number societies. Correct? A. Think so. Q. You think so? A. I - yes, probably. Q. It's not a concern for you? A. It is concern for me, but the concern was - is the interfering of AFIC affairs, you know, the other society is non-member of - it's completely different, the relation between the New South Wales and Victoria and ICQ. We recommend - I mean, we spoke with United Muslim of New South Wales and we told them, you know, like, when the affairs of AFIC has to be only member of AFIC to deal, you know, was there any matters or any election. And ICQ, they always-- Q. What I want to suggest to you Dr Jneid, is that is not what happened. You allowed ICQ to have non-AFIC members but you didn't allow UMNSW to have non-AFIC members, and that was the basis upon which you expelled them. Correct? A. I come back to the - to the answer as I said before. I did not, because AFIC [sic - ICQ] was cooperating with us as AFIC, and I [sic - it] was going to do the right things, specially when it comes to the meetings, when it comes to the election, when they come to any other matters, you know. They only allowed AFIC members to participate in AFIC affairs. Q. Is your evidence that as long as the State council cooperates with AFIC, they're allowed to have non-AFIC members in their membership? A. If they cooperate in the - according to the constitution, we - in that - if they cooperate according to the constitution and they say, "Yes, we will follow AFIC instruction, and work with AFIC," they give you at least indication they are going to be working with us, they going to be following AFIC constitution, you know, we can work together until that all the society become member of AFIC."
Thus Dr Jneid's position appeared to be that ICQ was different from the plaintiffs because it had taken steps to exclude non-AFIC members from "participating in AFIC affairs" (presumably in particular as regards election of State office-bearers), it had worked with AFIC, and was prepared to continue working with AFIC to address membership issues.
The requirement for overlapping memberships carries within it the potential for such issues to arise. What is to happen, for example, if the State Councils have a requirement for membership (such as registration with the ACNC) which AFIC does not have? Or if one level considers a member suitable for membership but the other does not? Moreover, in community associations such as those in dispute here some allowance should be made for a failure to achieve perfection in administration of the rules. A lack of complete consistency as regards administration does not necessarily lead to a conclusion that those involved are acting for an improper purpose.
That being said, there is one inconsistency here which is relatively stark. As I have addressed above with respect to issue (3), relating to procedural fairness, one of the grounds given by the Exco of AFIC for the expulsion of UMNSW was the previously unnotified requirement to commit to "exclude non-AFIC member societies from membership of UMNSW". As addressed above, this is a materially broader requirement than excluding members from participating in the affairs of AFIC.
This situation is different as regards ICV. One of the grounds given by AFIC for its expulsion was a "failure to commit to AFIC that any ICV member who is not a member of AFIC will not participate in ICV elections, votes on changes to the ICV constitution or any other matter that will have any impact on AFIC". That is a narrower ground than the UMNSW equivalent, as it is more directed to participation in AFIC affairs. It is broadly consistent with the approach apparently taken by the Exco to ICQ.
Another fact worth noting here is that in the minutes of the 22 December 2022 meeting of the Exco, seven days after the Court of Appeal decision was handed down, the following is recorded with respect to advice received the day before from counsel (noting no claim for privilege was made): "Counsel told AFIC that before invoking Rule 33 [of the Model Rules], AFIC should write to the state council and get a written commitment from them to abide by AFIC's membership rules, especially to stop non AFIC members from voting and to ensure that AFIC members are given their right to vote. Counsel indicated that it would be better to send this letter of commitment to all counsels [sic] that are at odds with the AFIC constitution."
In fact, such a letter was only sent to the plaintiffs, as Dr Jneid accepted (Tcpt, 7 June 2022, p 133). There is perhaps some ambiguity as to who might be regarded as being at odds with the AFIC Constitution, but it would be reasonable to understand that to extend to all State Councils which had non-AFIC members as members. That would have included at least ICQ.
In these circumstances, it is apparent that at least UMNSW was targeted in a manner that was inconsistent with the way that ICQ had been treated. One of AFIC's grounds of expulsion of UMNSW - failure to commit to "exclude non-AFIC member societies from membership of UMNSW" - was something that the Exco was prepared to accept in ICQ. That inconsistency may have been at least in part because ICQ had proved willing to compromise to some extent. But, consistently with my findings on issue (3), the process that the Exco had engaged in on this issue was itself flawed - the inconsistent point was raised without notice to UMNSW. Further, all of this was occurring in the immediate aftermath of AFIC having lost its appeal relating to its earlier attempt to exclude UMNSW.
I conclude that this course of conduct manifests some animus by Dr Jneid and the Exco towards at least UMNSW as compared to other State Councils who were in a similar position.
I note that the plaintiffs put other arguments about inconsistency between the membership of State Councils and AFIC, including that the constitutions of some State Councils allowed societies to join which could not join AFIC because they would be too small. I do not consider it necessary to address this point, as it would not advance things further than the evidence I have just addressed.

[32]

Claimed inconsistent conduct with respect to membership of societies

The plaintiffs' argument on this point was that Dr Jneid continued to hold membership in many societies contrary to the prescription in cl 5(3)(b) of the AFIC Constitution - described by counsel for UMNSW as an "anti branch stacking" provision - which provides as follows: "5. Structure and Membership of AFIC (3)(b) A person who is already a member of the Federation by virtue of membership in a Society may not enrol as a member of another Society unless he resigns his membership in that Society."
This conduct of Dr Jneid was argued to reflect a superficial commitment to the AFIC Constitution.
Documents tendered by UMNSW indicated that Dr Jneid had been a member of the following associations when they applied to be incorporated (and noting Dr Jneid's responses made in cross-examination): 1. International Humanitarian Aid Inc, being a member from at least 30 January 2013 - Dr Jneid said, as regards still being a member: "Probably, yes. I'm not sure" (Tcpt, 7 June 2022, p 156); 2. Muslim Youth Support Centre Western Australia Inc from at least 6 January 2014 - Dr Jneid said he had resigned from this, "but I can't recall how" (Tcpt, 7 June 2022, p 161); 3. Muslim Defence League from at least 5 November 2014 - Dr Jneid said "I did not remove myself, the - the executive committee of this people should removed them, not - I don't remove myself" (Tcpt, 7 June 2022, p 156); 4. Ahlu Sunnah Wal Jamaah Inc from at least 21 August 2015 - Dr Jneid claimed to have resigned from this association (Tcpt, 7 June 2022, p 157), but he did not produce evidence of this, despite a call being made for such evidence; 5. Muslim Public Affairs Council from at least 15 September 2015 - Dr Jneid said he was definitely not a member (Tcpt, 7 June 2022, p 160); 6. Fremantle and District Islamic Association Inc from at least 14 December 2015 - Dr Jneid said he had helped establish this body, as he had for many others, but "[u]sually, I resigned it's just - they just take over themself and then they have their own meeting and put their own executive committee", although for this one "I can't recall if I told them, you know, because they knew I'm not going to be member of this societies" (Tcpt, 7 June 2022, p 159).
I find that Dr Jneid has been, and still is, a member of more than one AFIC member society at the one time, contrary to cl 5(3)(b) of the AFIC Constitution.
In my view little turns on this. It does show some inconsistency by Dr Jneid in his application to constitutional requirements. However, as mentioned above at [298], inconsistency of itself does not advance matters very far. This issue of individual memberships is distinct to a significant extent from the issue of whether or not non-AFIC members were members of the plaintiffs or vice-versa. I do not consider that it advances the arguments relating to improper purpose.

[33]

Conclusions on the claimed improper purpose of the Exco

I have found as follows: 1. Dr Jneid does not appreciate receiving criticism. He has sometimes taken steps to avoid being held accountable which reflect poorly on him. But Dr Jneid and the Exco have been the subject of repeated criticisms by most of the State Councils, not just by UMNSW and ICV. 2. The membership applications sent to the plaintiffs in January to March of this year were part of an attempt by the Exco of AFIC to set up a basis for expelling the plaintiffs, regardless of its own fault in creating the situation (by not following the protocol), and regardless of how the plaintiffs might deal with those applications. The underlying concern of AFIC may have been genuine but the way the situation relating to the new membership applications was created and dealt with was an artifice. 3. One of the grounds given for the expulsion of UMNSW indicates that it was targeted in a manner that was inconsistent with the way that ICQ had been treated. The course of conduct manifests some animus by Dr Jneid and the Exco towards at least UMNSW as compared to other State Councils which were in a similar position.
The improper purpose alleged by the plaintiffs is to the effect that the intent was to remove them as prominent critics of the Exco and to replace them with bodies that supported the Exco and the President in the face of the impending elections. ICV put it a little more broadly: "to ensure that the President and members of the Executive Committee of AFIC retained control of the affairs of AFIC".
As I have noted, the holding of a Federal Congress to elect new office-bearers is long overdue. On 12 February 2022 the Federal Council scheduled the Congress for 4-5 June 2022. That was put on hold following the instigation of these proceedings. In any event, the elections were to be held relatively soon after the events described above.
The plaintiffs referred to what was said at the SGM held on 9 April 2022 to hear ICV's appeal from its expulsion (which ICV did not attend). Mr Trad is recorded in the minutes as saying the following in response to a query about whether this dispute would end up in court: "Anybody who has property must be prepared to defend it. The more assets you have, the more wolves you have outside who want to grab them. In the end, this is a fight to control the substantial assets of AFIC because this organisation has been successful and had built the schools you see in different States. People want them. They covet power, they covet assets and it all depends on the morals and ethics of the person you are dealing with."
I note that Dr Jneid gave evidence that AFIC controls assets worth about $50 million and has annual income of around $3.5 million (Tcpt, 7 June 2022, p 172). As I have explained above, the views of Mr Trad are of limited relevance.
Of more note is what Dr Jneid is recorded as saying at the SGM after Mr Trad had spoken (emphasis added): "When I took over as President, the AFIC has a $13m debt and was going to go bankrupt with money owed to lawyers and the banks. No bank ever wanted to give AFIC $10m. We had to fight. I spent 4 months here in the office, conducting my business while trying to clean up the mess. This is why we have to be careful who takes over in the next election and to help AFIC because AFIC helps every centre and every mosque and also, we started the schools and colleges as well."
This statement was made in support of the argument for confirming the expulsion of ICV. It suggests that part of what Dr Jneid was seeking to achieve with the expulsion of ICV was directed to who might take control at the forthcoming elections.
Even given this evidence, the ends sought to be achieved by the Exco in engaging in the artifice relating to the new membership applications is not pellucidly clear. As noted, I have found that Dr Jneid was somewhat adverse to criticism. And the impending elections were no doubt part of the context of the expulsion decisions, as reflected in what was said at the SGM confirming the expulsion of ICV.
In any event, whatever the Exco's motives were for its expulsions decisions, it is evident that the Exco used the artifice of the new membership applications as a basis for expelling the plaintiffs regardless of the merits of the point. That cannot be regarded as a good faith exercise of the power of expulsion granted by rule 33 of the Model Rules; that is to say, that purpose of using that issue in that way was not a proper purpose. That conclusion is reinforced, as regards UMNSW, by my finding of some degree of animus towards it by Dr Jneid and the Exco.
The decisions of the Exco were not only put on the ground of failing to admit the new members, but also on the ground of having admitted members who were not members of AFIC. That ground has not been undermined here.
In administrative law an unauthorised (or improper) purpose need not be the sole purpose to be invalidating; the question is whether the ulterior purpose "is a substantial purpose in the sense that no attempt would have been made to [take the action] if it had not been desired to achieve the unauthorized purpose": Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 at 469 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ. No party suggested that some different test should apply here.
To my mind the artifice employed with respect to the new membership applications is so significant that it infects the whole of both expulsion decisions taken by the Exco. A lack of good faith and proper purpose of the kind that I have found with respect to one ground of the decisions cannot neatly be segregated from the other ground, as though they were all independent. I find that the improper purpose was a substantial and actuating one in the sense described.
I thus conclude that the decisions by the Exco to expel each of the plaintiffs were infected by the improper purpose of employing an artifice as a basis for making the expulsion decisions. If those decisions of the Exco were considered by themselves, they would be invalid.

[34]

The consequences of the Exco's decisions being taken for an improper purpose

AFIC's submission was that even if the Exco's decisions were infected with an improper purpose, that did not lead to invalidity of the decisions made by the SGMs, which are the operative decisions.
UMNSW submitted that the SGM decisions were "all fruits of a poisoned tree, being poisoned by the initial improper purpose" (Tcpt, 8 June 2022, p 224). The plaintiffs also submitted that if account was taken of all the circumstances - including, in particular, the severity of the consequences of the decisions, being the "disenfranchisement of two of the largest States in the subsequent election" (ibid) - any discretion should not be exercised in favour of AFIC. They invoke the statement by the Privy Council in Calvin v Carr (being a procedural fairness case) that "there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result" (at 593). This, they say, is such a case.
An issue which bears some similarity to this issue is what occurs when a multi-member decision-making body has a minority of members who are shown to have been affected by a reasonable apprehension of bias. Different views on the issue were expressed in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [31]-[47] per Spigelman CJ, [84]-[103] per Basten JA, [237]-[253] per Campbell JA; see also Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 7th edition, 2022) at [10.50]. On the "rotten apple" theory, if any member is so affected that is enough to invalidate the decision. On a broader view it is a matter of looking more broadly to all the circumstances. On another, it is a causation question - did the bias of the person/s in question affect the outcome?
The case of Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 concerned a situation where one person in a three member panel was found to be subject to a reasonable apprehension of bias. The plurality said at [48] that "the participation of others does not overcome the apprehension that Ms Hughes' interest in the outcome might affect not only her decision-making, but that of others". This statement is perhaps more consistent with the "rotten apple" approach, although the issue was not examined in detail (note also Gageler J at [67]-[70]). The issue might now overlap with issues of materiality, which involve consideration of whether there is a realistic possibility that the error could have led to a different outcome: cf MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 [2021] HCA 17 at [2].
In my view it is not necessary to seek to resolve that debate here, as the analogy has limited force. The cases just mentioned involve consideration of the nature of the principle of apprehended bias, which involves application of the fair-minded lay observer test. The issue here is different, going to ascertainment of the purposes of a collective decision. The infection identified above was in the Exco's decisions. The operative decisions are those of the SGMs (assuming here that those meetings were properly constituted). There are obvious and well-known difficulties in seeking to identify purposes of collective bodies, especially large ones. The purposes and intentions of the members of such a body are likely to be various.
No real attempt has been made by the plaintiffs to show that the member society delegates who attended of the SGMs were themselves infected with an improper purpose. There was some cross-examination of Dr Jneid seeking to show that he and members of his family were involved in a number of Western Australian societies that are members of AFIC. I have concluded above that Dr Jneid was and is a member of more than one member society, contrary to the requirements of the AFIC Constitution. However, insofar as this line of attack was meant to impugn the decisions at the SGMs on the basis of some kind of vote-stacking exercise I would reject the argument as not having been raised in the amended points of claim.
In substance the taint of improper purpose was said to arise by the connection to the Exco decisions. But to my mind it has not been established that the SGM decisions are so dependent on or connected to the Exco decisions as to be infected with the taint of the improper purpose actuating those decisions.
At the heart of my conclusion about the improper purpose of the Exco is the artifice relating to the new membership applications. Those facts were known to the plaintiffs by the time of the SGMs.
In the case of UMNSW, its "Appeal Submission" dated 21 April 2022, which was distributed to the member societies gathered for the SGM, touched on the issue, stating: "In late January 2022, three AFIC member societies had applied to join UMNSW. UMNSW was in the process of processing their applications when AFIC expelled it. UMNSW would have admitted these members societies."
As addressed above in relation to procedural fairness, UMNSW had a full opportunity to address that in the meeting on 23 April 2022.
As for ICV, it chose not to attend the SGM held on 9 April 2022. It provided a written submission dated 8 April 2022, which was read out to the SGM. That submission touched on some of the matters connected to the improper purpose issue.
There is no doubt that the consequences of the expulsion decisions are severe. But ultimately it is for incorporated associations to govern themselves. It is not for this Court to engage in merits review of expulsion decisions.
The point can be put another way. The way that the plaintiffs framed their improper purpose case was to allege that the Exco expulsion decisions were taken for a purpose of removing critics of the AFIC leadership prior to the new elections for officeholders within AFIC. That purpose is thus about distortion of democratic processes. But the SGMs themselves involved an exercise of democratic processes. I have concluded above that the SGMs should have been constituted as a special meeting of the Federal Congress. But if the SGMs were properly constituted (that being the premise of my consideration of this issue), then it was an appropriate exercise of democratic decision-making as to whether or not the plaintiffs should remain members of AFIC. Ultimately, if the membership considered that the conduct of the plaintiffs was detrimental to the interests of AFIC such as to warrant expulsion, then that is a matter for them.
Here, taking account of all the circumstances, I am not persuaded that the decisions of the SGMs can be said to have been actuated by the improper purpose alleged by the plaintiffs. Nor are those decisions so dependent on the decisions of the Exco as to be tainted by association. This ground of challenge is thus not made out.

[35]

Orders

The orders of the Court will be as follows in the UMNSW proceedings: 1. The Court declares that the plaintiff remains a member of, and the State Council for New South Wales within, the defendant. 2. The defendant is to pay the plaintiff's costs with respect to its application for this relief. 3. Liberty to apply.
In the ICV proceedings, the orders of the Court will be: 1. The Court declares that the plaintiff remains a member of, and the State Council for Victoria within, the defendant. 2. The defendant is to pay the plaintiff's costs. 3. Liberty to apply.
UMNSW also sought injunctive relief preventing AFIC from taking steps to give effect to the decision to expel it. An injunction does not appear necessary here. There is no reason to think that AFIC will ignore the declarations made.
I note that AFIC had been planning to hold the long overdue Federal Congress meeting on 4-5 June 2022, but gave an undertaking not to do so pending the resolution of this proceeding. As I understand it, that undertaking comes to an end with this decision. Given in particular my conclusion that the Exco was inquorate (and seemingly remains so), it would seem important that the Federal Congress proceed quickly so that new elections of officers may be held.
The plaintiffs raised the possibility of orders being made that the elections of officers of AFIC be conducted and overseen by an independent person approved by the Court. Relatively little argument was directed to the issue. However, counsel for UMNSW stated that "[i]f your Honour finds that there was simply no power in the State Council [sic - the Exco] whatsoever to effect an expulsion, and that couldn't be cured by any body such as the SGM, then I don't think we need a protective order of the nature that I've previously foreshadowed". I have found, amongst other things, that the Exco was not quorate when it made its expulsion decisions. In that context, I am not inclined to order than an election overseer be appointed (assuming that I have the power to make such an order, which it is not necessary to address).
I will allow liberty to apply lest any issue arise with respect to the operation of these orders. That liberty does not mean that any future disputes between these parties, involving new conduct and decisions, can or should be brought within these proceedings.

Parties

Applicant/Plaintiff:

United Muslims New South Wales Inc

Respondent/Defendant:

Australian Federation of Islamic Councils Inc

Legislation Cited (6)

Whether the Associations Incorporation (Model Rules) Regulations 1997(Tas)

Associations Incorporation (Model Rules) Regulations 1997(Tas)

Association Incorporation (Model Rules) Regulations 1997(Tas)

Associations Incorporation Act 1964(Tas)

Evidence Act 1995(NSW)

Associations Incorporation Act 2009(NSW)

Cases Cited (41)

NSWSC 115 Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360 Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc [2016] NSWSC 960 Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212; [2021] HCA 2 Popovic v Tanasijevic [2001] SASC 289 Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167 Ridge v Baldwin [1964] AC 40 Rose v Boxing NSW Inc [2007] NSWSC 20 Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 Twist v Randwick City Council (1976) 136 CLR 106; [1976] HCA 58 United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils [2021] NSWSC 382 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 Young v Cotter [1996] NSWCA 573 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 7th edition, 2022) GE Dal Pont, Law of Associations (LexisNexis, 2018) Herzfeld and Prince's Interpretation (Thomson Reuters, 2nd edn, 2020) Category: Principal judgment Parties: Proceedings 2021/0055621 United Muslims of New South Wales (Plaintiff) Australian Federation of Islamic Councils (Defendant)

[2002] WASC 110

[2001] SASC 289

[1987] HCA 39

(1948) 77 CLR 601

(2004) 220 CLR 1

(1979) 24 ALR 307

(2005) 226 CLR 1

(1999) 48 NSWLR 161

(2015) 255 CLR 135

(2002) 191 ALR 759

(2008) 72 NSWLR 504

(2002) 209 CLR 597