Elmawey v ADL Mosque Islamic STY of SA Inc No. Scgrg-95-2716 Judgment No. S6465
[1997] SASC 6465
•3 December 1997
ELMAWEY, KHALIC & MOHAMMADI v ADELAIDE MOSQUE ISLAMIC SOCIETY OF SOUTH AUSTRALIA INC.
Williams J:
These proceedings have been brought pursuant to s61 of the Associations Incorporation Act by persons who claim to have been oppressed as members of the Defendant Association; in the alternative the Plaintiffs seek a declaration that alterations made to the Defendant’s Rules on 15 August 1995 were void by reason of alleged procedural irregularities leading to the amendments. The proceedings were commenced on 21 December 1995. Section 61 authorises an application by "a member of an association".
The issue to be tried
A preliminary issue has arisen as to the status of the Plaintiffs to bring these proceedings. In essence the question is whether the Plaintiffs are merely adherents of the Mosque (and thereby associated with its religious and cultural activities) or whether (as required by s61 of the Associations Incorporation Act) they have taken up and retained membership of the Defendant Association which administers the affairs of the Mosque and its real estate, provides educational facilities and organises Islamic cultural activities.
By order dated 23 December 1996 a Master directed that the question of the Plaintiffs’ membership of the Defendant Association be tried as a preliminary issue and that matter is now before me. Although there are three Plaintiffs, their counsel informed me that adequate relief could be obtained upon the principal claim if any one or more of the Plaintiffs could establish status to bring the action.
It is not in dispute between the parties that Mr Elmawey (the first Plaintiff) was a member of the Defendant Association on 15 June 1995. The question is whether by virtue of his conduct at a joint meeting of committees on that evening he effectively communicated his resignation from the Society so as thereafter to forfeit his rights of membership. It is not in dispute that he walked out of the meeting after expressing himself in strong terms of disapproval as to the way in which the business before the meeting had been handled. The minute secretary and others present at the meeting attribute to Mr Elmawey a statement that he "resigned from the Society" and the Defendant seeks to hold Mr Elmawey to this statement.
Mr Khalic (the second Plaintiff) submitted an application for membership in February 1995 and submitted two further forms which he signed in June 1995 after he became aware of a difficulty with his first application. The question at issue is whether his participation in the affairs of the Defendant in the light of his formal applications is sufficient to establish membership.
Mr Mohammadi (the third Plaintiff) gave evidence of completing and submitting a membership application form; he claims to have subsequently attended general meetings of the Defendant Association and he asserts that he received notices of meetings. He claims to have participated in the affairs of the Defendant and he points out that his candidature for a casual vacancy as Vice President of the Defendant was canvassed within the Society. The Defendant has no record of Mr Mohammadi’s membership. All matters relied upon by him have been put in issue.
The seeds of dispute
In order to assess the evidence it is necessary to have some understanding of the underlying dispute and its origins. The Defendant’s secretary (Mr Ashraf Choudhry) who gave evidence sees Mr Elmawey and a group with which he is associated as potentially representing "trouble" (or "fitna") if they participate as members in the affairs of the Defendant which is facing a serious problem as regards title to real estate in the locality of the Adelaide Mosque. In this respect the Defendant is in dispute with The Islamic Society of South Australia - (ISSA).
There is also a more general but significant problem of some sensitivity as regards the practice of Islam within the Australian environment; Islamic community leadership (and in particular the influence of the resident Imam) has a central part to play in moulding Islamic opinion upon public interest questions - such as community tolerance of alcohol consumption - and the stance which followers of Islam should take. Differing views within the Adelaide Islamic community as to application of Moslem ideals within a predominantly Western society has led to tensions. In one instance a sermon (or address) given in the Adelaide mosque with the approval of the resident Imam Hamzah has contributed to deterioration in relations between the two factions.
The seeds of dispute were sown in 1980 but the matter came to a head on 15 June 1995 at a meeting of committees of the Defendant.
On 12 August 1995 a special general meeting of the Defendant purported to change the Defendant’s Rules. (The amendment is recited in Part 3 hereof). Stripped of its verbiage this amendment in its effect (arguably) will prevent members or former members of ISSA from obtaining or retaining membership of the Defendant. The amendment will also make it difficult for long standing Moslem residents of South Australia to obtain membership of the Defendant upon the grounds that their applications are "belated". No doubt, this provision or the way in which the rules are being and have been applied in relation to membership applications and the making up of membership lists will be challenged by the Plaintiffs as oppressive - if they have the requisite standing in the proceedings.
The Adelaide Mosque has a long history. It was built in the last century and carries a Heritage classification. The Mosque is built on land (the Mosque land) at 20 - 28 Little Gilbert Street Adelaide and the Defendant has secured a title thereto. Two doors south of the Mosque land (and separated from the Mosque by other land) is a residential property (No.32) - until recently used as the Imam’s house; the title to No.32 Little Gilbert Street is in the name of ISSA. To the east of the Mosque land (and generally adjacent to its eastern boundaries) is No.21 Logan Street - a vacant block of land the title to which is also in the name of ISSA. Immediately to the south of No.21 Logan Street and adjoining it is a block of land - Nos.23-29 Logan Street which is used as a car park to service the Mosque; the land abuts the Mosque land and the title to this land is in the name of the Defendant. The Mosque building itself only occupies a part of the Mosque land and in terms of size is now inadequate to meet the needs of the expanding Islamic community which it serves.
A remarkably generous offer (as it appears) has been made by (Datuk) Mahmud Taib the Chief Minister of Sarawak. Mr Taib himself trained as a lawyer in South Australia and he has retained his interest in this State. As a personal gift Mr Taib wishes to fund a very substantial extension to the existing premises of the Mosque to be used as a Moslem Cultural Centre with religious and civic components. He has rejected some comparatively modest plans for extensions prepared in South Australia. He has expressed the view that those who prepared those plans "tether their camels too short" - that is to say the local plans are too modest. Mr Taib has commissioned architectural plans which take advantage of the vacant land fronting Logan Street - including No.21. However, owing to the fact that No.21 is in a different registered ownership from the land lying to the south and west of it, it is impractical for the time being to proceed with the proposed development of the overall site; this development is estimated to cost some millions of dollars.
Until 1980 the Adelaide Mosque was administered by ISSA and prior to this time No32 Little Gilbert Street was acquired by that Society as a residence for the Imam (the spiritual leader of the community). Number 21 Logan Street was also purchased in the name of ISSA as a vacant block and as a valuable adjunct to the Mosque land.
As a result of a dispute within the Islamic community ISSA withdrew from the Adelaide Mosque and re-established its activities at Marion. The Defendant Society was thereupon formed to take over the administration of the Adelaide Mosque. The cause of the dispute in 1980 does not appear in evidence; the fact of the existence of an unresolved dispute is itself only relevant for the purpose of providing the background.
An umbrella organisation called Australian Federation of Islamic Councils (AFIC) acted in the capacity of a mediator between the two groups which were involved. An agreement was brokered in terms of a document which reads as follows:
"AGREEMENT
An interim period of three months is allocated for the following procedures.
The Adelaide Mosque will be managed by the Islamic Society of Adelaide under the presidentship of Br Islam Saee along with the House of Imam and the block of land behind it.
The South Australian Islamic Society under the presidentship of Br Hamid Farooque will manage its affairs from the Marion Hall, Marion Road, G.P.O. Box 1694.
These two societies will work independantly and no one will interfere in the affairs of others.
Neither group (or its associates) will object to management of properties under the rules of the society which occupies the property as mentioned above."
(This document (Exhibit D40) was produced in about April 1980. The reference to Islamic Society of Adelaide should be read as a reference to an association which was subsequently incorporated as the Defendant; the reference to the South Australian Islamic Society is to The Islamic Society of South Australia).
More recently on 19 April 1981 a further agreement was reached; the copy before me (Exhibit D41) is on AFIC’s letterhead and carries the signatures of the then President of ISSA and the then Secretary of the Defendant. The agreement reads as follows:
"AGREEMENT
That both parties agree to give full support to the Arbiration(sic) committee, appointed by the 1981 AFIC congress, in its endeavour to reach a solution to the South Australian situation, the committee shall consist of
i. Mohamed Khadra (Chairman)
ii. Dr. S. Hussain
iii. Dr. A.C.L. Ameer Ali.
Any solution reached should be based primarily on the principles of Islamic Brotherhood.
The division of Assets in this dispute, which remains the bone of contention between the two parties, will be decided with mutual consultation with both Societies, in the good spirit of Islam. This will be done by the committee after due assement(sic) of the Assets involved, during its visit to Adelaide at a date to be specified by them.
The terms of reference of the said committee are to find a solution to the dispute that exists between the two societies in South Australia consistent with the agreement of 7/4/1980."
(Emphasis added).
This more recent document identifies an issue which remains the "bone of contention" namely the division of assets arising out of the withdrawal of ISSA from Adelaide although retaining the title to the property at No.32 Little Gilbert Street (the Imam’s residence) and the vacant land at No.21 Logan Street. By letter dated 16 February 1988 the President of AFIC "bowed out of" the resolution of the dispute and invited Mr Telavanic as President of the Defendant "to take up the matter directly with ISSA". It is sufficient for present purposes to note that the matter has proved to be insoluble up to the present time despite the efforts of the parties. The matter came close to resolution on 17 July 1994 when representatives of the Defendant and ISSA met. On that occasion Mr Telavanic, Dr Mian, Imam Hamzah and Mr Elmawey were amongst the negotiating committee on behalf of the Defendant. The outcome of that meeting as minuted was that:
"Both Societies agreed to the transfer of the Logan Street block ONLY, pending ratification by the Property Trust Committee of the Islamic Society of S. Australia."
The ratification by the Property Trust Committee was never forthcoming.
The topic was more recently under discussion at a meeting of the Defendant’s committees on 15 June 1995. (See Part 5 of these reasons).
The Defendant Society has now accepted responsibility for administering the religious and civic affairs of the Adelaide Mosque and has provided the appropriate support to the Imam for the time being assigned by the Saudi Government to the Adelaide Mosque. As at June 1995 Imam Hamzah had been in residence at the Adelaide Mosque for some eight years. His appointment was effectively terminated at a meeting of Committees of the Defendant on 15 June 1995. The first Plaintiff was outraged by the manner in which the meeting handled that particular matter and his hot headed response has given rise to the issue which I must determine as to his status.
The Method of Becoming a Member of the Defendant
The Adelaide Mosque Islamic Society of South Australia (the Defendant herein) was incorporated in South Australia under the Associations Incorporations Act 1956 on 2 January 1981 with wide objectives relating to the advancement of Moslem interests in South Australia. Under the rules of the Association all members of the Society form a Jamaat (or General Assembly) and that body administers the affairs of the Society. (The term "Jamaat" is also sometimes used in the evidence to describe the congregation of the Mosque.)
According to the rules, any Moslem adult who has lived in South Australia continuously for at least three months may join the Association. The members are divided (by the rules) into linguistic and cultural groups and each group is entitled to elect a member or members to a Representative Council. The Association also has an Executive Committee (elected by the Jamaat) and a Board of Trustees which is elected by the linguistic and cultural groups. The Executive Committee comprises the President, Vice President, Honorary Secretary, Treasurer and one other member.
In terms of Rule 4(vi):
"Member means a person who profess the religion of Islam, resides in South Australia and joined the Society as laid down in this constitution".
(Emphasis added).
Rule 6 provides:
MEMBERSHIP
PERMANENT MEMBERS:
Any Moslem adult who has lived continuously in South Australia for at least three months may join the society. To be eligible to vote in elections the intended new member should register his name with the secretary of the Society at least three months before the election. Only the registered members are eligible to vote.
[This incorporates an amendment made on 27/3/83].
ASSOCIATE MEMBERS:
The following categories of people may join the Society as Associate Members:
(a) Moslem visitors and persons who lived in South Australia for less than three months;
(b) Non-Moslem spouses and friends of the Moslems who are interested in Islam;
(c) The Associate members shall have no right to vote or hold any office of the Society
No member of the Society should hold membership in any two Islamic Societies of South Australia simultaneously.
Membership should be renewed and registered every alternate year but at least one year before the election of the Executive Committee."
[This includes the amendment of 27/3/83].
Rule 32 provides:
PROCEDURES
Where this constitution does not provide, the detailed relevant procedures shall be worked by the Representative Council in accordance with the laws and generally accepted principles and practices in South Australia. Necessary consultations with relevant bodies and authorities may be held before any decisions taken."
At a meeting of the Representative Council on 7 November 1991 procedures relating to membership were adopted by a resolution which was minuted (Exhibit D49) as follows:
Application form approved.
Forms to be given to who asks for it.
Forms to be lodged with the President/Honorary Secretary.
Members to be accepted if decision is unanimous of the Rep: council, taken under Secret ballot."
The form of membership application as adopted is before me. The application form requires routine personal particulars of the applicant together with a statement of "Which cultural group does he/she belongs to:" There then follows a section in the following terms:
"To be filled in by the applicant
Are you a permanent resident of Australia? ( )YES ( )NO
If ‘yes’, how long you are living in Adelaide ________months/years
Are/Were you a member of any other Islamic Organisation? ( )YES ( )NO
If ‘yes’ (a) Name of the Organisation:__________________________
(b) how long: __________________months/years
Have you served that Organisation in any capacity? ( )YES ( )NO
If ‘yes’ in what capacity:
How long:_________________From_________To_____________
I certify that the above details are correct.
Signature of the applicant:_________________Date_____________
Application should be lodged with the President/Hon.Secretary"
Upon the face of the Defendant’s Rules and in accordance with the Defendant’s practice (as supported by Rule 32) the membership process requires a candidate for membership (together with two sponsors) to complete the application form which is then subject to acceptance by the Representative Council.
This formal process reflects the normal steps of offer and acceptance as discussed by Von Doussa J in Nurses Memorial Centre v Beaumont (1987) 44 SASR 454 at 466-467 and in particular citing New University Club Case (1887) 18 QBD 720. The Association (being an incorporated body) is a legal entity distinct from its members and every member stands in a contractual relationship with the Association.
Putting aside those cases where an estoppel by conduct operates so as to prevent the failure to comply with membership procedures from being relied upon so as to deny membership, I consider that upon the face of the Defendant’s rules a person can only become a member by the process of proposal and acceptance in accordance with the procedure which has been established.
I will defer a more detailed analysis of the requirements until I have examined the factual background of the particular cases which have been placed before me.
The rules and procedures to which I have referred are those which were in force immediately prior to the combined meeting of the Board of Trustees, Representative Council and Executive Committee on 15 June 1995 at which the enrolment of new members was discussed and minuted (Exhibit D57) in the following terms:
"Enrolment of New members and application procedures: After discussion it was decided that in view of our constitution rule That any Moslem who is a member of another Islamic organisation can not be a member of our Society, any one who wants to join our Society must provide a certificate to the effect that he has never been a member of any Islamic organisation. That person should be nominated and seconded by the existing registered members of the Society. Then the application for membership will be considered by the Representative Council and to be agreed upon by all its members present."
(The ‘power of blackball’ - as counsel for the Plaintiff’s called it - is thus vested in each member of the Representative Council as it was also in the resolution of 7 November 1991; whether a general meeting of the Jamaat could over-ride the exercise of such a power on any occasion is an issue which may be left for another day).
On 12 August 1995 amendments to the Defendant’s constitution were approved at a Special General Meeting of the Defendant as set out in Exhibit P30.
Clause 6 was altered to read as follows:-
Membership
Any adult who-
(a) is a citizen or a permanent resident of Australia,
(b) has been continuously resident in South Australia for at least twelve months immediately prior to application for membership, and
(c) is not or has not been a member of any other Islamic/Moslem society or organisation anywhere in South Australia,
may apply for membership of the Society upon the nomination of an existing member which is seconded by another existing member of the same linguistic and cultural group in accordance with clause 8. The representative Council shall consider all such applications for membership and, if it thinks fit, may admit applicants who satisfy the membership qualifications. The decisions of the representative Council shall be final.
Subject to this clause 6, those who are members of the Society at the time of amendments to the Constitution on 12th August 1995 continue to be members of the Society.
The following category of people may apply and be admitted by the representative Council to associate membership of the Society:
(a) Non-Moslem spouses of members.
A member (which for the purposes of this paragraph only includes an associate member) ceases to be member of the society-
(a) if that member ceases to be a Moslem (but so that this provision does not apply to an associate member admitted in accordance with paragraph iii(a) and (b) of this clause);
(b) if that member ceases to be a resident of South Australia;
(c) if that member is or becomes a member of any Islamic/Moslem society or organisation in South Australia;
(d) gives notice of resignation to the Hon. Secretary or announces his resignation at a meeting of the society; and
(e) fails to renew his membership by notification to the Hon. Secretary at any time during the last two months of every alternate year.
Only members of the Society, who have renewed their membership one year before the election of the Executive Committee, are eligible to vote in an election pursuant to the Constitution or at any meeting of the Society.
The belated application for membership by any Moslems, who failed to apply for membership within three years of their residence in South Australia, may not be considered by the Representative Council.
(vii) There shall be an annual membership fee to be determined each year by the A.G.M."
(Emphasis added).
I note in particular the terms of the new rule 6(i)(c) and iv(c) which I have quoted. In Part 2 of these reasons I made comment upon "belated" applications within the new Rule 6(vi).
Whereas previously the rules were expressed in advisory terms as to membership of other Islamic organisations, the new Rule 6 is expressed in much stronger terms.
Whilst membership of ISSA in particular is not mentioned in the new Rule 6 or in its predecessor the Representative Council has applied Rule 6 by treating membership of ISSA as a disqualification from membership of the Defendant. I do not read the rules as in force prior to 12 August 1995 as having that effect.
It seems to me that (prior to 12 August 1995) a person who becomes a member of the Defendant Association can only lose that membership by resignation or by a sufficient display of lack of interest as to amount to an abandonment of membership. In making these remarks I need not consider the steps which a member must take to become entitled on a particular occasion to exercise a vote. Bearing in mind the requirements of Rule 6 as to membership renewals I note that a practice has been established relating to biannual "renewal" of membership and the original admission to membership has been treated as sufficient for the inclusion of a new member on the voting list.
The rules of the Defendant (as they stood prior to 12 August 1995) contain no express provision for resignation. I do not regard a failure to "renew" membership as being equivalent to resignation although a continuing failure to participate in the Society’s affairs may be evidence that the membership has become moribund. The principles relating to resignation from an association are discussed by Megarry J in re Sick and Funeral Society of St. John’s Sunday School, Golcar (1973) 1 Ch51 at 62:
"The question, of course, is not one of expulsion, or of the society snatching at some trivial or short-lived breach of rules by a member to deny him membership: it is a question of a voluntary disregard of the obligations of membership over a continuous period of years. There must be many instances in clubs up and down the country in which this sort of thing happens. Yet if the contentions on behalf of the four members are right, either the society or the members concerned may, if it suits them, claim that the membership is still in being. Such members might find that the society is claiming many years’ arrears of a substantial subscription, or the members might, as here, suddenly reassert their membership when some advantage turns up.
I do not think that this can be right. It seems to me that the answer, or an answer, lies in the decision of the Court of Appeal in Finch v Oake [1896] 1 Ch. 409, which I mentioned in the course of argument. This established that a member of a society has the unilateral right, not dependent on acceptance by the society, to resign his membership at any time, even though the rules contain no provision as to resignation. In that case, the member wrote a letter saying that he desired to withdraw his name as a member of the society, and that was held to be sufficient. There can be no magic in the word "resign", nor in whether the resignation is written or oral. The essence of the matter seems to me to be whether the member has sufficiently manifested his decision to be a member no more. I cannot see why such a manifestation should not be by conduct instead of by words: the only question is whether the member’s decision has been adequately conveyed to the society by words or deeds. In short, in addition to resignation by words, I think there may be resignation by conduct; and I do not see why in a proper case a sufficiency of inertia should not constitute resignation by conduct. The point seems to lack authority, and so I must resolve it on principle.
I am not suggesting that the mere failure to pay weekly subscriptions for a few weeks or quarterly subscriptions for two or three quarters would suffice per se: but three years and more is another matter. No reasonable man is likely to feel any real doubt about the intentions of a member of a society who for over three years has failed to make his weekly or quarterly payments, and has put forward not a word to suggest that this was due to some mistake, or that he has done some acts showing an intention to continue a member. As I have indicated, among the many thousands of clubs and societies in the country there must be many cases of members whose membership has never been terminated in accordance with any provisions in the rules, and yet who are regarded as still being members neither by themselves nor by the club or society. If their membership is said to have "lapsed," that may be another way of describing a tacit resignation. However it is described, it seems right that there should be such a doctrine, so that neither the member nor the club or society should be able to claim against the other on the basis that what has long been dead de facto still lives de jure. A moribund membership ought not to be capable of resurrection.
In the circumstances of this case, I think the four members of the society ceased by tacit resignation to be members well before the end of 1966, so that, in accordance with Finch v. Oake [1896] 1 Ch. 409, they could not thereafter withdraw their resignations; they could become members again only if they joined the society once more, and this did not occur. An alternative basis for reaching the same result is that the four members repudiated their contracts of membership by their prolonged breach of their most important duty of membership, and that the society accepted this repudiation by ceasing to treat them as members. There is nothing to suggest that any demand for their subscriptions was ever made after they ceased to pay them; the evidence points in the opposite direction. What suffices for repudiation may indeed suffice for resignation, with the difference that, unlike repudiation, resignation does not require acceptance. Accordingly, whether by resignation or repudiation, or perhaps an interesting combination of both, I hold that the four respondents in question are not entitled to claim as members.....".
(Emphasis added).
In Finch v Oake [1896] 1 Ch409 at 415 Lindley LJ said:
"The other members have no power to say that he shall not retire, and there is no law that a resignation which cannot be refused must be accepted before it can take effect. If, therefore, a member of this association chooses, even from mere caprice, to retire from it, he can do so at any time without the consent of the other members, and in order that he may become a member again he must be re-elected. I can see no principle of law which entitles him to withdraw his resignation."
(See also per Kay LJ at 416 and A.L. Smith LJ at 417).
In the absence of anything to the contrary required by an association’s rules, resignation is a question of fact based upon a member’s expression of intention in that behalf. That intention may be inferred from conduct - including a long standing lack of involvement (or membership "inertia"). I note the observations of Windeyer J in Marks v Commonwealth (1964) 111 CLR 549 at 570-571-
"......Moreover the word "resignation" is no longer used only for the surrender of an office. It has come to be used for a withdrawal from contractual relationship, such as employment as a servant, or from membership of a club or other voluntary society. A resignation has thus come to be thought of, and spoken of, as a unilateral transaction. For example Lindley L.J., speaking of a resignation by a member of a voluntary association, said:
"The other members have no power to say that he shall not retire, and there is no law that a resignation which cannot be refused must be accepted before it can take effect": Finch v Oake; and see Maitland’s Case. In cases of that sort, expressions such as the tendering and the acceptance of a resignation, although commonly used, are merely linguistic courtesies......"
The Status of the Plaintiff Elmawey
Against this background I examine the position of the first Plaintiff. He is an Australian born Lebanese who for many years has been a successful restauranteur in Adelaide conducting with his family an establishment in Hindley Street Adelaide called ‘Quiet Waters’. Having come to Adelaide as a boy in about 1978 he started attending the Adelaide Mosque from time to time as an adherent and by about 1985 he had become devout. In 1991 he accepted an approach to join the Defendant Association and to become a representative of the Middle Eastern group upon the Defendant’s Representative Council. The first Plaintiff obviously took his responsibilities very seriously. He declined an earlier invitation because he did not then feel "ready" to accept such a role. It is unlikely that the Plaintiff had any real appreciation of the position of the Defendant in the affairs of the Adelaide Mosque until he took up membership of the Defendant and himself assumed management responsibilities.
Mr Elmawey threw himself into the affairs of the Defendant Association and made a significant contribution of time and money and money’s worth. A tenet of his faith expects donations to be made anonymously. I was impressed with the motivation of the first Plaintiff with respect to his involvement and this is reflected generally in my very favourable findings as to his credit. I assessed him to be a man who was genuinely trying to make his contribution to the affairs of his community and was not seeking personal recognition or aggrandisement. He had business experience and resources and he was prepared to make these available to the community associated with the Adelaide Mosque. More importantly, I consider Mr Elmawey to be a person of integrity.
On 15 June 1995 a combined meeting was held of three committees of the Defendant- the Board of Trustees, the Executive and the Representative Council. (Such a meeting is authorised under the Defendant’s rules by Rule 23(vii) - inserted by amendment made on 7 December 1980). The meeting was called by Mr Choudhry as a special meeting and held in the library of the Adelaide Mosque. The minutes which are reproduced in Part 5 of these reasons sufficiently record the course of the meeting except with respect to the alleged resignation of Mr Elmawey. These minutes represent Mr Choudhry’s version of events as minute secretary.
In considering the allegation that Mr Elmawey resigned from the Defendant Association on the evening of 15 June 1995, I am faced with a conflict in evidence. Mr Elmawey asserts that in anger he withdrew from the meeting but denies that he tendered his resignation from the Society.
In evidence Mr Elmawey explained that as the meeting progressed a question was under discussion as to the dismissal of the Imam. Mr Elmawey says that he requested that the Imam be given the opportunity to defend himself but he found no support in the meeting for his point of view. He thought (rightly or wrongly) that those present had made up their minds.
Eventually according to Mr Elmawey he stood up at the meeting; he describes what then followed (T63-64)-
"What I said was ‘this is worse than a Mafia meeting’. I said ‘this is not Islam’. I said ‘I resign from this committee’ and I started walking towards the door. Then Dr Miad [who was presiding] stood up quite angrily and said ‘don’t you call us Mafia, I’ll take you to court’. I said ‘you can take me where you want to take me’, you know, and I proceeded to go out the door. But should I say before I stood up - actually sorry, no. I proceeded out the door. Mustafa [Zetati] and [Khalid Yousef] followed me outside and said ‘Jamil, Jamil’, what are you doing, what are you doing’. I said ‘this is not Islam’. I said ‘how can I sit on a committee meeting like that with people like who are not having the welfare of the Moslem community at large.’ I said "I can’t be involved with a committee like that’, you know, and I walked. I left. I went back to work."
Mr Choudhry was minute secretary and took rough handwritten notes (Exhibit P70) expressed partly in English and partly in his own native tongue - Urdu. When translated from Urdu his note relevantly says "Resignation Jamil". Mr Choudhry also says that he made a note on his copy of the agenda paper to incorporate a report by Dr Mian of a conversation with Mr Elmawey after Dr Mian had followed Elmawey out of the meeting room. The following day (according to Dr Mian) Mr Choudhry spoke to Dr Mian by telephone concerning Mr Elmawey’s actions at the combined meeting; Dr Mian’s evidence of this conversation is as follows:
[Choudhry said to me:]
A. ".... ‘So far as I remember, he resigned from the society, what is your recollection?’, and I said: ‘Yes, he resigned from the society.’
Q. So he suggested to you that his recollection was that Mr Elmawey said that he resigned from the society, correct.
A. Yes."
I find that this conversation took place.
(Although Dr Mian confirmed to Mr Choudhry that Mr Elmawey had resigned "from the Society" he did acknowledge in his evidence some general difficulty at the time of giving evidence in his recollection of events due to the medication which he was taking (T1018). I have brought this fact to account in my assessment of the evidence).
Having obtained support from Dr Mian, Mr Choudhry prepared minutes which were approved at a meeting on 5 September 1995. Mr Choudhry was unable to produce the agenda paper (as abovementioned) containing his note.
The minutes show that twelve persons were present at this meeting including Mr Elmawey, Mr Choudhry (Secretary), Mr Shefik Telavanic (Society President) and Dr Mian. The four persons whom I named gave evidence before me of their recollection of the meeting but the remaining eight were not called and no explanation has been offered for their absence. Bearing in mind the allegiances displayed by those present at the meeting I would have expected most of the persons present at the meeting - other than the first Plaintiff - to be called by the Defendant. (I have used the expression "most of the persons" deliberately. The minutes of the meeting show that one or two others may have had some reservations at various times as to what was happening).
The minutes (Exhibit D57) record the topics of discussion at the meeting - essentially:
The on-going property dispute with ISSA and the means for resolving it - particularly in view of anticipated visits to Adelaide in July 1997 by the Defendant’s would-be benefactor and his own Malaysian Architect.
Enrolment procedure for new members (I have noted the resolution on this topic in Part 2 of these reasons).
The termination of the tenure of Imam Hamzah as resident Imam. A decision was made that a letter be written to the Saudi Ambassador requesting the transfer of Imam Hamzah "somewhere else".
This last mentioned topic generated according to the minutes "heated debate" and a motion (in effect) by Mr Elmawey that Imam Hamzah be heard. It is clear from the evidence that Mr Elmawey was motivated by notions of natural justice in seeking to give the Imam the opportunity to be heard in his own defence; as a South Australian business man Mr Elmaway was obviously sensitive to Australian community standards of fairness.
The minutes record that:
"After decision was taken, Br Jamil [ie the first Plaintiff] stood up in anger and said, "he resigned from the Society and said he will fight to the Society to the end you all acted in collaboration with each other you are worse than Mafia"".
The Defendant called as witnesses three of the persons who were present at the meeting and they gave evidence for all intents and purposes exactly in line with the minutes. These witnesses were Mr Choudhry, Dr Mian and Mr Telavanic. Dr Mian’s evidence was in the following terms (T1019)-
".....then Mr Jamil stood up in anger and he actually thumped on the desk fast and he say ‘I resign from the society. I will pursue this matter to the society to the end. You were acting in collaboration with each other.’ That was his wording ‘and you were worse than Mafia.’ That was the wording he used at that time. Then he was walking over. No-one said anything, but because I was chairing I said ‘Wait a minute. You are telling us that we are acting in collaboration with each other.’"
Despite the weight of the evidence (at least in terms of the number of the three witnesses who said the same thing) I have decided that Mr Elmawey’s evidence should be accepted.
I note that Mr Telavanic could not recall whether Mr Elmawey left the meeting - significantly perhaps that fact is not recorded in the minutes. Mr Telavanic’s evidence is as follows (T946):
"A. ....I remember Jamil, he get up and he start to shout and yell and he said ‘I am resigning from that society from today because you are the worse than Mafia.’
Q. Did he do anything after he said those words.
A. I know he repeated ‘I will fight you until the end in the courts.’
Q. Do you recall anyone else speaking after he spoke.
A. I think Dr Mian, he was speaking and he said ‘That is an offence to us that you call us Mafia. That is defamation.’
Q. Do you recall any other discussion there that night after that.
A. No, I can’t recall.
Q. Do you know when Mr Elmawey left that meeting.
A. I don’t remember that."
Mr Choudhry gave his initial evidence upon the crucial material as to the meeting on 15 June 1995 not from his memory but by reference to the minutes and counsel for the Plaintiff immediately drew my attention thereto (T788-789); this was a matter of importance as I noted at the time. In relation to this I have regard also to the evidence of Dr Mian (T1051-1052) as to Mr Choudhry’s telephone call to check his recollection. Why was this call made? Was there genuine doubt in Mr Choudhry’s mind or was he seeking to reinforce events in Dr Mian’s mind? In my opinion the inference is available that the recollection of the witnesses for the Defendant as to crucial events of 15 June 1995 has a foundation in the minutes of 15 June 1995, which I do not regard as reliable. Putting this aside I could not accept the evidence of Mr Telavanic on this crucial issue bearing in mind his answers to questions in cross-examination designed to test his credit - particularly bearing upon his associations with other Islamic organisations in South Australia. If Mr Telavanic was ill as he claims on the evening of 15 June 1995 (and as the minutes record) then some allowance must be made for that fact. He has acknowledged that he could not remember Mr Elmawey leaving the meeting. I consider that Mr Telavanic was a reluctant participant in what was likely to be a very difficult meeting. I infer that he had no taste for what had to be done. I am prepared to accept that he was under stress on the evening. In this sense he may have been "unwell".
The principal witnesses in this case (including Mr Elmawey) demonstrated some difficulty with the English language and gave evidence with various degrees of fluency. The meeting of 15 June 1995 was conducted in the English language. I have of course made allowance for this in my assessment.
I have been able to reach my decision by accepting Mr Elmawey’s evidence as to his use of language at the meeting on 15 June 1995 in preference to other evidence. However, Mr Elmawey’s presence at this meeting was only as a representative of a particular linguistic and cultural group; he was not there to conduct business on his own account. It seems to me that his resignation as a group representative was a proper topic for him to raise at the meeting. His own personal position is a matter which he might have been asked to pursue with the Defendant’s secretary upon some other occasion. To seize upon an understanding (if it can be so described) of impassioned remarks made in the heat of the moment in a representative capacity is not something which I consider a fair-minded person would do. The witnesses for the defence showed no interest in fleshing out Mr Elmawey’s state of mind after he had cooled down. On the contrary, in my judgment they were more than ready to make whatever they could of the situation which (as they saw it) had played into their hands.
It is of course possible that Mr Elmawey lost control of himself (and his language) more than he realised. Alternatively there is the possibility of a slip of the tongue. If either of these things did happen then Mr Elmawey did not in the language of Megarry J "sufficiently manifest a decision to resign" from the Society.
The meeting of 15 June 1995 was clearly likely to be a difficult one when looked at in prospect. Dr Mian took the chair because Mr Telavanic (the Society President) who should have been in the chair, claimed to be unwell (as the minutes record). Nevertheless he was present at the meeting and Mr Elmawey at least could see nothing wrong with him. Dr Mian is a well educated person and I consider that he was chosen to chair the meeting on this occasion in order to better deal with the exigencies as they might arise. I do not suggest that Dr Mian had any part in making this choice but the inference raised by the cross-examination seems to be a likely explanation for the arrangements made - bearing in mind that the Defendant’s rules made specific provision for the Chair to be occupied by the President, or failing him by the Vice President or in their absence by the Secretary (see Rule 20(vii)).
On Friday 16 June 1995 Mr Elmawey attended the Adelaide Mosque - Friday being of course, the Islamic Holy Day. He addressed the congregation and told them of the happenings of the previous evening concerning the Imam. I am confident that Mr Elmawey’s action on this occasion did nothing to improve his relationship with Mr Telavanic who later brushed Mr Elmawey off when he tried to engage him in conversation. This was of course the time when it might have been useful for Mr Telavanic to test Mr Elmawey’s statement of the previous evening. Mr Elmawey’s actions on 16 June 1995 were not those of a person who had abandoned interest in the affairs of the Mosque.
The Defendant relies upon the evidentiary provisions of the Associations Incorporation Act 1985 to supports its case. As now relevant s51 of that Act provides:
(1) An incorporated association must-
(a) cause minutes of all proceedings of general meetings and of meetings of the committee to be entered in books kept for that purpose; and
(b) cause those minutes to be-
confirmed by the members of the association present at a subsequent meeting; and
signed by the member who presided at the meeting at which the proceedings took place or by the member presiding at the meeting at which the minutes are confirmed.
If a prescribed association fails to comply with subsection (1), the association and any officer of the association who is in default are each guilty of an offence.
Penalty: Division 7 fine.
A minute that is entered, confirmed and signed in accordance with subsection (1) is, in the absence of proof to the contrary, to be accepted as proof of the proceedings to which the minute relates.
Where minutes have been entered, confirmed and signed in accordance with subsection (1), it is to be taken, in the absence of proof to the contrary, that-
(a) the meeting to which the minutes relate was held; and
(b) the proceedings that are recorded in the minutes as having occurred during the meeting occurred; and
(c) all appointments of officers or auditors that are recorded in the minutes as having been made at the meeting were validly made.
........."
In my view despite the production of the relevant minutes relating to the meeting of 15 June 1995 (which were subsequently confirmed and signed in accordance with s51) I consider that there is sworn evidence of Mr Elmawey which I accept as "proof to the contrary" within s51(4).
After 15 June 1995 Mr Elmawey was prepared to be gracious and in retrospect regretted his impetuous action in withdrawing from the meeting. He canvassed with Mr Telavanic the possibility that he might re-apply for membership and thereby eat humble pie. In retrospect, as a matter of law he was wise not to lodge a new membership application; if he had submitted a membership application he would probably have been estopped from maintaining his status as a member for the purposes of the present action. In dealing with Mr Khalic (the second Plaintiff) I have discussed the effect in law of an application for membership upon any earlier inconsistent claim of membership. I have no doubt that in view of the power of blackball available to each member of the Representative Council Mr Elmawey could have expected that any further application by him for membership would have been rejected. Both Mr Telavanic and Mr Choudhry when tested in cross-examination as to their respective attitudes gave evidence that it was "up to the Representative Council" to decide upon any membership application which Mr Elmawey might pursue. I have little doubt that one or other of those two men might be expected to oppose his candidature and thereby defeat a unanimous decision in favour of Mr Elmawey. I do not treat Mr Elmawey’s overtures to Mr Telavanic regarding the possibility of his reinstatement in membership as being in any way to the discredit of the first Plaintiff. I was unimpressed by the common approach of Mr Telavanic and Mr Choudhry to the possibility of Mr Elmawey resuming his place in the affairs of the Defendant. Indeed they would see him as disqualified from membership by virtue of his perceived associations with ISSA - which were never in fact established.
The Minutes of 15 June 1995
Although I reject the accuracy of the minutes of the meeting of 15 June 1995 insofar as they deal with the resignation of (Brother) Jamil Elmawey, they are in other respects useful. I have already summarised the essence of these minutes as now relevant but a reading of the text of the document itself provides the basis for an appreciation of the flavour of what occurred at the meeting. The terms of the minutes are as follows:
"Minutes of the joint meeting of Board of Trustee, Rep: council and Executive Committee held in Mosque on Thursday 15/6/95.
Present: Brs Shefik, Dr Amzad Mian, Dzafar Dzeladim, Sheref Baquiri, Mustapha Zetati, Jamil Elmaway, Khalid A Yousef, Ekrem Miraseija, Dr A.K.M. Rafiqul Islam, Zair Bakiri, Farid Aj Ismail and Ashraf Choudhry
Br Shefik Telavanic being ill expressed his inability to preside The meeting and proposed The name of Br Dr A.H. Mian (Anzad Hassain Mian) to chair the meeting which is unanimously agreed.
Minutes of Previous Meeting:
Minutes of the last meeting passed unanimously as proposed by Br Shefik and seconded by Br Farid.
Matter arising from The minutes:
In reply to Br Jamil’s enquiry Br Shefik told that Br Tayeli Mahmood Chief Minister of Sarawak, Malaysia, due to his heavy schedule could not see any one from our Executive during his last visit to Adelaide. However he will again be visiting Adelaide on 7-7-95 to be followed by Br Hyaz Kostieri an Architect from Malaysia on 13-7-95 and there is a chance That They may see some of The members of The Committee. Br Shefik also informed that The Moslem graveyard at McLaren Vale has been surveyed and 100 (hundred) graves marked and according to news report of The Advertiser of Monday 5-6-95, SA Parliament has enacted a law allowing The Moslems to burry Their deads without wooden coffin as practiced by The Moslems.
A letter from the Marion centre asking our Executive Committee to meet Them on Saturday 17-6-95 at 4pm was tabled by The Honorary Secretary. A long deliberation took place. On view of the past experience with The Marion centre people it was decided to write back to The Secretary of The ISSA (Marion centre) stating That instead of having another meeting between The Two Executive Committees, it is more suitable to appoint independent arbitrators whose decision will be final and legally binding on both societies. Each Society will nominate one honest and respectable person from amongst Them, who in turn will opt for one independent arbitrator from outside to chair the deliberation. These Three will form The Arbitration Panel and both The Societies should put forward Their case to settle The long standing dispute of division of assets of Pre-divided Islamic Society of SA. Proposed by Br Ahsraf and seconded by Br Shefik. Motion passed with one abstention. Br Jamil’s motion of meeting The Marion committee on The proposed date on The basis of our own agenda but based on Their proposal to be divided with Three Groups as (1) Land Transfer, (2) Youth and Women Affairs (3) Halal Meat business. To be discussed in Three different meetings of considerable intervals. Although initially seconded by Br Mustapha he withdrew his support. As a result motion was lapsed due to lack of a seconder.
Enrolment of New members and application procedures: After discussion it was decided That in view of our constitution rule That any Moslem who is a member of another Islamic organisation can not be a member of our Society, any one who wants to join our Society must provide a certificate to The effect That he has never been a member of any Islamic organisation. That person should be nominated and and seconded by The same Group’s existing registered members of the the Society. Then the application for membership will be considered by The Representative Council and to be agreed upon by all its members present.
Passed with one abstention and one against.
Visit of The Religious Attachee Br Waleed Al-Khamees of The Saudi Embassy Canberra to Adelaide and Imam Hamzah’s attitude towards his duties:
Brs Shefik, Ashraf and Khalid reported on the visit of Br Waleed, and Their subsequent meeting with him. It is Transpired from Their Talk That Br Waleed, despite providing all sorts of information by Them was not only unhelpful to resolve The problem of Imam Hamzah, rather he wanted to impose the later against The recommendation of The Executive Committee members. Imam Hamzah’s attitude also appeared to be Very questionable and belligerent towards the Committee. After Br Waleed’s visit Imam Hamzah even telling The people That he can remove The Executive Committee overnight. After a heated debate, particularly by one member, a motion proposed by Br Ashraf and seconded by Br Shefik it was decided that a letter be written to Saudi Ambassador stating all the facts and events and in view of Imam Hamzah’s repeated failure to perform his duties and interference in committee affairs etc be requested to Transfer Imam Hamzah somewhere else. As we have now enough money to appoint our own Imam. He should also be thanked for his kind help.
Motion carried Two against and one abstention.
The motion That Imam Hamzah be called upon to explain his conduct to The joint meeting was rejected
After decision was Taken, Br Jamil stood up in anger and said, "he resigned from The Society and said he will fight to The Society to The end you all acted in collaboration with each other you are worse Than Mafia."
Meeting closed,
Approved unanimously
[signature Dr Mian] C.M. Ashraf, Honry=Secretary
5/9/95"
6. The Status of the Plaintiff Mohammadi
It is convenient to examine the position of the third Plaintiff before discussing the position of the second Plaintiff, Mr Khalic.
Mr Mohammadi married his wife in 1991 and some time after this (probably 1992) she helped him to fill out an application form for membership of the Defendant. It was completed and left with an officer of the Defendant.
Since that time there is evidence of Mr Mohammadi’s participation in the affairs of the Defendant and he has been treated by the Defendant as if he were a member. Mr Mohammadi has received the notices of meetings of the Defendant (and in particular the notice of the 1994 Annual General Meeting).
He started attending meetings of the Defendant shortly after submitting his membership application. He gave a description of the events as they occurred at the 1994 Annual General Meeting at which he voted upon the business before the meeting. By repute he was treated as a member of the Defendant; this is evidenced by his nomination by the Imam as a Vice-President to replace Mr Wahabzada. Upon my reading of the Rules, the Imam himself at that time ex officio was probably not a member of the Society.
However, the fact that Mr Mohammadi’s name was before a meeting for consideration as Vice President (albeit at the instigation of the Imam) is not irrelevant to my assessment of his involvement in the affairs of the Defendant with the concurrence of those in authority.
When the Imam proposed in private conversation to the President and Secretary that he would like to see Mr Mohammadi as an office holder the response was "No Afghans here, no Turkish here, no Arabs here".
This again provides some insight into Mr Mohammadi’s reputed standing as a member. I accept the Imam’s version of the gist of this conversation; in particular I accept that in the context of a discussion as to the suitability of Mr Mohammadi as an office holder the President and Secretary did not question Mr Mohammadi’s membership of the Defendant as relevant to his suitability for office.
The present case is to be distinguished from cases such as Woodford v Smith (1970) 1 WLR 806 where in relation to an association, membership of an individual (who was otherwise eligible) took effect upon the lodgment of a completed form of application together with the requisite fee - without any process of election. (In that case the evidence established that the committee was seeking to exclude a faction from membership). There are cases where an association has a standing offer of membership which may be accepted by intending members; this is not such a case. In my view, in the light of the Defendant’s Rules and in the absence of an estoppel, Mr Mohammadi is required to establish his membership by reference to the records of the association or by proving that his application for membership was accepted. However, the practice of the Defendant (as recited below) is not irrelevant in reaching a decision as to what took place in the administration of the Defendant’s affairs.
The evidence upon which I act in reaching my conclusions as to Mr Mohammadi’s status is not strong but I have decided that it is sufficient to discharge the onus of proof which Mr Mohammadi carries to establish his membership status upon the balance of probabilities. In summary, the evidence tending to show that Mr Mohammadi became a member of the Defendant is:
(a) the fact that he completed the membership application and forwarded it to an officer of the Defendant.
(b) the fact that thereafter he received notice of meetings by post.
(c) the fact that he attended meetings of the Defendant and participated in the business of the Defendant without challenge.
This evidence is to be considered in the light of the practice of the Defendant as to admission of new members; Mr Choudhry (T866-867) explained the practice in answers to my questioning:
"HIS HONOUR:
Q. Mr Choudhry, what was the practice of your society. When you received an application for membership and it was approved by the representative council. Was there some step taken to tell the applicant that they had become a member.
A. Not in writing your Honour.
Q. Then how would the applicant know whether or not the application had been successful.
A. If somebody asked we would tell him. If they give us a form, they should ask us because those who are rejected we send them the letter.
Q. So you send a letter to those that are rejected.
A. That’s right.
Q. Then for the others, they might just come along and start taking part in the affairs of the society without anyone having actually said anything to them.
A. Yes your Honour.
Q. Or alternatively the applicant might have made an enquiry and then been told verbally that they have been accepted.
A. Yes, some know some not accepted. We tell them too."
(Emphasis added).
There is in this case no suggestion that Mr Mohammadi was notified of any rejection of his application for membership. However his name did not appear in the Defendant’s membership records. That fact - which of course is important - must be brought to account in the knowledge that it was also the practice for the Defendant to expunge names from the membership lists when the member failed to "renew" membership biannually in accordance with a procedure which Mr Choudhry detailed in his evidence. The procedure to require renewal of membership was not widely publicised. It was administered in a way which was selective.
Bearing in mind my conclusion that renewal was not essential to retain membership status (as opposed to voting rights) the absence of Mr Mohammadi’s name from the membership records cannot have the same evidentiary force as it would if the records were kept in a less partisan fashion.
Mr Choudhry demonstrated by his answers that he had no particular interest in building up the membership numbers but on the other hand he could be vigilant (at least selectively) in taking steps to exclude from membership those who defaulted (as he saw it) in complying with the stringent practice requirements for the renewal of membership.
Mr Choudhry’s attitude towards membership is reflected in the following exchange (T835-836).
"Q. Mr Choudhry, you said when you were asked some questions in-chief by my learned friend that you wanted to encourage a growth in the membership of the society at all times as secretary, is that right.
A. Beg your pardon.
Q. You wanted to encourage growth, increases in numbers, in the membership.
A. It’s not my duty.
Q. But that was something that was desirable.
A. For what purpose?
Q. Well, the more members you have in the society, the stronger the society perhaps.
A. The non members have the same facilities - have available the same facilities as what the members have, except the right to vote.
Q. That’s an interesting concept Mr Choudhry, that was your view, was it.
A. Yes.
Q. That the only advantage of being on the membership roll was that it gave you the right to vote.
A. If people don’t want to become member, why should I force them to become a member.
Q. Yes, but I just want to take that up with you, following on from your answer that the only advantage of being on the membership role was to give you the right to vote.
A. Yes, if they want to become a member, yes.
Q. Can you answer that, yes or no.
A. Yes, if they want to become a member they have a right, yes.
Q. And otherwise any member of the Jamaat, could enjoy the benefits of the mosque premises.
A. Yes, members of the other societies, non-members, all have the same right."
The circumstances outlined by Mr Choudhry’s evidence demonstrated (see for example T831) how his revision of the membership lists saw a stark reduction in members of the Middle Eastern Group.
On two occasions there was a general revision of the membership list the first being between 1991 and 1994 and a further revision between 1995 and 1996. Mr Choudhry’s evidence was as follows (on pp894-5):
"Q. Then there was a revision between 1991 and 1994.
A. Yes.
Q. And some new members added during that period as well.
A. Only a few.
Q. Very few, but a number, and then there was another revision between ’95 and ’96.
A. Yes.
Q. And people like Mr Tarek Elmawey and Mr Ahmed Ali who were members in 1993 were not included in the 1995/1996 revision because they hadn’t renewed their membership.
A. Yes.
Q. Is that correct.
A. Yes.
Q. And a lot of others fell into that category.
A. Yes.
Q. As secretary, was that something that concerned you, that apparently good members hadn’t renewed.
A. Why should it concern me, first of all, when the people can avail the whole facility. It is up to the man concerned; does he has an interest to become a member or take part in any affairs of the society, or he just wants to come and pray or to join with the social gathering and he wants to go. There’s no ban on anyone.
Q. Was that your view, that as they could come and join in whether they were members or not it wasn’t important whether they renewed their membership.
A. Sorry, you will realise from this Mr Moraby brought 79 to 80 members. We requested him to nominate two people, one on the representative council, one on the board of trustees. What is the use of those 79 or 80 people when he cannot give two people to work something for the society? They’re useless.
Q. Does it concern you that the number of registered members in 1995 to 1996 was falling off, if you like, falling off dramatically.
A. People don’t concern, they don’t want - first of all, now they are 15, 16 other Islamic societies. Some people join there formed their own societies. Some people went interstate. Some people don’t want to join any society. So different circumstances, they have come down to that. Why should we worry?"
Mr Choudhry also explained how he "automatically"(T833) took names off the membership list if the renewal procedure was not followed. However, his cross-examination demonstrated that this practice (without apparent reason) was not consistently followed in all cases. (It was common ground that the first Plaintiff had not "renewed" but that he was still treated as a member. Mr Elmawey’s vigorous and continuing activity of course amply demonstrated that his interest as a member had not become moribund).
Bearing in mind that Mr Mohammadi must prove his case upon the balance of probabilities I have decided that Mr Mohammadi has established his status as a member of the Defendant. In reaching this conclusion, I should place on record that I regard Mr Mohammadi and his wife as witnesses of the truth who gave reliable evidence.
7. The Status of the Plaintiff Khalic
Mr Khalic made application for membership of the Defendant in February 1995. He had some difficulty in obtaining the membership application form from Mr Choudhry. Having filled out the form Mr Khalic gave it to Mr Wahabzada to pass on to Mr Choudhry. He was told by Imam Hamzah in June 1995 that Mr Choudhry had rejected the application. He filled out two further membership applications dated 21 and 26 June 1995 and these were submitted in July 1995.
It seems that by February 1995 Mr Choudhry had reached the conclusion that Mr Khalic had an association with ISSA (T904). I am satisfied that by reason of that fact Mr Khalic’s applications for membership were rejected by Mr Choudhry. There is no evidence that his applications for membership were ever dealt with by the Defendant apart from being administratively rejected by Mr Choudhry as part of his preliminary scrutiny of applications.
There is evidence that Mr Khalic was present at the Annual General Meeting of the Defendant in April 1995 (T911). He had also been very active in relation to a project for building development in relation to the Adelaide Mosque. He paid fees to the council out of his own pocket in connection with a Building application and he was pushing the project quite hard. He attended a meeting on 8 July 1995 at the Hilton Hotel with Mr Taib. Mr Khalic maintains that his actions were taken voluntarily as an interested and committed member of the Mosque community. Mr Khalic is a builder by occupation and the case for the Defendant is that Mr Khalic’s conduct is consistent with one who is looking for business. I am not persuaded that the Defendant is correct in attributing base motives to Mr Khalic.
However, at the end of the day I consider that Mr Khalic’s actions are consistent with the conduct of a builder who is seeking to advance his business interests; in particular his presence at the Annual General Meeting of 1995 is explicable upon this basis.
Mr Khalic relies upon the fact of his association with the Defendant and its members as sufficient to establish his membership of the Defendant. He provided full particulars by way of pleading in support of his claim. I am prepared to find as proved each of the facts so alleged but for the reasons which I have already given I consider that evidence of acceptance by the Defendant of an applicant’s membership application is necessary. I consider that the acts and circumstances relied upon by Mr Khalic are equivocal in terms of their evidentiary value.
Whilst there is some superficial similarity between the evidence proffered on behalf of Mr Khalic and Mr Mohammadi respectively, the real thrust of evidence is different in each case. I am prepared to find that Mr Choudhry never submitted Mr Khalic’s applications to the Representative Council but I do not so find in the case of Mr Mohammadi. I consider that Mr Mohammadi’s attendance at an Annual General Meeting (in the light of the Defendant’s practices) is referable only to membership whereas Mr Khalic’s attendance at an Annual General Meeting must be considered in the light of his activities as a builder. There is no doubt that Mr Khalic was very supportive of the Mosque and its activities but the question at issue is whether there is evidence that the Defendant accepted any of his membership applications in 1995. Mr Khalic as Plaintiff carries the onus of proof. I am not satisfied upon the balance of probabilities that Mr Khalic has established his membership.
There is a further problem standing in Mr Khalic’s path. In submitting his two later applications for membership dated June 1995, Mr Khalic must be taken to have accepted that he was not then a member in terms of his earlier application in February 1995. An estoppel operates in terms of the principle identified by Bray CJ in R v Industrial Court of South Australia ex parte GMH (Gnaetenko’s case) (1975) 10 SASR 582 at 586:
"By making the application, alleging in terms like those of the present application that he has been dismissed, the respondent has also, it seems to me, accepted the position that his employment has been terminated albeit perhaps wrongfully."
There must have been a growing awareness in the mind of Mr Khalic that the path of his successive applications was not smooth.
8. The Ambit of the Evidence
The evidence touched upon a wide range of topics about which I intend to make only passing mention. Feelings are running high in the Islamic community and I have only determined the preliminary question of status of each of the Plaintiffs. Much of the evidence before me is only of marginal relevance at the present but may be expected to bear upon the issues yet to be determined. Accordingly, although I have closely examined the evidence to date (including the numerous exhibits), I think that it is in the interests of justice that I do not make findings on topics where the evidence may be incomplete.
The view was advanced on behalf of the defence that membership of ISSA was incompatible with membership of the Defendant. The rules of the Defendant of course, do not in this respect mention ISSA by name. The rules (until Rule 6 was altered on 12 August 1995) merely state that no member of the Society should hold membership in any two Islamic societies of South Australia simultaneously. This rule has been interpreted by some members of the defendant’s executive as preventing members of ISSA from becoming members of the Defendant. However, there was a great deal of evidence designed to show that Mr Telavanic had close connections with a number of Islamic societies - apparently in breach of the spirit and letter of the rules as interpreted by the Defendant’s executive. This then led on to an issue where counsel sought to explore the nature of the various societies with which Mr Telavanic was connected. It was the subject of public comment by Imam Hamzah in the Mosque on 25 August 1995.
I need not pursue this issue in dealing with the preliminary point. However, the material was useful in assessing credit. I have made some specific findings as to credit where that has been necessary but otherwise I have sought to leave open the issues which properly ought to be dealt with at a resumed hearing.
During final addresses, counsel for the Defendant canvassed the possibility that a group of people associated with ISSA was endeavouring to "infiltrate" the Defendant’s membership with a view, perhaps, to destabilising the Defendant. It was also suggested that as part of this process a number of applicants for membership (including Mr Khalic) had hidden their associations with ISSA or had failed to declare their cultural or ethical connections as required by the form of membership application. Counsel for the Defendant claimed that this last mentioned declaration was necessary in order to facilitate governance of the Defendant by a Representative Council in terms of the Defendant’s Rules. The manner in which Mr Khalic had completed his various membership applications was the expressed basis of Mr Choudhry’s justification in evidence for his manner of treatment of Mr Khalic’s applications. I am not at present required to examine the circumstances in which the Defendant has received and rejected a rash of membership applications. There was certainly material to found a basis for counsel’s comment.
9 A Need to Reflect
Mr Telavanic and Mr Choudhry have each given long service to the Islamic Community in Australia. Mr Telavanic has been prepared to put his own assets at risk when there has been a perceived community need. These men have anticipated the dangers which they see lying ahead for Islamic minority interests in this State unless social issues are handled carefully. They can see the inherent difficulties in being too inflexible in the application of ideals and the need for care in the public statements of community leaders (particularly from the Pulpit). Their record of service speaks for itself. Unfortunately they are out of step with another group which also in its own way appears genuinely trying to serve the Islamic community. My decision in this case should in no way support or condemn upon one point of view or the other.
The objects of the Defendant Association are in furtherance of the teachings of Islam and the standards of conduct thereby demanded. I draw attention to the following particular objects:
To promote and maintain unity and friendship among the Moslems and to cultivate the spirit of mutual understanding and co-operation between Moslems and non-Moslems living in South Australia
To ensure that practical steps are taken to advance progress and security in moral, social, cultural and economic life of the Moslems of South Australia with the object of enabling them to attain and maintain their rightful and honoured place amongst the other communities of South Australia and make their full contribution towards peace prosperity and progress of Australia in general and South Australia in particular."
Differing approaches to the attainment of these ideals is now causing difficulty.
If those who are interested in the underlying issues cannot resolve these problems of public interest then I suggest that they should seek to bring all aspects of the matter before the Court at the one time. Arguably upon the evidence to date, the underlying dispute extends to the administration of a charitable trust established for the benefit of the local Islamic community in respect of real estate in the vicinity of the Adelaide Mosque. On the one hand the Defendant is interested in seeking control of that property for community use but on the other hand by its rules has proscribed a wider community involvement in the exercise of that control. If the contention of the Defendant’s counsel be correct then members of that proscribed group are seeking to infiltrate the Defendant’s affairs - presumably to wrest control. (The proscribed group to which I refer comprises of course the adherents of ISSA and those who have been "belated" in taking up membership of the Defendant.) A form of mediation by Mr John Kiosogolous of the AAT has been unsuccessful. I would therefore encourage the issues to be brought before the Court for resolution. I point out that the Court has its own mediation procedures.
Summary
In summary my decision is as follows:
Mr Elmawey in his outburst of anger did not sufficiently manifest a decision to resign from the Society. He remains a member.
Bearing in mind the practice of the Defendant, the evidence upon balance establishes that Mr Mohammadi must have joined the Defendant in accordance with the ordinary process whereby he submitted a membership application which was subsequently accepted. He is a member of the Defendant.
Mr Khalic applied for membership in terms of his applications in June 1995. He must have accepted that at that time he was not a member of the Defendant despite an earlier application in February 1995. The material relied upon to establish his membership is equivocal in its effect. It has not been demonstrated that Mr Khalic has ever become a member of the Defendant.
Formal orders
Upon the issue raised by the Master’s order I determine that the first Plaintiff (Mr Elmawey) and the third Plaintiff (Mr Mohammadi) were members of the Defendant Association at the date of commencement of this action and have standing as members for the purposes of proceedings pursuant to s61 of the Associations Incorporation Act. I further determine that it has not been proved that the second Plaintiff, Mr Khalic has such standing. Orders will be made accordingly. I will hear the parties upon the question of costs.
0
3
0