Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery

[2007] NSWSC 1425

CITATION:	Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1425
HEARING DATE(S):	5 November 2007
JUDGMENT DATE :	5 November 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Refuse to make order for separate decision of questions at this stage.
CATCHWORDS:	PROCEDURE [107] – Supreme Court procedure – Practice under Supreme Court rules – Separate decision of questions – When appropriate.
LEGISLATION CITED:	Associations Incorporation Act 1984
CASES CITED:	Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 RSL Veterans’ Retirement Villages Ltd v NSW Minister For Lands [2006] NSWSC 112 Silvia v Commissioner of Taxation [1999] NSWSC 299 Tepko Pty Limited v Water Board (2001) 206 CLR 1
PARTIES:	Islamic Association of Western Suburbs Sydney Incorporated (P1) Australian Islamic College of Sydney (P2) Ghulam Akbar Khan (P3) Shakil Syed (P4) Abdul Jabbar Khan (P5) Shabbir Khan (P6) Naeem-ul-Haq (P7) Nazir Ahamed (P8) Tariq Aziz (P9) Kamaran Khan (P10) Shahid Khan (P11) Imtiaz Khan (P12) Faisal Temuri (P13) Tariq Naveed Khan (P14) Shamsu Din Shah (P15 Muammer Ceviker (P16) Hafizur Rahman Khan Survery (D1) Abbas Chelat (D2) Aijaz Ahmed Khan (D3) Shujaullah Kirmani (D4) Qamer A Khan (D5) Zaheer Shah Khan (D6) Mohammad Akram (D7) Gulam Q Siddiqui (D8)
FILE NUMBER(S):	SC 6109/05
COUNSEL:	R R I Harper SC (Ps) J C Kelly SC & N A Confos (Ds)
SOLICITORS:	Dominic Stamfords (Ps) Spanko Soulos & Co (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 5 NOVEMBER 2007

6109/05 ISLAMIC ASSOCIATION OF WESTERN SUBURBS SYDNEY INCORPORATED & ORS v DR H R K SURVERY & ORS

JUDGMENT

1 HIS HONOUR: In contest before me has been a notice of motion for the separate decision of questions in these proceedings. The proceedings are complex proceedings concerning the affairs of the first and second plaintiffs. The first plaintiff, Islamic Association of Western Suburbs Sydney Incorporated, is an association incorporated under the Associations Incorporation Act 1984. The second plaintiff, Australian Islamic College of Sydney, is a company limited by guarantee incorporated under the companies legislation.

2 The first plaintiff has an overall responsibility for the conduct of both a mosque and an Islamic school at Rooty Hill. The second plaintiff is the body which directly conducts the school. There are particularly complicated constitutional problems arising in relation to both bodies. The proceedings are fixed for trial before me for some time divided into separate periods. The trial is to commence on 21 November 2007.

3 The plaintiffs ask for the decision separately and before other questions of the following questions in the proceedings as set out in its notice of motion:

“2 Pursuant to Part 28 rule 2 an order that there be determined separately and before any other questions in the proceedings, the following questions:

2.1 Whether the document or documents, or some of them, certified as held at the Registry of Co-operatives & Associations in relation to the First Plaintiff comprise the Constitution and Rules of First Plaintiff, and if only some, which ones.
2.2 Depending on the answer to 2.1, whether another document or other documents comprise the Constitution and Rules of the First Plaintiff, and if so, which document or documents.
2.3 Depending on the answer to 2.1 and 2.2, whether:-

(a) the group called ‘Foundation Members’, or
(b) the body called the ‘Standing Committee’
may validly exercise any powers or functions in relation to the First Plaintiff, pursuant to the Constitution and Rules of the First Plaintiff, as determined by the Court in answering 2.1 and 2.2 above.
2.4 Depending on the answer to 2.1, 2.2 and 2.3 whether the purported grant of powers or functions to:-
(a) the group called ‘Foundation Members’, or
(b) the body called the ‘Standing Committee’
pursuant to the Constitution and Rules of the First Plaintiff, as determined by the Court in answering 2.1 and 2.2 above,
(c) wholly invalidates the said Constitution and Rules, such that the ‘Model Rules’ set out in Schedule 1 to the Associations Incorporation Regulation 1999, apply in relation to the First Plaintiff, or
(d) party invalidates the said Constitution and Rules, such that some parts may be severed allowing the balance to operate, or the ‘Model Rules’ apply in part, in relation to the First Plaintiff.
………

4 Pursuant to Part 28 rule 2 an order that there be determined separately and before any other questions in the proceedings, except those set out in 2 above, the following questions:

4.1 Whether the document lodged with the Australian Securities Commission ID No 14634572 in relation to the Second Plaintiff comprises the Constitution of the Second Plaintiff.
4.2 If the answer to 4.1 is ‘No’, whether any other document or documents comprise the Constitution of the Second Plaintiff, and if so, which document or documents.
4.3 If the answer to 4.1 is ‘No’, and depending on the answer to 4.2, whether:-
(a) the group called ‘Foundation Members’, or
(b) the body called the ‘Standing Committee’
(c) the body called the ‘Council’
may validly exercise any powers or functions in relation to the Second Plaintiff, pursuant to the Constitution of the Second Plaintiff, as determined by the Court in answering 4.1 and 4.2 above.
4.4 Depending on the answer to 4.1, 4.2 and 4.3, whether the purported grant of powers or functions to:-
(a) the group called ‘Foundation Members’, or
(b) the body called the ‘Standing Committee’
(c) the body called the ‘Council’
pursuant to the Constitution of the Second Plaintiff, as determined by the Court in answering 4.1 and 4.2 above, invalidates the said Constitution” [sic]

A perusal of those questions shows something of the complexity of the proceedings, reflected in the complexity of the questions themselves. The determination of the separate questions is earnestly asked for by Mr Harper, of Senior Counsel for the plaintiffs, and is equally earnestly opposed by Mr John Kelly, of Senior Counsel for the defendants.

4 The appellate approach to the separate decision of questions has in general terms been to counsel caution in making such orders. In Tepko Pty Limited v Water Board (2001) 206 CLR 1, in a joint judgment, Kirby and Callinan JJ said at [168], [170]:

“The attractions of trials of issues, rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
………
Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.”

5 That in general terms is the approach that I have taken in dealing with applications of this sort: see Silvia v Commissioner of Taxation [1999] NSWSC 299; RSL Veterans’ Retirement Villages Ltd v NSW Minister For Lands [2006] NSWSC 112. In the latter case at [6], [7] I said:

“[6] It appears to me that the case is likely to achieve an earlier complete resolution by refusing the motion than by dividing the case into two parts for separate decision ...

[7] In addition, I should refer to the inherent danger that constantly surfaces in divided cases. First, it may be that some more of the evidence is relevant to the construction point than Miss Pepper for the Attorney General suggests. If so, that evidence will have to be traversed twice if the case is divided. Secondly, all sorts of unforeseen matter arises at divided trials and if there is an unforeseen overlap, that means that the trial should have been kept whole.”

6 This does not mean that there are not cases where separate trials are appropriate, for instance, where a simple question on limited facts will determine the whole of the proceedings or where there are other considerations that point to the Court taking some of the risks involved in separate trials because of the dictates of justice. I myself divided one very long case for trial on separate questions where this involved risks, but to keep the proceedings whole would have compelled one party only incidentally involved to sit out a very long trial, which could be avoided by separating questions out.

7 My brother Brereton has recently urged boldness in appropriate circumstances, stating that the Court should now take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously. His Honour did so where he formed the view that the interests of justice were better served by proceeding to determine the questions separately: see Integral Home Loans Pty Ltd v Interstar Wholesale Finances Pty Ltd [2006] NSWSC 1464 at [5], [6].

8 I have carefully perused the questions put forward for separate decision by Mr Harper. The complications in the statement of the questions in my view themselves bespeak caution in ordering separate questions to be determined. Furthermore, a traverse of facts over a long period of time in the history of the two organisations will be necessitated by the issues in the case.

9 It may well be, as Mr Kelly put to me, that issues of credit will be involved. Certainly findings of fact will be involved in determining the proposed questions. Some of these will involve events at and the recording of meetings many years in the past, some of them as long as 24 years ago. Memories have faded as to many of these events and a quick conspectus during the course of the hearing of this motion shows that there are imprecisions and other defects in the recording of the many meetings that have taken place over the years.

10 Perhaps, however, the single matter that weighs most against the ordering of separate questions is that one of the alternative bases on which the plaintiffs argue for their version of the first plaintiff’s constitution is a basis of estoppel by convention, which involves an examination of the behaviour of the various parties to the proceedings in the conduct of the first plaintiff over a period of many years. The argument that an estoppel by convention can be effective in such circumstances is novel, though not an entirely impossible one, but one thing is certain. That is that it involves an examination of the conduct of the first plaintiff and its members over the whole period in question.

11 This matter is not expressly raised in the eight questions that I have set out above. However, the situation is that, if this matter is to be in any way determined at the first hearing that is asked for, the whole of the factual material in the case will in essence need to be traversed. If it is not in any way to be raised and determined in the first hearing, then there will not be a clear and final decision as to the constitutional questions that underlie the case, because, even if the purely constructional questions involved are determined, the constitutional position will not have been finally established. In any event, it seems to me that, even in relation to what I have just called the purely constructional questions, surrounding facts may well need to be traversed and determined in order to determine the questions of construction.

12 In all the circumstances, I certainly do not think it is sufficiently clear that a separate decision of the questions would be beneficial for me to make such an order.

13 I do not propose to dismiss the plaintiffs' motion out of hand, since it seems to me that at some stage during the comparatively complex trial, if the factual situation becomes clearer, it may appear that the determination of some questions before others may have a benefit. I do not at the moment see with clarity what that benefit may be and whether following that course would better serve the interests of justice.

14 The course that I propose to follow at this stage is that I should refuse to make any order for the separate determination of questions. I stand the plaintiffs’ motion of 25 October 2007 over to the commencement of the trial on 21 November 2007. The parties need to prepare to litigate the whole gamut of issues during the course of that trial. The costs of this application are reserved.

15 The plaintiffs have brought forward this morning a further amended statement of claim. The defendants do not oppose the filing of that document and leave to file that document in Court is granted. I dispense with verification of the further amended statement of claim. I order that the plaintiffs pay the defendants’ costs thrown away by the amendment.

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