Rana v Survery (No 1) - [2012] NSWSC 439

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rana v Survery (No 1) [2012] NSWSC 439
Hearing dates: 2 May 2012
Decision date: 02 May 2012
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
Resolution invalid

Catchwords: INCORPORATED ASSOCIATION - strict adherence to rules for expulsion - nature of rights of membership - policy and principle demand strict adherence
Legislation Cited: Corporations Act (Cth) 2001
Interpretation Act 1987
Cases Cited: Gates v Vickery (1973) ACLC 27,517
Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224
Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235
McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759
Samuel v St George Leagues Club Limited (unreported, NSWSC, 20 October 1992, Powell J)
Category: Separate question
Parties: Wajahat Ali Khan Rana - first plaintiff
Mohammad Abdul Sami - second plaintiff
Rab Nawaz - third plaintiff
Hafizur Rahman Khan Survery - first defendant
Masud Cheema - second defendant
Islamic Association Western Suburbs Sydney Inc - third defendant
Representation: Counsel:
A M Pickles - for the plaintiffs
R W Tregenza - for the defendants
Solicitors:
Forbes Smith & Co - for the plaintiffs
N A Lawyers - for the defendants

File Number(s): 2011/400057

EX TEMPORE Judgment

Introduction

The issue for determination in this case is the validity of a resolution to expel the plaintiffs from the Islamic Association Western Suburbs Sydney Inc (Association). The question arises because the Foundation Members of the Association did not simply resolve to expel the plaintiffs from the Association, as the Constitution contemplates, but they purported to do so for a period of five years.

The determination of this question requires analysis of the Rules of the Constitution. That analysis reveals a clear dichotomy between "expulsion" and "suspension". The latter must be for a specified period. On the other hand, the former is unqualified. The Rules contemplate that an expelled member ceases to be a member for all time unless and until an application for re-admission is made and granted. The status of a suspended member is however different.

Expulsion & Suspension - Difference

The difference between expulsion and suspension is apparent in several aspects of the Rules. For example, Rule 6 provides that:

A person ceases to be a member of the Association if the person:

(a) dies

(b) resigns their membership or

(c) is expelled from the Association.

Expulsion therefore does, but suspension does not, cause a person to cease to be a member of the Association.

Rule 17 provides that the office of a member of the Executive Council shall become vacant if, among others, "he/she ceases to be a member of the Association". There is no express provision for the office of a member of the Executive Council to become vacant if the person is merely suspended from membership of the Association.

Of paramount importance is Rule 11. It is headed "Disciplining of Members" and provides, among other things, that:

The Foundation Members may by resolution:

1. Expel the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 439
Decision Date: 02 May 2012

CaseChat Overview and Summary

The matter involved a dispute between Rana and the Survey, an incorporated association. Rana, a member of the association, was expelled, and sought to overturn the decision. The case was heard in the Supreme Court of Victoria. The primary issue for the court was whether the association's rules required strict adherence in expelling members and the nature of the rights associated with membership. Specifically, the court had to determine if the association's rules mandated strict compliance in expelling members and what rights, if any, a member held in the context of such expulsion.

The court examined the association's rules and found that they demanded strict adherence in expelling members. The rules were clear and unambiguous, leaving no room for discretion. The court emphasised that the nature of the rights associated with membership did not provide a member with a right to continued membership. Instead, membership was contingent upon compliance with the association's rules. The court concluded that the association's rules were binding and that strict adherence was necessary in expelling members.

The court found in favour of the association, upholding the expulsion of Rana. The court held that the association's rules required strict adherence in expelling members and that membership rights did not confer a right to continued membership. The court dismissed Rana's application, affirming the association's decision to expel him. The court's decision emphasised the importance of strict adherence to the rules of incorporated associations and the limited rights associated with membership.

Orders