Rana v Survery (No 2)

[2012] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation:	Rana v Survery (No 2) [2012] NSWSC 905
Hearing dates:	23, 24, 25, 26 & 27 July 2012
Decision date:	10 August 2012
Jurisdiction:	Equity Division
Before:	Pembroke J
Decision:	See paragraph [48]
Catchwords:	ASSOCIATION AND CLUBS - incorporated associations - inclusion of model rules - necessity for comparison of content of model rules with those of incorporated association - nomination and approval of candidates for membership - no valid decision in accordance with model rules ASSOCIATION AND CLUBS - procedural irregularity - Section 1322 Corporations Act 2001 - no application to Associations Incorporation Act 1984 MEETINGS - procedural irregularity - characterisation - issue as to existence of valid decision creating rights of membership - substantive not procedural - no procedural irregularity
Legislation Cited:	Associations Incorporation Act 1984 Associations Incorporation Act 2009 Corporations Act 2001 (Cth) Interpretation Act 1987
Cases Cited:	Cordiant Communications (Australia) v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 McLean Bros & Rogg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 850 Rana v Survery (No 1) [2012] NSWSC 439 Young v Cotter [1996] NSWCA 573
Category:	Principal judgment
Parties:	Wajahat Ali Khan Rana - first plaintiff Mohammad Abdul Sami - second plaintiff Rab Nawaz - third plaintiff Abdul Rehman - fourth plaintiff Hafizur Rahman Khan Survery - first defendant Masud Cheema - second defendant Islamic Association Western Suburbs Sydney Inc - third defendant Australian Islamic College of Sydney - fourth defendant
Representation:	Counsel: Solicitors: Denison Toyer - for the plaintiffs N A Lawyers - for the defendants
File Number(s):	2011/400057

Judgment

Introduction

1. The principal objectives of the Islamic Association Western Suburbs Sydney Inc (the Association) are to foster and promote Islam and to assist Muslims to abide by the principles of Islam in their social, moral and spiritual lives. The Association serves an important community purpose. However, like all incorporated associations, the regulation of its affairs requires faithful adherence to the rules of its Constitution, as well as to the applicable statutory provisions.

1. I had occasion a few months ago to emphasise the unique value to an individual of his or her right of membership of an incorporated association: Rana v Survery (No 1) [2012] NSWSC 439. That case concerned the expulsion of members. This case concerns the admission of members. Both issues require scrupulous adherence to the precise language of the rules by which the Association and its members have agreed to be bound. The members are entitled to expect no less - whether in relation to the expulsion of existing members or the admission of new members.

1. The first question that I must now determine is whether, at a meeting of the Executive Council of the Association on 21 November 2008, a block of 183 new members was admitted to membership. That question involves consideration of the rules set out in the Constitution of the Association and the effect of the governing statute.

Executive Council

1. I should first explain the role of the Executive Council. The Executive Council of the Association is the "committee" for the purpose of the Act, regulations and rules. It controls and manages the affairs of the Association and exercises all of the functions and powers of the Association other than those that are required to be exercised by the members in general meeting. The Constitution provides that the Executive Council shall consist of a maximum of 11 members and a minimum of 9 members elected by the financial full members of the Association. It states that the maximum of 11 and the minimum of 9 shall "include" President, Vice-President, Secretary, Assistant Secretary, Treasurer and six Executive Council Members. Nothing turns on the arithmetical ambiguity of this provision.

1. The real point is that the Executive Council is a representative body consisting of current office bearers and elected members, which has wide-ranging responsibilities. Those responsibilities cannot be delegated except by instrument in writing. The consequence is that, absent lawful delegation, decisions about the management of the affairs of the Association, including a decision about the approval of candidates for membership, will not be effective unless the decision has been made by the Executive Council.

Associations Incorporation Act 1984

1. In 2008 the statute that regulated the Association's affairs was the Associations Incorporation Act 1984. Its successor, the Associations Incorporation Act 2009 did not commence until 1 July 2010. Section 11(1) of the 1984 Act provides that the rules of an incorporated association comply with the requirements of the section if they make provision, "whether by the adoption of the model rules or otherwise" for the several matters specified in Schedule 1 and any other matters that may be prescribed. There are no matters prescribed. The only relevant matter in Schedule 1, which is headed "Matters to be provided for in rules of an incorporated association and in model rules", is Item 1. Item 1 is described as "Membership Qualifications". Neither party suggested that the rules of the Association that are set out in its Constitution do not make provision for "Membership Qualifications".

1. Section 19 is of particular importance in this case. Section 19(2) provides in effect that the rules of an incorporated association are either its own rules, as long as they comply with Section 11, or the model rules in force from time to time. The choice is not however mutually exclusive. The model rules may still have a role to play even where an incorporated association has its own rules that comply with Section 11. Thus Section 19(3) goes on to provide:

Where in relation to any matter the model rules make provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association.

(emphasis added)

1. In this case, there is a threshold issue as to the meaning of the words in Section 19(3) "any matter [for which] the model rules make provision but the rules of an incorporated association do not". In particular, the question is whether the effect of Section 19(3) is to require comparison of the content of the model rules with the content of the equivalent rule of the incorporated association. In a given case, both sets of rules may cover a general topic such as membership qualifications, but they may do so differently and the model rules may impose more detailed and more extensive requirements. The alternative approach advocated by the plaintiffs, is that it is only necessary to consider the generality of the topic for which the rules of the incorporated association make provision. If the topic is addressed, then regardless of the paucity or ambiguity of its content, it cannot be said that the rules of the incorporated association "do not make provision ... in relation to that matter".

1. The issue of the interaction between the model rules and the rules of an incorporated association is thrown into sharp relief in the circumstances of this case by the marked difference between the provisions of the rules of the Association which deal with membership and those of the model rules which do so. In response to that difference, the plaintiffs' counsel submitted that in order to preclude the operation of Section 19(3), the Constitution "only had to deal with the matter, not the content of the [model] rules". On the basis of this approach, he submitted that the model rules should not be included in the Association's rules in relation to the requirements for membership. For the reasons that follow, I am unable to agree with this submission.

1. Before proceeding however, I should make clear that although Section 11 refers to the "several matters" specified in Schedule 1 and Section 19(3) refers to "any matter" for which the model rules make provision, they do not refer to quite the same thing. It is apparent from the context and the language that the words "several matters" in Section 11 refer to the sixteen topics set out in Schedule 1 to the 1984 Act. These are general topics. Section 19(3) has a different purpose. It is concerned, as I have explained, with a comparison of the content and operation of the rules of the incorporated association with those of the model rules. It may be taken for granted that the rules of the incorporated association already deal with each of the general topics which constitute the "several matters" set out in Schedule 1. If they did not do so, they would not comply with Section 11(1). The question raised by Section 19(3) addresses a different matter. It is in effect whether, given that both the rules of the incorporated association and the model rules must necessarily cover the topics in Schedule 1, do the model rules "make provision" in relation to a particular matter in circumstances where the rules of the incorporated association do not?

Clause 4 of Constitution

1. Clause 4 of the Constitution is headed "Requirements for Membership". It provides as follows:

4 REQUIREMENTS FOR MEMBERSHIP

1) Membership of the association shall be open to all Muslims over the age of sixteen (16) years provided the applicant:

a) Believes in the finality of Prophet Muhammad (SAW) as the last and final prophet of Allah (SWT) and that no prophet or reformer of Islam succeeded him or ever will.

b) Is not a full member of any other Islamic association or society in Australia.

c) Believes in IAWSS [sic] constitution and will always work to uphold it.

d) Is a citizen or Permanent Resident of Australia.

2) Associate membership of IAWSS shall be open to every Muslim over the age of eighteen (18) years and regardless of their being a member of other Islamic associations or societies. An Associate Member will not be entitled to vote on any IAWSS occasion.

3) Honorary membership may be conferred by the Executive Council on any distinguished Muslim who by his action the [sic] cause of Islam in Australia.

4) The executive council shall have the right to refuse membership to any person without giving any reason.

5) The Muslim Heads of the Diplomatic Corps resident in Australia may be considered as PATRONS to the Association subject to the approval of the executive council.

1. Clause 4 of the Association's rules addresses the topic of membership of the Association. But there are many aspects of the membership process on which it is silent. In particular, Clause 4 contains no provision dealing with the form of nomination for membership; whether a nomination must be in writing; or whether it must be signed by any person; by whom the nomination for membership must be determined; and whether that determination must be formal or may be informal. Indeed, it has to be said that Clause 4 of the Association's rules is loosely drawn and leaves more things unsaid that it makes clear. Among other things, it seems to contemplate implicitly that the Executive Council should have the power to determine the nomination of a person for membership, but it does not say so expressly. In fact, all that it says expressly on that issue is that the Executive Council has the right to refuse membership to any person without giving reasons.

Model Rules

1. Model Rule 3 is far more comprehensive and more orderly. It prescribes a written nomination in the form set out in the appendix to the model rules. The appendix makes clear that the form must be signed by the candidate and the proposer and seconder, to whom the candidate must be known personally. The nomination form must be lodged with the secretary of the association. The secretary must refer the nomination to the committee, which must approve or reject the nomination. The nominee must be notified in writing of his or her approval or rejection. If the nomination is approved, time limits are specified for the payment of the annual subscription.

1. The contrast between Clause 4 of the Association's rules and Model Rule 3 is substantial and stark. The full terms of Model Rule 3 are as follows:

3 Nomination for membership

(1) A nomination of a person for membership of the association:

(a) must be made by a member of the association in writing in the form set out in Appendix 1 to these rules, and

(b) must be lodged with the secretary of the association.

(2) As soon as practicable after receiving a nomination for membership, the secretary must refer the nomination to the committee which is to determine whether to approve or to reject the nomination.

(3) As soon as practicable after the committee makes that determination, the secretary must:

(a) notify the nominee, in writing, that the committee approved or rejected the nomination (whichever is applicable), and

(b) if the committee approved the nomination, request the nominee to pay (within the period of 28 days after receipt by the nominee of the notification) the sum payable under these rules by a member as entrance fee and annual subscription.

(4) The secretary must, on payment by the nominee of the amount referred to in clause (3)(b) within the period referred to in that provision, enter the nominee's name in the register of members and, on the name being so entered, the nominee becomes a member of the association.

Interaction with Model Rules

1. The interaction between the model rules and the rules of an association was considered in Young v Cotter [1996] NSWCA 573. Sheller JA, with whom Meagher and Handley JJA agreed, said that:

The interaction of the model rules and the rules of an association must be governed, in the first instance, by consideration of the matters with which they expressly deal in direct terms, rather than by consideration of whether clauses in the rules, which do not directly deal with a matter the express subject of the model rules, could be said in some general sense to cover the field.

1. I have adopted the same approach. The model rules provide clearly and expressly for a "matter", namely the process of nomination and approval for membership, while the Association's rules do not. I have no hesitation in concluding that there is a gap to be filled. Section 19(3) therefore applies. Except where an incorporated association has chosen to address or "make provision for" a particular matter, the model rules will take effect and be included in the rules of the incorporated association. In this case, Clause 4 of the Association's rules does not make any provision at all for a number of the matters provided for in the model rules. Consistent with the reasoning in Young v Cotter, Model Rule 3 should therefore be included in the Association's rules set out in its Constitution.

Meeting on 21 November 2008

1. When it is recognised that Model Rule 3 governed the admission of members on 21 November 2008, it becomes obvious that the claim that 183 new members were admitted on that date must fail. It is also apparent why the plaintiff's counsel was driven to adopt a broad approach to the construction of Section 19(3). He accepted that if it applied, Model Rule 3 required a nomination for membership to be submitted to the Executive Council and that the Executive Council was required to make a decision whether to approve or reject that nomination. He relied however on Clause 4 of the Association's rules which, he said "doesn't require the committee to approve or reject, it gives the committee a veto power".

1. The plaintiffs' position was that the model rules did not apply and that Clause 4 of the Association's rules did not require the Executive Council to approve individual candidates. That position was encapsulated in the following submission:

[the defendants'] submissions are predicated upon the requirement of the executive council to have made a decision to approve the applicants. That not being a requirement, the proper question is did the executive council in respect of any application veto those applications. That's the question. So I don't need to prove a resolution or a decision to approve any one member. All I need to demonstrate is that none of those who could be identified whether before or after the meeting by reference to a list were ever vetoed by the executive council ... .

(emphasis added)

1. The events which actually occurred on 21 November 2008 illustrate the difficulty confronting the plaintiffs' contention. The Executive Council was presented with a bundle of approximately 250 nomination forms. But there was no determination by the Executive Council of the candidature of any single, named, identifiable person. No individual nomination form was reviewed and approved by it. During and after the meeting, a list was drawn up in circumstances that are now contentious. But there was no credible suggestion that the written list of 186 names actually formed part of the resolution passed at the meeting. It did not do so. The resolution stated:

Resolution passed approved (175) and remaining (77) will be considered in March/April 2009 after review Constitution.

1. After the meeting on 21 November 2008, there was no subsequent decision by the Executive Council to approve 175 identified new members, let alone 183 or 186 new members. In any event, it is impossible to reconcile the numbers, let alone the identities, of the new members for whom the plaintiffs contend. The choice presented to me at the hearing was between 175, 183 or 186 - with no rational means of determining the correct number or their precise identities.

1. What appears to have happened is that, faced with such a large and possibly unexpected number of nomination forms, the Executive Council made an in-principle decision to accept 175 and to defer the remaining 77. But there was no decision as to the approval of an individual named candidate. Although the resolution referred to 175, no witness suggested that the 175 persons referred to in the resolution had been identified at the time the resolution was passed. Without an agreed list of names referable to the resolution, the resolution was meaningless, at least as a means of satisfying the requirements of Clause 3 of the model rules for the approval of a new member.

1. As I have mentioned, a list of names and addresses was at least commenced during the meeting and finalised after the meeting. The author was Zaheer Shah Khan, although he accepted that some names were not in his handwriting. The list was not a document of the Executive Council and was not made the subject of its resolution. It contains 186 names and addresses. It includes a number of crossings-out and substitutions. It also records, in many cases, the payment of the membership fee of $55. Some of the crossings-out, substitutions and records of payment were added after the meeting. As was the notation "paid" alongside many names on the list.

1. At the meeting, Mr Rana, who was a member of the Executive Council at the time, did not see the list prepared, or supposedly being prepared, by Zaheer Shah Khan, who was sitting at the far end of the table next to Dr Kirmani. Mr Rana's evidence was that the minutes accurately recorded what happened at the meeting. He agreed that 186 new members were not approved at the meeting. He could not adequately explain how the number of supposed new members subsequently progressed from 175 in the minutes to the 186 that appeared on Zaheer Shah Khan's list.

1. Zaheer Shah Khan said that he did not start writing any names on his list until after the resolution by the Executive Council to approve 175 new members. This was towards the end of the meeting. The meeting adjourned for prayers at 9.30pm. Prayers lasted about 30 minutes. The resolution was passed on resumption following the prayers. The meeting then concluded at 10.30pm. It was not possible to complete the list before the end of the meeting. More importantly however, when the resolution was passed, there was no list. There were therefore no individual names of candidates to whom the resolution was capable of being made referable at the time it was passed. Zaheer Shah Khan agreed that he did not show his list to the other members of the Executive council at the meeting. He said it stayed with him as he was preparing it.

1. I accept this evidence of Zaheer Shah Khan but in other respects his evidence lacked plausibility. In his affidavit, he asserted that at the meeting, "160 to 186 were approved for membership". On the other hand, in the witness box, he was adamant, insisting on a precise recollection that exactly 175 new members were "proposed and approved". He seemed quite obviously to be attempting to fit his evidence to the language of the minutes. He added, equally implausibly, that the failure to include this information in his affidavit, was simply an error on his part. When confronted with the proposition that in relation to at least 17 names on his list, those names must have been added after the meeting because their application forms were dated after 21 November, Zaheer Shah Khan's evidence was unconvincing. He appeared to be improvising; denying the obvious and asserting the improbable. I do not accept his evidence that "The [17] names were given by the committee [at the meeting], added in the list, and the forms arrived late".

1. The precise way in which the particular number of 183 or 186 new members was derived from what occurred at the meeting on 21 November 2008 was never elucidated. In some way which the evidence did not explain, the names of 183 new members appeared at future dates on several membership lists. One list was prepared in October 2010 and was signed by an independent solicitor engaged to conduct an election for the Association. The other list was signed on 26 July 2011 by Aijaz Khan in the presence of Mr Rana. By that stage, Aijaz Khan had ceased to be a member of the Executive Council. Each list no doubt reflects the assumption of some person or persons as to its accuracy. But neither is probative of the correct legal position. Neither list, let alone any assumption made by any person who may have created, signed or approved the list, can overcome the absence of a legally binding decision by the Executive Council on 21 November 2008 in accordance with Model Rule 3 to admit those named individuals.

1. I should reiterate that the plaintiffs do not advance any case based on ratification or adoption, estoppel or acquiescence. Absent any such claim, the existence of the subsequent lists, or the payment of membership fees, cannot have the effect of creating a decision out of nothing. In my view, there never was a decision by the Executive Council on 21 November 2008, complying with Model Rule 3, to approve for membership the 183 new members for whom the plaintiffs now contend. Nor was there any room for the application of a presumption of regularity based on the inclusion of names in a register of members: McLean Bros & Rogg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 850. No register of members was produced or referred to in evidence.

Meeting on 16 July 2010

1. The second issue concerns the effect of a meeting of the Executive Council on 16 July 2010. The defendants contend that 39 persons were elected as members at that meeting. The plaintiffs contend that none of those persons was elected and that rather, 22 different persons were elected.

1. The position in relation to the 39 new members for whom the defendants contend is straightforward. The minutes of the meeting of the Executive Council on 16 July 2010 are far from conclusive. They were prepared by Mr Cheema and record under the topic "DISCUSSION" the following:

Masud Cheema presented 39 forms of new members and asked to accept these people as members and after that there should be a moratorium on membership for a year.

1. Under the heading "CONCLUSIONS", Mr Cheema recorded "Unanimously approved". However, contrary to the usual practice, Mr Cheema's minutes of the 16 July meeting were not discussed and adopted at the following meeting on 13 August 2010. Nor were they "confirmed" as required by Clause 16(5) of the Association's rules. One inference is that at the subsequent meeting, there was disagreement about what was resolved at the meeting on 16 July and no consensus that could justify the adoption and confirmation of Mr Cheema's minutes of the earlier meeting.

1. There are further curiosities. Nizam Ali was not present at the meeting on 16 July 2010 but at the meeting on 13 August, he appended his signature as seconder to Mr Cheema's contentious minutes of the earlier meeting, as if he had been there and was in a position to second their adoption. This is quite improper. When someone proposes or seconds the adoption of the minutes of a previous meeting, that person is vouching the accuracy of those minutes as a record of what occurred. It is not possible to do this if the person was not present at the earlier meeting. In fact, Mr Cheema agreed that the earlier minutes were not discussed at the meeting on 13 August.

1. There are other reasons to treat the minutes of the meeting on 16 July 2010 with circumspection. Mr Cheema was not challenged about this because the documentary evidence emerged after he had completed his evidence. But it is a reason to pause and to exercise caution. It transpires that at the very least, Mr Cheema opened and last saved the document in which the minutes are recorded on 16 January 2012. This apparently involved some editing time, possibly an alteration. I do not know. It is not possible to be conclusive and I cannot take the matter any further. But even without relying on that evidence, I am not satisfied that there was a valid decision to approve the 39 new members for whom the defendants contend.

The 22 New Members

1. Quite apart from those matters, the position in relation to the 22 new members for whom the plaintiffs contend is even less satisfactory. The plaintiffs had little to go on except an equivocal and unconvincing reference in the minutes of the Executive Council meeting on 16 July 2010 and the fact that they could point to 22 nomination forms signed by the President and the Secretary. The plaintiffs' counsel explained with refreshing frankness:

The only lacuna, as it were, is how physically they [the 22 names] got added to the list and by whom.

1. That was not the only problem. The reference to the 22 new members in the 16 July minutes does not in fact record that the 22 new members for whom the plaintiffs contend were approved for membership. There is no evidence of an actual resolution to that effect. And the precise way in which there could have been any logical progression from what happened at the meeting on 16 July to the inclusion of the 22 names on a legally binding list of members of the Association, was shrouded in mystery and opacity.

1. The minutes were equivocal because they merely record under the topic "DISCUSSION" that "Br Wajahat asked to add 22 memberships to the list - who were previously added to the list without approval". The "CONCLUSIONS" appearing after that discussion item simply state: "Discussion only". Thus, there does not appear to have been a decision on the issue by the Executive Council on 16 July 2010. Nor was there anything relevant to confirm or adopt in relation to these 22 persons at the next meeting. That is no foundation for a contention that the formal process of admitting new members to membership of the Association had been satisfied.

Procedural Irregularity

1. In the alternative, and somewhat faintly, the plaintiffs relied on Section 1322 of the Corporations Act 2001 (Cth) to validate what they said had occurred at the Executive Council meetings on 21 November 2008 and 16 July 2010. That provision does not however assist. There was no irregularity at the meeting on 21 November 2008. But even if there were, there was nothing procedural about what happened, or to be more precise, what did not happen. The resolution was not on its face a resolution to approve the nomination of named persons. And an issue as to whether there has been a valid decision approving a person for membership of an incorporated association, is by nature substantive. Similar reasoning applies to the meeting on 16 July 2010. The root question in each case is whether a valid decision was made going to the existence of rights of membership. That is a substantive, not a procedural, matter.

1. That such a characterisation is appropriate, where the issue is as to whether there has been a valid decision creating rights of membership, is supported by the following statement of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 543-4:

... matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive.

To similar effect is Cordiant Communications (Australia) v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005 at [102] - [103].

1. There is a further reason for not applying Section 1322 of the Corporations Act, at least in relation to the events that occurred at the meeting on 21 November 2008. That is because Section 1322 simply does not apply to the 1984 Act. This is the clear effect of Section 6 of that Act. Section 1322 is available in circumstances where the 2009 Act applies but not where the 1984 Act applies. However, at a late stage, in reply, and without counsel for the defendants having the opportunity to respond, the plaintiffs submitted that Section 68(3)(a) of the Interpretation Act 1987 required me to conclude that the 2009 Act, not the 1984 Act, applied and that consequently Section 1322 of the Corporations Act was rejuvenated and took effect, for what it is worth, in relation to the meeting on 21 November 2008. I do not need to decide this issue. It cannot avail the plaintiffs having regard to the characterisation which I explained in paragraphs [36] and [37].

The School

1. The third and final issue relates to the School. The plaintiffs seek to invalidate a resolution of the Executive Council of the Association made on 26 April 2012. That resolution related to the selection and unanimous approval on that date of eight names for the School Board. The power of appointment to do so is contained in Clauses 14(d) and 16 of the School's Constitution.

1. The School is known as the Australian Islamic College of Sydney and was formerly known as the King Abdul Aziz School. Its Constitution provides that the President, Secretary and Treasurer of the Association are ex officio members of the School. The members of the School constitute the Board of the School. The Constitution also provides that in addition to the three ex officio members, eight persons appointed by the Foundation Members and by the Executive Council of the Association shall constitute the members of the School. The appointment of those eight persons to the School is for a term of two years, subject to the entitlement of the Executive Council of the Association to terminate the appointment of any such person without reasons. It goes without saying that, if and when a person ceases to be either the President, Secretary or Treasurer of the Association, he immediately ceases to be a member of the School.

1. The starting point for the resolution of this issue is what occurred on 26 April 2012. On that date, the Executive Council of the Association took steps to bring about new appointments to the School Board. They did so because the view was taken that the last appointment of elected members of the School Board, apart from those that related to casual vacancies, had occurred in May 2010. On this view, the two year term provided for in the School's Constitution expired in May 2012. It was therefore appropriate, indeed necessary, to make fresh appointments in May 2012. I should emphasise that I am concerned only with the validity of this process, not with the identity of the persons who were appointed to and removed from the School Board in May 2012.

1. The plaintiffs contend that the two year term of the appointed members of the School Board in office immediately before May 2012, did not expire until October that year. For that reason, they say that the Executive Council's resolution of 26 April 2012 and the subsequent changes in membership of the appointed members of the School Board that occurred in May 2012, are invalid. For the reasons that follow, I have concluded that I should reject this submission.

1. In my view, the proper characterisation of the events which occurred does not suggest that there was anything improper, let alone invalid, in the steps that were taken to bring about new appointments to the School Board in May 2012. The Executive Council was justified in acting on the basis that the previous election of appointed members had occurred in May 2010.

1. The area of difference between the parties is narrow. There is no dispute that an election of appointed members of the School Board took place in May 2010. The minutes of the meeting of the Executive Council of the Association held on 11 May 2010, confirmed on 28 May 2010, do not suffer from the doubts and defects which have detracted from the veracity of some other minutes that I have been required to consider during the hearing. In addition, the minutes of the meeting of Foundation Members of the Association held on 16 May 2010, appear to be in order.

1. The dispute is essentially as to the proper characterisation of the May 2010 election of appointed members. Once that is determined, the validity of the disputed resolution made on 26 April 2012 must follow. The plaintiffs say that in some way the events of May 2010 should be characterised as an adoption, confirmation or ratification of the appointment process that occurred in October 2008. They contend, in effect, that the two year term for appointed members of the School Board ran, relevantly, from October 2008 to October 2010 to October 2012. On this approach, the appointment and removal of members of the School Board in May 2012 was premature and invalid. The appointed members were entitled to remain in office until October this year.

1. There are several problems with this analysis. First, the election of appointed members of the School Board in May 2010 is an acknowledged fact. The plaintiffs do not seek to invalidate it. They only seek to characterise it as something different from that which it appears to be. Second, the evidence of Dr Survery explained why the sequence of events became out of sync. I accept that evidence. It seems to me to be crucial. There had been an election of appointed members of the School Board in October 2008. However the legal firm of Hunt & Hunt subsequently gave advice that the formation of the School Board following that election was invalid and that the Board had to be re-formed. That advice led to the further election of appointed members of the School Board in May 2010. Dr Survery entirely rejected the notion that what happened in May 2010 "was simply to ratify that which had already been approved by the Executive Council in October 2008". In my view, the further election of appointed members of the School Board in May 2010 was entitled to be regarded as a free standing process. It was a temporal benchmark from which the next two year term ran.

1. Third, there is no support for the plaintiffs' contentions as to what occurred in October 2010. It is very difficult to see any reliable evidence of an election of appointed members of the School Board occurring at that time. No minutes were produced and there is no evidence of a formal process by which appointments were made pursuant to Clauses 14(d) and 16 of the School's Constitution at that time. There was admittedly an alteration in the ex officio members. But that was simply because the office bearers of the Executive Council of the Association changed. Taken as a whole, there is little or no persuasive support for the plaintiffs' contentions on the School Board issue. I see no reason at all to invalidate the resolution of the Executive Council made on 26 April 2012.

Conclusion

1. For those reasons, I reject the claims by the plaintiffs and the defendants for the addition of new members of the Association at the meetings of the Executive Council on 21 November 2008 and 16 July 2010. I also reject the plaintiffs' claim to invalidate the resolution of the Executive Council made on 26 April 2012. The parties should bring in short minutes to reflect these reasons. In the final outcome, the results for the parties have been mixed although the defendants have had more success than the plaintiffs. The plaintiffs should pay 75% of the defendants' costs.

Decision last updated: 13 August 2012