United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc - [2022] NSWSC 868

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc [2022] NSWSC 868
Hearing dates: 6, 7 and 8 June 2022
Date of orders: 30 June 2022
Decision date: 30 June 2022
Jurisdiction: Equity
Before: Kirk J
Decision:
Proceedings 2021/0055621
(1) The Court declares that the plaintiff remains a member of, and the State Council for New South Wales within, the defendant.
(2) The defendant is to pay the plaintiff’s costs with respect to its application for this relief.
(3) Liberty to apply.
Proceedings 2022/00142138
(1) The Court declares that the plaintiff remains a member of, and the State Council for Victoria within, the defendant.
(2) The defendant is to pay the plaintiff’s costs.
(3) Liberty to apply.

Catchwords:
ASSOCIATIONS AND CLUBS — Meeting of members — Whether appointment to the AFIC Executive Committee was valid — Whether AFIC Executive Committee was quorate when it met to expel the plaintiffs
ASSOCIATIONS AND CLUBS — Proper construction of s 16 of the Associations Incorporation Act 1964 (Tas) — Test for inconsistency — Whether the Associations Incorporation (Model Rules) Regulations 1997 (Tas) applied in the circumstances — Whether Model Rules excluded, modified by or inconsistent with the AFIC Constitution
ASSOCIATIONS AND CLUBS — Application of rules 33 and 34 of the Model Rules — Whether the AFIC Executive Committee was the relevant “committee” for the purposes of rule 33 — Whether appeals under rule 34 are to be heard by the Federal Congress of AFIC
ASSOCIATIONS AND CLUBS — Procedural fairness — Whether breach of procedural fairness rendered obsolete or “cured” by appeal process — Whether appeal under rule 34 invalid for lack of sufficient notice
ASSOCIATIONS AND CLUBS — Improper purpose — Where evidence of improper purpose on the part of one person in a decision-making body — “Rotten apple” theory —Whether AFIC Executive Committee expelled the plaintiffs for an improper purpose — Whether subsequent decisions made at special general meetings invalidated by the AFIC Executive Committee’s improper purpose

Legislation Cited:
Associations Incorporation Act 1964 (Tas)
Associations Incorporation (Model Rules) Regulations 1997 (Tas)
Evidence Act 1995 (NSW), ss 128(6), 140

Cases Cited:
Australian Federation of Islamic Councils Inc v Hafez Kassem [2017] NSWSC 206
Australian Federation of Islamic Councils Inc v United Muslims New South Wales Inc [2021] NSWCA 311
Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601; [1948] HCA 35
Calvin v Carr [1980] AC 574
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Dixon v Esperance Bay [2002] WASC 110
Foss v Harbottle (1843) 2 Hare 461
Green v King [1957] Tax SR 66
Hanlon v Brookes (1997) 15 ACLC 1626
Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Islamic Council of NSW v Australian Federation of Islamic Councils [2000] NSWSC 115
Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211
McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360
Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc [2016] NSWSC 960
Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212; [2021] HCA 2
Popovic v Tanasijevic [2001] SASC 289
Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167
Ridge v Baldwin [1964] AC 40
Rose v Boxing NSW Inc [2007] NSWSC 20
Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467
South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39
Twist v Randwick City Council (1976) 136 CLR 106; [1976] HCA 58
United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils [2021] NSWSC 382
Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2
Young v Cotter [1996] NSWCA 573

Texts Cited:
Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 7th edition, 2022)
GE Dal Pont, Law of Associations (LexisNexis, 2018)
Herzfeld and Prince’s Interpretation (Thomson Reuters, 2nd edn, 2020)

Category: Principal judgment
Parties:
Proceedings 2021/0055621
United Muslims of New South Wales (Plaintiff)
Australian Federation of Islamic Councils (Defendant)
Proceedings 2022/00142138
Islamic Council of Victoria (Plaintiff)
Australian Federation of Islamic Councils (Defendant)
Representation:
Counsel:
Proceedings 2021/0055621
TJ Dixon and B Rauf (Plaintiff)
S Golledge SC and J Parrish (Defendant)

Proceedings 2022/00142138
S Blount (Plaintiff)
S Golledge SC and J Parrish (Defendant)

Solicitors:
Proceedings 2021/0055621
Taylor & Associates Lawyers (Plaintiff)
Turner Freeman Lawyers (Defendant)
Proceedings 2022/00142138
Brand Partners Commercial Lawyers (Plaintiff)
Turner Freeman Lawyers (Defendant)

File Number(s): 2021/0055621; 2022/00142138

Judgment

Introduction and summary

These proceedings concern a dispute between the Australian Federation of Islamic Councils (AFIC) on the one hand and two of its constituent State Councils on the other.
The plaintiff in the first dispute, United Muslims New South Wales (UMNSW), has been the State Council of AFIC for NSW, and the plaintiff in the second dispute, Islamic Council for Victoria (ICV), has been the State Council of AFIC for Victoria. All parties involved are incorporated associations.
In correspondence dated 11 March 2022 the Executive Committee of AFIC (Exco) sought to expel the plaintiffs from AFIC. Each expulsion decision was then appealed by the respective plaintiffs. The appeals were heard and purportedly determined by special general meetings (SGMs), which meetings confirmed each of the expulsions.
Each plaintiff challenges the validity of the expulsion decisions. The two proceedings were heard together, having been listed with a significant degree of expedition. Orders were made by consent that evidence in one proceeding was to be evidence in the other proceeding.
There are five broad issues in question, although these involve many other points. The five issues, and my resolution of them, can be summarised as follows:

Was the Exco validly constituted when it met on 11 March 2022 and made the original expulsion decisions of each of the plaintiffs? If not, what consequence follows? Answer: The Exco was not quorate when it met on 11 March 2022, and its decisions to expel the plaintiffs were invalid. The subsequent decisions of the SGMs are also invalid on this ground.

Did the model rules contained in the Associations Incorporation (Model Rules) Regulations 1997 (Tas) (Model Rules) apply in the circumstances and, if so, with what effect?

Specifically, were the Model Rules wholly excluded by virtue of what happened when AFIC was first incorporated? Answer: No.

Alternatively, were the powers of expulsion excluded or modified by the AFIC Constitution, specifically cll 5(7), 13(e), 18(e)? Answer: No.

If the Model Rules did apply:

Were the powers to expel UMNSW and ICV from AFIC conditional on a finding of misconduct on their part as members and/or was it only open to AFIC to expel State Councils as members, not as State Councils? Answer: It was open under the Model Rules to expel State Councils, and this power was not limited to expulsion for matters connected to their capacity as member societies, as opposed to being constitutive State Councils, of AFIC.

Was the Exco the “committee” for the purposes of the expulsion powers or was it, rather, the Federal Council? Answer: The relevant “committee” for the purposes of rule 33 of the Model Rules is the Exco.

Were the SGMs as called by the Exco correctly constituted to hear the appeals under rule 34 of the Model Rules, or should the appeals have been directed to a special meeting of the Federal Congress? Answer: The SGM provided for in rule 34 of the Model Rules is to be constituted by a special meeting of the Federal Congress, as provided for under the AFIC Constitution. Here, no such meetings have yet been held with respect to either plaintiff. As a result, the appeal rights provided to the plaintiffs by rule 34 remain unfulfilled. As a further consequence, that means the plaintiffs currently remain as members of AFIC, pursuant to rule 33(2)(b) of the Model Rules.

Was UMNSW denied procedural fairness in relation to its expulsion from AFIC? Answer: Although the Exco’s decision to expel UMNSW was affected by a breach of procedural fairness, this breach was rendered obsolete or “cured” by the subsequent appeal hearing in the SGM (on the assumption, contrary to the conclusion I have reached, that the SGM was properly constituted for the appeal hearing).

With respect to ICV, was the appeal invalid because of the lack of 14 days notice of the holding of the SGM? Answer: yes.

Were the expulsion decisions of the Exco taken for an improper purpose and, if so, does that have the consequence that the expulsion decisions of the SGMs are invalid? Answer: the expulsion decisions of the Exco were taken for an improper purpose, but that does not have the consequence that the decisions of the SGMs are invalid.

In the result, my conclusions are that:

with respect to issue (1), the expulsion decisions as regards both plaintiffs are invalid because the Exco was inquorate when it made the original expulsion decisions on 11 March 2022 and this was not “cured” by the subsequent appeals;

if that conclusion is incorrect, then as regards issue (2), in any event the appeals have not (yet) been considered by a special meeting as constituted by the Federal Congress;

with respect to issue (4), as regards ICV, its appeal has also not been duly considered (regardless of whether or not the SGM should have been constituted as the Federal Congress) because insufficient notice of the meeting was provided;

I do not consider that I should decline to grant relief on these grounds;

the plaintiffs have not made out a case for relief based on the allegations of breach of procedural fairness (issue 3) and improper purpose (issue 5);

as a result of my conclusions on issues (1), (2) and (4), the plaintiffs have not been expelled from AFIC, and remain members of and the State Councils within that body, and relief should be granted accordingly.

In this judgment I will first outline the background to this litigation, then address the issues in dispute. I have addressed all of the issues raised, lest the matter go further. It is convenient to address the issues somewhat out of order. I will first address the application of the Model Rules (issue (2)), then the procedural fairness and short notice points (issues (3) and (4)), followed by the quorum point (issue (1)), and finally the allegations of improper purpose (issue 5).
I note that in what follows I refer, in general, to arguments being put on behalf of the plaintiffs, even if in some circumstances a particular argument was put more by one plaintiff than the other. I understood that the plaintiffs largely adopted each other’s arguments.

Background

Structure and membership of AFIC

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

Prior proceedings involving AFIC and its State Councils

Questions about AFIC’s ability to expel State Councils, to remove office-bearers of State Councils, and issues relating to membership more broadly, have been agitated before this Court with a surprising degree of regularity:

In Islamic Council of NSW v Australian Federation of Islamic Councils [2000] NSWSC 115, AFIC purported to appoint a caretaker committee to intervene in the affairs of the plaintiff (a predecessor to UMNSW) to run its affairs until new office-bearers were elected. Hodgson CJ in Eq declared that the purported removal of the NSW State Council’s office-bearers by AFIC was invalid.

In Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211, Brereton J considered whether certain local Islamic societies in NSW were entitled to membership of AFIC, and therefore of the NSW State Council.

In Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360 (MCNSW v AFIC 2009), Bergin CJ in Eq was asked to determine if the Federal Congress of AFIC could expel the then NSW State Council from AFIC in its capacity as a member without a prior decision of the Exco.

In Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc [2016] NSWSC 960 (MNSW v AFIC 2016), Stevenson J considered whether a meeting requisitioned to consider a vote of no confidence in then members of the Exco had to be determined by the Federal Congress.

The subsequent case of Australian Federation of Islamic Councils Inc v Hafez Kassem [2017] NSWSC 206 concerned the issue of “which of two warring factions controls, and which should control for the time being, the affairs of [AFIC]”, to quote McDougall J at [1].

The more immediate background to the current dispute is litigation conducted in 2021. AFIC sought to replace UMNSW with a new body or group of individuals in a meeting convened on 16 January 2021. The meeting was attended by AFIC member societies in NSW. AFIC claimed that its power to displace UMNSW as a State Council was found in the AFIC Constitution. UMNSW disputed that claim, and initiated proceedings against AFIC in this Court.
At first instance Black J, in United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils [2021] NSWSC 382, found in favour of UMNSW on this point. His Honour stated at [67]:

“AFIC’s constitution does not, in terms, provide a mechanism to appoint a State Council where an existing State Council is already in place or to remove that existing State Council. It also seems to me that a provision for the removal or displacement of an existing State Council, once it was formed, cannot be implied as a matter of construction, where it is inconsistent with the provision in cl 5(2) that it is ‘incumbent’ on UMNSW as State Council to ‘remain a constituent body’ of AFIC and where other issues, such as whether procedural fairness would be afforded to the existing State Council before removing or displacing it are not addressed by such an implication.”

AFIC then appealed, again claiming that the AFIC Constitution permitted AFIC’s member societies in a State to remove the relevant State Council. On 15 December 2021 in the 2021 CA judgment, Bathurst CJ, with whom Bell P and Meagher JA agreed, dismissed the appeal. The Court relevantly made the following points:

UMNSW, in its capacity as a State Council, “will be subject to the expulsion provisions contained in the Model Rules” (at [69]).

On the claimed power of removal, the following was said at [87]:

“under the AFIC Constitution, a State Council can be removed by AFIC by the invocation of the expulsion provisions in the Model Rules, or as a result of it being wound up, or by orders made in proceedings under Ch 2F of the Corporations Act. However, absent the use of the expulsion provisions, AFIC does not have the power to remove a State Council. The removal of UMNSW in this case did not occur by invocation of either of those provisions.”

In light of the UMNSW and AFIC constitutions, it was “plainly intended that each should operate harmoniously with the other and that member societies in New South Wales were to be members of each of AFIC and UMNSW” (at [74]).

Clause 5(8) of the AFIC Constitution makes it clear that an AFIC member society in NSW is entitled to membership of the State Council and imposes an obligation on UMNSW to admit them, subject to its constitution (which is in principle required to conform with the AFIC Constitution). If UMNSW wrongfully refused to admit an AFIC member society to its membership, AFIC would be entitled to bring proceedings to enforce the obligation contained in cl 5(8) of the AFIC Constitution. Similarly, UMNSW could bring proceedings against AFIC if it refused to admit a member society of UMNSW which was entitled to admission under the AFIC rules (at [123]-[124]).

These proceedings

Subsequent to the Court of Appeal’s decision the Exco sought to invoke the expulsion provisions in the Model Rules, as the Court had indicated was possible. In these proceedings, the plaintiffs made some faint suggestions that doing so was inconsistent with the Court of Appeal’s decision. It was not. There was also a faint allusion by the plaintiffs to issues of Anshun estoppel. No such estoppel could arise in relation to decisions taken subsequent to the prior litigation.
The proceedings now brought by UMNSW represent a continuation of the prior proceedings determined by Black J and the Court of Appeal. UMNSW sought to rely on the liberty to apply that had been reserved by Black J. By notice of motion filed on 11 May 2022, and subsequently by amended points of claim, UMNSW seeks relief declaring that it remains the State Council for NSW and enjoining AFIC from taking any steps to give effect to its purported expulsion. UMNSW also seeks orders that the elections of officers of AFIC be conducted and overseen by an independent person approved by the Court.
Given that the issues raised in this matter concern decisions made subsequent to the Court of Appeal’s decision, for UMNSW to claim that the disputes about these new matters fell within the liberty to apply granted by Black J was a stretch. Ultimately, however, AFIC did not take issue with that procedure.

By summons filed on 17 May 2022, and subsequently by amended points of claim, ICV seeks much the same relief as is sought by UMNSW, but directed to the validity of AFIC’s decision to expel it.

Witnesses in this case

Twelve witnesses were called in the proceedings, as follows:

Mr Hossam Elrayes, President of UMNSW, called by UMNSW;

Mr Kazim Ates, former Assistant Secretary of AFIC, called by UMNSW;

Mr Talal Elcheikh, Vice President and former President of UMNSW, called by UMNSW;

Mr Habib Jamal, former president of the Islamic Council for Queensland (ICQ), called by UMNSW;

Mr Abdul Neeman, member of the Lebanese Unity Association, called by UMNSW;

Mr Jamal El-kholed, former Vice President of AFIC, called by UMNSW;

Mr Adel Salman, President of ICV, called by ICV;

Mr Mohamed Mohideen, current Vice President and former president of ICV, called by ICV;

Dr Rateb Jneid, President of AFIC, called by AFIC;

Mr Keysar Trad, CEO of AFIC, called by AFIC;

Ms Janet Merewether, who synchronised visual and sound recordings of the SGM relating to the expulsion of UMNSW;

Mr Ian Taylor, the solicitor for UMNSW, whose affidavit attached some documents.

No issues of credit were raised as regards any of these witnesses, save for Dr Jneid.

Issue (2): The application of the Model Rules

As noted above, the plaintiffs were expelled from AFIC pursuant to the Model Rules. Whether or not the powers of expulsion in those rules were available, and how they applied if they were available, was a matter of dispute involving a number of points.

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

The plaintiffs argued that the Model Rules had no application at all with respect to AFIC, because they had been wholly excluded. I note that the Court of Appeal considered that the Model Rules, including with respect to expulsion, did apply to AFIC: see at [25], [67]-[69], [84]. However, it appears that it was not argued in that case that they did not apply. That being so, the contrary view in the Court of Appeal is not determinative of the issue raised before me. As McHugh J stated in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79], “[c]ases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue” (see also CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14] per Gleeson CJ, Gummow and Heydon JJ).
AFIC was incorporated in Tasmania following an application made in 1999 pursuant to the Associations Incorporation Act 1964 (Tas) (the Tasmanian Act). In what follows I refer to the current version of the Tasmanian Act, in circumstances where no party suggested there had been any material amendment such that I should refer to some earlier version. As regards the Model Rules the position is different, and I refer to the rules as they stood as at 1999, for reasons explained below.
Section 16 of the Tasmanian Act provides as follows (emphasis added):

16. Model rules
(1) The Governor may, by regulations under this Act, prescribe model rules for associations incorporated or desiring to become incorporated under this Act.
(2) An association that is proposed to be incorporated under this Act, or that is incorporated thereunder, may, by special resolution, adopt as its rules all or any of the model rules or may so adopt the model rules subject to such modifications as are specified in the resolution.
(3) Where an association is incorporated under this Act, in so far as any rules lodged, pursuant to section 7, with its application for incorporation are not inconsistent with or do not exclude or modify the model rules as then in force, the model rules shall be deemed to form part of the rules of the association in the same manner and to the same extent as if they were contained in the rules so lodged.
(4) No alteration of the model rules applies to an association that is incorporated before the regulation prescribing the alteration comes into operation, unless the association, by special resolution, adopts the alteration as part of its rules.

It can be seen that it is open to an association to exclude or modify the Model Rules. Subject to the Act itself, an association may choose what rules apply to its internal governance. The Model Rules fill “a default function”, such that “where an association’s rules do not make provision for a matter addressed by the model rules, the latter fills that gap by being taken (or deemed) to form part of the association’s rules pertaining to that matter”: GE Dal Pont, Law of Associations (LexisNexis, 2018), [6.42].
It is convenient to address at this point how the notion of being “not inconsistent” in s 16(3) of the Tasmanian Act is to be understood. Neither party addressed this question. In Young v Cotter [1996] NSWCA 573 at 5, Sheller JA stated as follows (Meagher and Handley JJA agreeing):

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

The NSW provision at issue there was (and is) different from s 16(3) of the Tasmanian Act. Sheller JA said at 3 that the former provided “that where in relation to any matter the model rules make provision but the rules of an association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the association” (see now Associations Incorporation Act 2009 (NSW), s 25). In contrast, s 16(3) does not speak of making provision with respect to a “matter”. It makes clear that the association may exclude or modify the Model Rules, and expressly employs the notion of being “not inconsistent”. Because the association may exclude or modify the Model Rules, the views of the association are, in this regard, paramount. This is not an instance of seeking to reconcile two sets of provisions from the same rule-maker. If a Tasmanian association wished to “cover the field” in some regard, it would be open to it to do so. The association may, indeed, wish to exclude the Model Rules altogether.
The wording of s 16(3) suggests that the issue of the two sets of rules being “not inconsistent” is something beyond the Model Rules being excluded or modified. No doubt there is a significant degree of overlap, because inconsistency will arise by the very fact of something being excluded or modified. The use of the additional words of “not inconsistent” suggests that an inconsistency could arise other than by express exclusion or modification.
Australian law has a well-developed understanding of inconsistency in terms of clashes between federal and State law (under s 109 of the Constitution) and between federal and Territory Law (under the self-government legislation). Leaving aside debates about “covering the field”, the core question there is whether the non-overriding law alters, impairs or detracts from the paramount legislation: see eg Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, at [72] per Gageler J, and at [107] per Edelman J. There is a reasonable analogy between that type of context and the issue at hand here, given that the association’s own rules have paramountcy over the Model Rules. In my view, it is reasonable to ask in the context of applying s 16(3) whether (in the absence of express exclusion or modification) application of the Model Rules would alter, impair or detract from the operation of the rules of the association. Here, those rules are found in the AFIC Constitution.
I was provided with a copy of the Associations Incorporation (Model Rules) Regulations 1997 (Tas) as they existed in 1999. The parties agreed that it was the Model Rules as found within this version of the Regulations which were applicable. That was so because s 16(4) provides that alterations of the Model Rules made after an association becomes incorporated do not apply to that association unless the alteration is adopted by special resolution. There was no evidence of any such special resolutions here.
In earlier litigation involving AFIC the parties appear to have relied on other versions of the Model Rules, as opposed to the version as at 1999: MCNSW v AFIC 2009 at [16]; AFIC v MNSW 2016 at [11]. As regards the expulsion provisions, however, there does not appear to have been any material amendment, although the numbering of the provisions has changed.
I note in passing that cl 13 of the 1999 version of the Model Rules contains a requirement that notices of general meetings (which include special general meetings) must be published “in at least one newspaper published in this State” at least 14 days before the meeting. No point was raised about the apparent non-fulfilment of that requirement in this matter.
Section 16(3) of the Tasmanian Act refers to inconsistency between the Model Rules and “the rules of the association”. The parties accepted that that latter reference would encompass the constitution of an incorporated association.
Section 7(2)(b) of the Tasmanian Act provides that an application for incorporation shall be accompanied by, amongst other things:

(i) a copy of the rules of the association and any trusts relating to the association, and, if the rules or trusts are embodied in a deed, a copy of the deed;
(ii) a statement that the model rules have been adopted without modification; or
(iii) if the association has adopted the model rules with modification, a copy of the modification subject to which the model rules were adopted.

Consistently with this provision, the application form for registration of AFIC in Tasmania had apparently standard form words contemplating what might be annexed to the application, referring to “rules”, “rules and trusts” and “modifications subject to which the model rules were adopted”. In AFIC’s application form, which is dated 14 October 1999, the former two possibilities were crossed out, leaving just the third (ie “modifications subject to which the model rules were adopted”). The form also stated that the “minimum modifications are the insertions to” various identified rules, being rules requiring some details relating to the particular incorporated association to be included (namely rules 1, 3, 5(12), 23(1)(b), 30(1) and 31). It appears that such details were not provided with the application.
The plaintiffs said that the only thing that was annexed to the application was AFIC’s constitution. They argued that that fact, together with the not crossed out words “modifications subject to which the model rules were adopted”, constituted a wholesale exclusion of the Model Rules.
I reject that argument. The question turns on ascertaining what decision as to adoption or not of the Model Rules was communicated by the completed form. The reference in the form to “modifications subject to which the model rules were adopted” appears to contemplate that an applicant might provide a particular list of modifications to the Model Rules. That is not what occurred here. There is no statement in the form that the Model Rules have been adopted without modification (as contemplated by s 7(2)(b)(ii)). Yet there is also no statement that the Model Rules were being excluded on a wholesale basis. By leaving the words “modifications subject to which the model rules were adopted” not crossed out, it was implied that the Model Rules were being adopted, albeit with modifications (as contemplated by s 7(2)(b)(iii)).
What modifications were being adopted? In the absence of any precise identification of modifications, the natural reading of the application is that the Model Rules were being adopted subject to such modifications as were express or implied in the intended constitution (consistently with s 16(3) of the Tasmanian Act).
The plaintiffs submitted that AFIC did not opt to take the “minimum modification” route as none of the gaps in those rules identified on the form had been filled. By and large those gaps could be understood as being filled by the details contained in the AFIC Constitution and in the remainder of the application form. Insofar as those gaps were not filled, then the relevant rule in the Model Rules may have no operation. The existence of any such gaps is not sufficient to exclude the implication from the form that the Model Rules were being adopted.
I thus reject the plaintiffs’ argument that the Model Rules were wholly excluded by virtue of what occurred when AFIC applied to be incorporated.

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

The plaintiffs next argued that the powers of expulsion contained in the Model Rules were excluded or modified by the AFIC Constitution, specifically because they were inconsistent with clls 5(7), 13(e) and 18(e) thereof, taken together with the absence of any express power in the Constitution to expel a State Council. As I understood the argument, it was said that the expulsion provisions in the Model Rules were excluded altogether (ie as regards all member societies), or alternatively were excluded as regards State Councils in particular.
The Court of Appeal held that the expulsion provisions of the Model Rules were available as against a State Council: at [84]-[87]. However, it was not suggested to me that the contrary had been argued on the basis of inconsistency. Again, therefore, that conclusion is not determinative of the arguments put here.
The three named clauses of the AFIC Constitution relied upon by the plaintiffs provide as follows:

“5. Structure and Membership of AFIC
…
(7) Acceptance of new member Societies or expulsion of an existing member Society shall be in accordance with the provisions of this Constitution and relevant resolutions of the Federal Congress/Council. Only member societies of the AFIC which have paid their membership subscription to the AFIC are eligible to participate in the affairs of the AFIC or the relevant State Council’
13. Powers and Functions of the Federal Congress
In addition to any powers conferred upon it by the Constitution the Federal Congress shall have powers: …
(e) To adjudicate upon all matters of controversy and differences between the Federal Council, Executive Committee and the State Councils or between State Councils and their member Societies and give decisions in respect thereof.
18. Powers and Functions of the Executive Committee
The powers and functions of the Executive Committee shall include: …
(e) To exercise emergency powers and directly intervene in the affairs of a State Council only if the situation warrants immediate action by A.F.I.C. The degree and form of intervention will be determined by the Executive Committee itself. The Executive Committee may seek and obtain the advice of all the members on the panel of Islamic Arbitrators as per Rules for the Conduct of Islamic Arbitration as per Section 60(12) and act on this advice as early as possible to address and resolve the problems / disputes occurring in a member state Council or Islamic Society. Examples of circumstances which require invoking of these powers are:
(i) Infiltration of non-Muslims in the State Council.
(ii) Infiltration of persons widely suspected to be non-Muslims in the State Council.
(iii) Persistent defiance of AFIC policies and AFIC Constitution by the State Council.
(iv) Long absence from meetings of the majority of the office-bearers of the State Council paralysing the affairs of the State Council.
(v) Serious division in the State Council members to run the affairs of the Council. Action taken under these powers shall be presented to and ratified by the Federal Council.”

The expulsion provisions in the Model Rules are contained in rules 33-34:

“33.   Expulsion of members
(1)   The committee may expel a member from the Association if, in the opinion of the committee, the member is guilty of conduct detrimental to the interests of the Association.
(2)   The expulsion of a member under subrule (I) does not take effect until whichever of the following is the later date:
(a)   the expiration of 14 days after the service on the member of a notice under subrule (3);
(b)   if the member exercises his right of appeal under this rule, the conclusion of the special general meeting convened to hear the appeal.

(3)   If the committee expels a member from the Association, the public officer of the Association, without undue delay, is to cause to be served on the member a notice in writing –
(a)   stating that the committee has expelled the member; and
(b)   specifying the grounds for the expulsion; and
(c)   informing the member of a right to appeal against the expulsion under rule 34.

34.   Appeal against expulsion
(1)   A member may appeal against an expulsion under rule 33 by delivering or sending by post to the public officer of the Association, within 14 days after the service of a notice under rule 33(3), a requisition in writing demanding the convening of a special general meeting for the purpose of hearing the appeal.
(2)   On receipt of a requisition –
(a)   the public officer is to immediately notify the committee of its receipt; and
(b)   the committee is to cause a special general meeting of members to be held within 21 days after the date on which the requisition is received.

(3)   At a special general meeting convened for the purpose of this rule –
(a)   no business other than the question of the expulsion is to be transacted; and
(b)   the committee may place before the meeting details of the grounds of the expulsion and the committee's reasons for the expulsion; and
(c)   the expelled member is to be given an opportunity to be heard; and
(d)   the members present are to vote by secret ballot on the question whether the expulsion should be lifted or confirmed.

(4)   If at the special general meeting a majority of the members present vote in favour of the lifting of the expulsion –
(a)   the expulsion is to be taken to have been lifted; and
(b)   the expelled member is entitled to continue as a member of the Association.

(5)   If at the special general meeting a majority of the members present vote in favour of the confirmation of the expulsion –
(a)   the expulsion takes effect; and
(b)   the expelled member ceases to be a member of the Association.”

In MCNSW v AFIC 2009 an issue arose as the validity of a proposed motion to be put to AFIC’s Federal Congress for the expulsion of the then State Council for NSW (a predecessor of UMNSW). There had been no prior decision by the Exco of AFIC for expulsion. Bergin CJ in Eq held that it was not possible to expel a State Council in that way – it was necessary for there to have been a prior decision by the Exco. But her Honour rejected a broader argument by the State Council that the Constitution was inconsistent with the expulsion provisions in the Model Rules:

“[19] The plaintiff submits that the Constitution is inconsistent with and excludes r 32. It was submitted that r 5(7) specifically provides for the expulsion of member Societies and that the Court should infer that a deliberate decision has been made not to provide for the expulsion of State Councils. It was also submitted that such a conclusion is supported by the fact that State Councils have numerous rights referred to in the Constitution which are not afforded to member Societies. These include the right to be represented at the Federal Congress and to vote and a right to have a Chairman as member of the Federal Council, to nominate candidates for Executive Committee positions, to vote in the election of the Executive Committee and a right to propose resolutions at Federal Congress.

[20] Rule 5(7) relates to member Societies. It deals with both acceptance and expulsion of those Societies and requires such to be ‘in accordance with the provisions’ of the Constitution. There is nothing in the Constitution dealing with a regime or scheme to be followed for the expulsion of such member Societies.
[21] I am not satisfied that there is anything in the Constitution as it relates to the expulsion of ‘members’ that is inconsistent with the Model Rules. Section 5(7) is not an exhaustive provision covering expulsion of members. It deals specifically with the expulsion of a ‘member Society’, and in my view is not inconsistent with r 32. Indeed r 32 provides the regime for the expulsion process.”

In that case it was an agreed fact that the State Council was a member of AFIC: see at [4]. A similar agreement is recorded by Stevenson J in MNSW v AFIC 2016 at [35]. Here, UMNSW has made a formal submission that State Councils are not members of AFIC. The issue of whether or not UMNSW was required to be a member of AFIC as a State Council was argued in the Court of Appeal, and it was held that it was: see 2021 CA at [14]. I am bound by that conclusion. That point immediately undermines any attempt to distinguish between State Councils and other member societies.
In my respectful view there is force in the analysis of Bergin CJ in Eq, quoted above. The first sentence of cl 5(7) of the AFIC Constitution suggests that there is a power to expel member societies, but the Constitution does not go on to make any provision for such expulsions, for example with respect to the mechanisms or criteria involved. As her Honour suggested, the Model Rules fill that gap, and can thus be seen as being not only not inconsistent with the AFIC Constitution, but complementary. Applying the expulsion provisions in the Model Rules does not alter, impair or detract from the operation of cl 5(7).
Neither cl 13(e) nor cl 18(e), as invoked by the plaintiffs here, leads to a different result. Clause 13(e) authorises Federal Congress to adjudicate upon all matters of controversy and differences between, inter alia, the Federal Council, the Executive Committee and State Councils. Expulsion of a State Council might well arise following controversies involving or differences between, say, the Exco and the State Council. But most such disputes would fall short of producing such a consequence. There is no inconsistency between this general power of adjudication and a more specific set of provisions dealing with the extreme sanction of expulsion. Further, the Court of Appeal held that cl 13(e) did not extend to enable the removal of a State Council: 2021 CA at [84]. There is thus no overlap in operation between that clause and the expulsion provisions in the Model Rules.
Clause 18(e) empowers the Exco to “exercise emergency powers and directly intervene in the affairs of a State Council only if the situation warrants immediate action by AFIC”. Exercising a power of intervention may be one way of responding to issues arising with respect to a State Council. But there is nothing in the provision to suggest that it is the only power available to the Exco to respond to such issues.
The plaintiffs make three further arguments which they say should lead me to conclude that the conclusion of Bergin CJ in Eq should now be regarded as plainly wrong:

They suggest that the reference in cl 5(7) to acceptances or expulsions of members being “in accordance with … relevant resolutions of the Federal Congress/Council” suggests that only bodies “above” the Exco can expel a member society.

They argue that the decision of Bergin CJ in Eq is inconsistent with [81] of the Court of Appeal’s decision (which was delivered well after her Honour’s decision).

They say it is also inconsistent with an aspect of the decision of Stevenson J in AFIC v MNSW 2016 at [54]-[56].

As to the first argument, in substance this raises the issues of whether the relevant “committee” for the purposes of rule 33 is the Exco, and whether or not the appeal right to a general meeting provided for in rule 34 of the Model Rules should be exercised in a Federal Congress meeting. I address those issues below. Leaving those points aside, cl 5(7) can sit consistently with the Model Rules. That clause says very little about how expulsion is to be approached, other than that it is to be “in accordance with … relevant resolutions of the Federal Congress/Council”.
The second argument is founded on [81] of the Court of Appeal’s decision, in which Bathurst CJ stated:

“So far as the Executive Committee is concerned, whilst it may intervene in the affairs of a State Council under cl 18(e) of the AFIC Constitution, its powers do not extend to the removal of a State Council, and in any event are subject to ratification by the Federal Council acting on behalf of the Federal Congress.”

The plaintiffs’ argument has no merit. The statement is directed to the extent of power under cl 18(e). As noted above, Bathurst CJ went on at [84]-[87] to conclude that the expulsion powers in the Model Rules could be employed against a State Council.
As to the third argument, the dispute determined in MNSW v AFIC 2016 related to whether a Federal Congress meeting was a “general meeting” for the purposes of s 22A of the Tasmanian Act: see at [23]-[26]. That provision authorised 10% of members to requisition a “general meeting”. It had been relied upon by the then NSW State Council and others to call a meeting for the purposes of considering a no confidence motion in members of the then Exco. Under cl 28(1)(c)(iv) of the AFIC Constitution, such officer-bearers could be disqualified by effect of a motion of no confidence passed by special resolution at a meeting of either Federal Congress or Federal Council. The issue was whether the general meeting requisitioned under s 22A required that a meeting of Federal Congress be convened. Stevenson J held that it did. His Honour concluded at [54] that “a meeting of the Federal Congress of AFIC is also a general meeting of AFIC”.
I address below whether or not there is some tension between that decision and the decision of Bergin CJ in Eq, and whether the conclusion of Stevenson J is applicable here as regards expulsions. For current purposes, however, the conclusion that a general meeting of AFIC requisitioned under s 22A is to be a Federal Congress meeting does not throw any significant light on whether or not the AFIC Constitution is inconsistent with the expulsion provisions in the Model Rules.
Taking account of these arguments, I do not consider that the conclusion of Bergin CJ in Eq that the expulsion provisions of the Model Rules could apply to State Councils is plainly wrong. On the contrary, I consider that it was and is correct.

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

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

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

The plaintiffs submit that the “committee” referred to in rule 33 of the Model Rules as having the power to expel members should not be understood, in the context of AFIC’s Constitution, as referring to the Exco. Rather, they submitted, it should be understood as a reference to the Federal Council. It was the Exco which took the initial expulsion decision against each of the plaintiffs.
In MCNSW v AFIC 2009 Bergin CJ in Eq proceeded on the basis that the committee was the Exco (see at [24]-[25]), but it appears that it was not suggested that the Federal Council might be the relevant body.
The plaintiffs first argument here is, in essence, that the Model Rules create a distinction between the “committee” and the “executive committee”. It is suggested that this structure echoes, broadly, the division between the Exco and Federal Council. The division drawn in the Model Rules is as follows:

Rule 21(1) states that the “affairs of the Association are to be managed by a committee of management constituted as provided in rule 23”. The committee has powers granted under rule 21(2) of the Model Rules, including “to control and manage the business and affairs of the Association”, and to “exercise all the powers and perform all the functions of the Association, other than those powers and functions that are required by these rules to be exercised by general meetings of members of the Association”.

The executive committee is empowered to “issue instructions to the public officer and the servants of the Association in matters of urgency connected with the management of the affairs of the Association during the period between meetings of the committee” (rule 29(2)).

A difficulty with this argument is that, for AFIC, no correlative distinction can be drawn between the committee and executive committee. Under the Model Rules the only difference in the composition of the two bodies is that the committee has, in addition to the officers of the association, “… other members” of the association as elected at the annual general meeting: rule 23(1)(b). However, for AFIC no number of “… other members” has been identified. No doubt that is because the AFIC Constitution makes its own provision for a tripartite structure. And the Federal Council is not constituted by all the Exco plus some elected members, in a way that might correlate to the executive committee. Rather, it is constituted (in terms of voting rights) by a subset of four members of the Exco, together with the President/Chairman of each State Council: cl 14. In this context there is no relevant distinction that can be drawn for AFIC between the committee and the executive committee of the kind referred to in the Model Rules.
The plaintiffs then argue that the body which most closely correlates in powers and position to the committee in the Model Rules (as opposed to the executive committee) is the Federal Council. They rely on cll 8-10 of the AFIC Constitution:

“8. Policy making and Ultimate Responsibility
The Federal Congress shall be the highest policy-making organ of the Federation, and shall have ultimate responsibility to achieve the objects and purposes of the Federation.
9. General Government and Control
The general government and control of the affairs of the Federation shall be vested in the Federal Council and it shall exercise its power as the governing body subject to this Constitution and the resolutions of the Federal Congress.
10. Management and Administration
The business and affairs of the Federation shall be manned and administered by the Executive Committee in accordance with this Constitution and the resolutions of the Federal Congress and the Federal Council.”

Under cl 13(a) the Federal Congress has power to “control, manage and administer the affairs of the Federation generally”. Clause 15(a) provides that the Federal Council has the power and function to “act for and exercise all the functions of the Congress between its meetings in all matters provided always that such actions or decisions must be ratified or reversed by the Congress” (thus picking up the power of Congress in cl 13(a)).
The Exco has powers and functions granted by cl 18, including to “manage and administer the business and affairs of the Federation”, and to “carry out decisions and resolutions of the Federal Congress and the Federal Council, and to exercise such powers and functions as may be delegated to it by them”.
Thus both the Federal Council and the Exco can be said to have executive functions and powers in administering the affairs of AFIC. And there is no doubt that the Exco does so subject to the wishes of the Federal Council. There is thus some potential force in the plaintiffs’ argument that it is the Federal Council which should be regarded as the committee for the purposes of the Model Rules.
As noted, rule 21(1) of those rules states that the “affairs of the Association are to be managed” by the committee, and rule 21(2) says that the committee “is to control and manage the business and affairs of the Association”. Within AFIC, the Federal Council has a greater degree of control than the Exco, in the sense that it is the superior body. However, the Exco has a greater practical role in the management of the affairs of AFIC. Under AFIC’s Constitution, the Federal Council is not permitted to meet more than four times per financial year: cl 40. In contrast, the Exco “shall meet for its business at such time and place as it shall think fit”: cl 43. Under the Model Rules, the committee “is to meet at least once in each month at any place and time the committee determines”. The Federal Council could not act consistently with that direction. That point is not conclusive, because the Model Rules give way to the Constitution pursuant to s 16(3) of the Tasmanian Act. Nevertheless, the Exco is the more flexible body of the two, and in practical terms was always likely to be the main executive decision-making body for AFIC, thus correlating to the role of the committee under the Model Rules.
AFIC submits that under cl 15 of the Constitution the Federal Council’s powers are to exercise the functions of Congress between meetings. It says that for the Federal Council to be the convening entity for the purposes of rules 33-34, “there must be an anterior finding that the powers granted by those Rules are also granted to the Congress and so can be exercised in effect by the Council as the Congress’ delegate”. It says no such construction is sensibly available. I am not persuaded that such a construction could not be available, given that the Model Rules might be seen as adding to the powers of the Federal Council. However, it is not necessary to determine the issue, as I am not otherwise persuaded by the plaintiffs’ arguments on this issue.
On balance, I conclude that it is the Exco of AFIC which constitutes the relevant “committee” for the purposes of rule 33 of the Model Rules.

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

The plaintiffs argue that their appeals against expulsion, as provided for by rule 34 of the Model Rules, should have gone to the Federal Congress, and not (as they did) to the type of SGM provided for under the Model Rules. In support of this proposition they rely on cl 34(1)(b) of the AFIC Constitution and the decision of Stevenson J in MNSW v AFIC 2016.
Clause 34 relevantly provides:

“(1) The meetings of the Congress shall be as follows:
(a) Annual/Bi-annual Meetings.
(b) Special Meetings, if required.
(2) The meetings of the Congress shall be called by the Secretary of the Federation:
(a) In the case of Annual/Bi-annual meetings as provided by this Constitution.
(b) In the case of Special Meetings, upon receipt of written request setting forth the subject of such a meeting and signed by the Chairman-President of at least four (4) State Councils for an on behalf of their respective Councils, provided always that the interval between the meetings of the Congress shall not be less than four (4) months, except in case of urgent need.”

AFIC’s argument in response is simple: rule 34 provides for a particular mechanism for appeal, in the form of a special general meeting as provided for by the Model Rules. If it were to go to the Federal Congress, then the constituency would be different. Rule 34 contemplates voting by the members of the association, with each having a single vote (see rule 18 taken together with rule 34(3)-(5)). In contrast at Federal Congress meetings, pursuant to cll 12 and 46 of the AFIC Constitution, the State Councils have two votes. Senior counsel for AFIC submitted that there would be a “distortion of the voting base if one was to construe the reference to a special meeting” in the Model Rules as referring, as regards AFIC, to a meeting of Federal Congress.
In my view AFIC’s arguments should be rejected. Indeed, the very points AFIC makes point in the other direction.
A key part of AFIC’s argument was that, pursuant to s 16(3) of the Tasmanian Act, rules 33-34 of the Model Rules are “deemed to form part of the rules of the association in the same manner and to the same extent as if they were contained in the rules so lodged”. It says that the meaning, then, of rules 33-34 “is to be gleaned not from the Model Rules but from the Constitution into which they have been transposed”, citing Herzfeld and Prince’s Interpretation (Thomson Reuters, 2^nd edn, 2020) at [23.90] in support of that proposition.

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

Conclusions with respect to the Model Rules

For the reasons set out above, my conclusions with respect to the operation of the expulsion provisions in the Model Rules are as follows:

The powers of expulsion in rules 33-34 of the Model Rules were not wholly excluded by virtue of what happened when AFIC was first incorporated.

Nor are those rules excluded or modified – as regards State Councils, or more generally – because of inconsistency with cll 5(7), 13(e) and 18(e) of the AFIC Constitution.

The power to expel members extends to State Councils, and those powers are not limited to expulsion for matters connected to their capacity as member societies, as opposed to being constitutive State Councils, of AFIC.

The relevant “committee” for the purposes of rule 33 of the Model Rules is the Exco.

The SGM provided for in rule 34 of the Model Rules is to be constituted by a special meeting of the Federal Congress, as provided for under the AFIC Constitution. Here, no such meetings have yet been held. As a result, the appeal rights provided to the plaintiffs by rule 34 remain unfulfilled, and the plaintiffs remain members of AFIC.

I do not decline to grant relief with respect to this issue.

These conclusions are sufficient to found relief. But lest I am wrong, and in any event, it is appropriate that I address all of the issues raised by the parties.

Issue (3): The claimed breaches of procedural fairness

UMNSW claims that it was denied procedural fairness in the decisions to expel it. The focus of its complaint is what was notified to it prior to the Exco’s expulsion decision on 11 March 2022. It complains it was not informed of:

“any meeting of the AFIC Executive Committee in which it would decide whether UMNSW would be expelled from AFIC”;

“the charge that UMNSW had continued to ‘retain’ non-AFIC members as members of UMNSW”; or

“a requirement that UMNSW was to provide a commitment to AFIC to inter alia ‘exclude’ non-AFIC member societies from membership of UMNSW”, that is, as opposed to excluding such non-AFIC members from participating in AFIC affairs.

ICV only complains that it was denied procedural fairness with respect to the first of these points; in its closing submissions it dropped its complaint about the other two points. Its complaint with respect to the first matter seems to hinge, only, upon inadequate notice being given of the SGM. I address that point separately below. In what follows, thus, I will focus on the position of UMNSW.
The plaintiffs also raised an issue in their respective amended points of claim that there was no power to expel them “as the dispute was required to be the subject of mediation and, if required, arbitration under the terms of the AFIC Constitution”. Clause 60 of the AFIC Constitution deals with mediation and arbitration of “any dispute arising between the members, societies, or institutions, State or Territory Councils and/or any instrumentality of the AFIC”. I received no substantive submissions on this issue. I asked on the first morning if the point was pressed, and had the following exchange with counsel for the plaintiffs:

“DIXON: The only aspect that is pressed is that there was an ability under the AFIC Constitution to take that path. It is a path that is contemplated by various rules, including r 13(e), and it just adds to the denial of procedural fairness aspect of it, because there was a real dispute and the guillotine came down before the parties had a chance to ventilate and agitate those matters.
HIS HONOUR: In effect, it is put as a particular of lack of procedural fairness.
DIXON: Yes.
HIS HONOUR: Dr Blount, is the same true for you?
BLOUNT: And I adopt the reply given to your Honour by Mr Dixon.”

So put, the reference to arbitration does not seem to add anything of substance to the procedural fairness complaint, and I will not address it separately.
AFIC accepted that the plaintiffs were entitled to procedural fairness in the decision-making process (as to which, see eg McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470 at [80]-[102] per Campbell J (Burning Palms)). However, it submitted that if there was any breach of procedural fairness by the Exco (which it denied) this was “cured” by the subsequent appeals to the SGMs.
The first complaint raised by UMNSW is that it was not informed of the fact that the Exco would hold a meeting to decide whether UMNSW would be expelled from AFIC. That complaint is without merit. AFIC’s letter of 24 February 2022 is headed “Show Cause Notice”, and includes the following:

“We put UMNSW on notice that the AFIC Executive Committee considers UMNSW’s conduct in that respect to be detrimental to the interests of AFIC. The Committee is presently of the view that if this conduct continues it will have little choice but to expel you from AFIC pursuant to rule 33 of the Model Rules in Schedule 1 of the Association Incorporation (Model Rules) Regulations 1997 (Tas).
If we do not receive a satisfactory response within 14 days from the date of this letter, UMNSW can expect to receive a notice under rule 33(3) of the Model Rules.”

Very clear notice was thus provided of the Exco’s intention to consider expelling UMNSW pursuant to the Model Rules. That was sufficient to communicate that a meeting of the Exco would be convened to consider that issue. For completeness, I note that ICV also received a show cause notice of the same date.
UMNSW’s second complaint is that it was not informed of the charge that UMNSW continued to retain non-AFIC members as members of UMNSW. Again, the complaint has no merit. UMNSW was clearly informed of that charge by letters sent from AFIC dated 14 January 2022 and 11 February 2022. In the latter letter, the Secretary of AFIC stated that “it is AFIC’s understanding that the following nine members of UMNSW referred to in paragraph [76] of the Court of Appeal’s decision who were not members of AFIC currently remain members of UMNSW”, before listing nine associations.
It is true that by letter dated 28 January 2022, UMNSW had sought “the facts, matters and circumstances” relied upon in support of the complaints raised in the 14 January letter. To some extent those were provided by the 11 February letter, which then led to a fairly detailed response from UMNSW dated 25 February 2022. It is not for me to engage in the merits of the arguments. The relevant point is that the core allegation about continuing to retain non-AFIC members as members of UMNSW had been notified in advance.
The third complaint has more substance. In its expulsion letter of 11 March 2022, the Exco gave three “grounds for the expulsion”. The first was the failure to admit three societies as members of UMNSW. The second was the continued membership in UMNSW of the nine named societies which were not members of AFIC. Both of these points had been clearly raised in the letters of 14 January 2022 and 11 February 2022. The third ground, however, was expressed in this way:

“The failure of UMNSW to provide a commitment to AFIC to;
(i) admit to membership of UMNSW all NSW based AFIC member societies who seek membership of UMNSW; and
(ii) exclude non-AFIC member societies from membership of UMNSW.”

In its letter of 14 January 2022, AFIC had stated as follows:

“Given the history of non-compliance, AFIC requires an undertaking from UMNSW that it will cease and desist from allowing non-AFIC members participation and voting rights in AFIC affairs and that it will allow recognised NSW AFIC members membership rights to UMNSW by 28 January 2021. Should an undertaking not be provided, we will seek advice on pursuing appropriate action.”

The point made in the third ground about not providing a commitment about admitting NSW-based AFIC members to membership of UMNSW had been raised by the 14 January 2022 letter. However, the other part of the ground is expressed more broadly. Whereas the 14 January letter sought a commitment that UMNSW will “desist from allowing non-AFIC members participation and voting rights in AFIC affairs” – a commitment which potentially could have been given without completely excluding non-AFIC members from participation in and membership of UMNSW – the expulsion ground was about excluding non-AFIC members societies from membership of UMNSW altogether. The 11 February 2022 letter also had not foreshadowed this broader concern.
This is not a distinction without a difference. For example, Dr Jneid, the President of AFIC, was cross-examined about the position he had taken with respect to the ICQ, which also had member societies which were not members of AFIC. He accepted that “there has never been any requirement from you, as president, or any member of the AFIC executive committee to require ICQ to expel the non-AFIC member societies” (Tcpt, 7 June 2022, p 150(32-36)). But he sought to justify this by saying “[t]hey only allowed AFIC members to participate in AFIC affairs” (Tcpt, 7 June 2022, p 151(10-11)).
In the result, one ground of the Exco’s decision had not been notified in advance to UMNSW, such that it could have a chance to consider its position and respond. In the circumstances, I find that the Exco’s decision to expel UMNSW was not taken in accordance with the requirements of procedural fairness.
However, that conclusion does not necessarily mean that the ultimate expulsion decision was invalid. As noted above, under rules 33-34 of the Model Rules if an appeal against an expulsion is instituted then the expulsion does not take effect until the conclusion of the SGM convened to hear the appeal (and only then if there is a vote in favour of expulsion). Pursuant to rule 34(3), the committee may place before the meeting any details of the grounds and reasons for the expulsion, and the expelled member “is to be given an opportunity to be heard”. There is thus an express manifestation of a right to be heard.
In administrative law it has been recognised that where there is a multi-step decision-making process the question is whether “the decision-making process, viewed in its entirety, entails procedural fairness”: South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39 at 389 per Mason CJ. Where there is a right of appeal this may “cure” any breach of procedural at the first decision-making stage if the appellate body reconsiders the matter afresh after affording the affected person a proper opportunity to be heard: see eg Ridge v Baldwin [1964] AC 40 at 79 per Lord Reid; Twist v Randwick City Council (1976) 136 CLR 106; [1976] HCA 58 at 115-116 per Mason J. Some judicial officers have preferred to see this principle as founded upon issues of discretion: see eg Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 at [55] per Spigelman CJ, [154]–[164] per Fitzgerald JA; Rose v Boxing NSW Inc [2007] NSWSC 20 at [89] per Brereton J.
Another, perhaps overlapping, way of understanding the issue is that the second decision may simply replace the infected decision with a valid one: note Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167 at 181 per Brennan J. The first decision might be said to have been superseded: note Calvin v Carr [1980] AC 574 at 592E (PC). For that to have occurred, it is necessary that the second decision is self-supporting, and is not dependent on the first: cf Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212; [2021] HCA 2 at [49] per Kiefel CJ, Bell, Gageler and Keane JJ. It is also necessary that the rule in question does not give the person in question a right to a fair hearing at both stages in the sense that any breach at any stage will require the procedure to start again: note Calvin v Carr at 592-593.
I do not need to address this debate further here, save to note that where a second decision overtakes the first, then the ultimate issue is whether or not the operative decision is infected with a breach of procedural fairness.
As regards voluntary associations, AFIC relied upon Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601; [1948] HCA 35, in which a majority of the High Court held that an executive council decision to expel certain members from a trade union was infected by a breach of natural justice, because one committee member took part both as prosecutor and decision-maker. Nevertheless, those affected had appealed (unsuccessfully) to the annual convention of the union. On that basis, the expulsion decisions were not overturned. As Dixon J stated at 631‑2:

“By so appealing they treated the expulsion, not as regular, but as having an operation under the rules and as proceedings to be reviewed, and, if the convention thought fit, corrected by the convention. The convention had complete authority over the whole question of expulsion, and it was for it to decide whether the findings and the dismissals from membership should be set aside, varied or confirmed. The convention confirmed them.

I thus give limited weight to Dr Jneid’s presumptive denial of having had an improper purpose. Needless to say, before I can make any such finding of improper purpose I must still be positively satisfied of it. Further, such a finding is a relatively grave one and would not be made lightly, taking account of the principle manifest in s 140 of the Evidence Act.

Conclusions on the membership issue as regards the Exco

As I have explained above when dealing with the quorum issue, at the time the expulsion decisions were taken there were purportedly five members of the Exco (one of whom, Ms Adam, I have concluded was not a valid member). The only one of those who gave evidence was Dr Jneid. The evidence makes relatively clear that he was the dominant personality in the Exco, although, as I have noted above, he was not so dominant that Mr Trad felt he could not make some criticism of him in relation to the Perth property. In any event, I see no real basis to distinguish between members of the Exco in reaching conclusions as to their purposes given that I have only heard from one of them, and given that no submissions have been made by AFIC that some such careful delineation should be undertaken. Further, my conclusions as to the purposes are drawn from the objective facts rather than from any subjective evidence of intentions.
I reach the following conclusions on this issue:

AFIC had not complied with the agreed protocol as regards notifying either plaintiff of the membership applications which formed the relevant basis for expulsion.

The applications from the new applicants manifest, in both jurisdictions, a degree of coordination which I infer occurred at the instigation of members of the Exco of AFIC.

AFIC failed to provide either plaintiff with a reasonable opportunity to process the applications before moving to expel them. Most notably, the Exco expelled ICV for refusing to admit at least one society that had not yet applied for admission, and two others which had applied the day before.

UMNSW indicated that it sought to rely on what occurred as regards ICV in support of its own claim of improper purpose on the basis, in effect, that it was all part of one course of conduct. I accept that such reliance is appropriate.
I do accept AFIC’s submission that the non-overlapping membership issue had been an ongoing source of concern.
Nevertheless, in the circumstances outlined it is apparent that the applications were part of an attempt by the Exco to set up a basis for expelling the plaintiffs, regardless of its own fault in creating the situation (by not following the protocol), and regardless of how the plaintiffs might deal with those applications. The underlying concern may have been genuine but the way the situation relating to the new membership applications was created and dealt with was an artifice.

The events relied on with respect to the claimed discriminatory treatment

The plaintiffs argue that AFIC acted inconsistently by seeking to give strict effect to its constitutional requirements as regards membership with respect to the plaintiffs, where it had not taken that approach in relation to other State Councils or in relation to other issues of membership. I will address these two aspects in turn.

Claimed inconsistent treatment of the plaintiffs compared to ICQ

With respect to the first aspect, the plaintiffs rely in particular upon the fact that ICQ was not targeted for inconsistencies that existed between its membership and AFIC members in Queensland. The plaintiffs contend that this was because ICQ was not critical of Dr Jneid’s leadership, in contrast to the plaintiffs. Key events relied upon the parties are as follows.
On 29 October 2020 the AFIC Secretary wrote to ICQ with respect to ICQ’s AGM, planned for 1 November 2020. AFIC congratulated ICQ on having an “excellent constitution which concords on most points with the AFIC constitution”. AFIC nonetheless took issue with the fact that “there are many member societies with ICQ that are not AFIC members and there are AFIC member societies that have not yet been admitted into ICQ”. AFIC then quoted cll 5(7), 5(8) and 20(h) of the AFIC Constitution, which provide as follows:

“5(7) … Only member societies of the AFIC which have paid their membership subscription to the AFIC are eligible to participate in the affairs of the AFIC or the relevant State Council
5(8) A society which has been admitted as a member of the Federation according to the requirements of clause 5(3)(c) shall hereby be admitted as a member of the respective State Islamic Council. …
20(h) A candidate who wishes to become an office bearer of the [State] Council must possess the following qualifications:
(i) He must be a financial member of a member Society which is a member of the Council and AFIC.”

AFIC then identified that some of the nominees for the ICQ AGM were nominated by non-AFIC member societies, and stated:

“The next step from here: …
A – Immediately issue all member societies a notice of cancellation of the ICQ AGM planned for 1 Nov 2020.
B – Amend the ICQ nomination form to ensure that it has clear instructions including instructions that only societies that are members of AFIC may participate in the AGM and elections and that only members of AFIC member societies maybe nominated for positions on the ICQ executive committee.
C – Invite all QID societies that are members of AFIC to participate in the AGM as per the relevant clauses of the ICQ and AFIC constitutions…”

Notably, there was no suggestion or direction from AFIC that ICQ expel its non-AFIC member societies.
On the same day ICQ postponed the ICQ AGM on the basis of membership issues. On 4 November 2020 a notice was sent out by ICQ saying that the AGM was rescheduled for 13 December 2020. The notice also stated as follows:

“We have obtained legal advice and also consulted the ICQ membership, and we are not proceeding to hold the AGM in order to remain compliant with ACNC and OFT requirements. As a result of this, nominations will only be accepted from organisations who are members of both ICQ and AFIC. All ICQ members are still invited and expected to attend.
We recognise there are still some constitutional issues between ICQ and AFIC that need to be resolved. These will be addressed by the new executive committee once the AGM has been held.”

What is notable about this notice is that non-AFIC member societies in ICQ were to be prevented from participating in the affairs of AFIC in the sense of accepting nominations from those societies which were members of AFIC, but non-AFIC member societies were not otherwise excluded from membership of ICQ. There is no evidence before me whether steps were subsequently taken by ICQ to address the “constitutional issues” referred to. But it appears that ICQ continued to have members which were not members of AFIC (see below).
On 9 December 2020 Mr Jamal wrote to Dr Jneid and Mr Trad, stating the below:

“Unfortunately, not all Muslim Societies or Organisations based in Queensland are members of AFIC.
My efforts to get all organisations under the ICQ banner and then onto AFIC was not acceptable to some AFIC/ICQ members.
I cannot categorically say that AFIC represents ALL Muslims in my State”

In my view (contrary to the position taken by the plaintiffs), in this letter Mr Jamal was speaking about Muslim societies in Queensland which were neither members of ICQ nor AFIC. That interpretation is supported by Dr Jneid’s response on 9 December 2020, which stated:

“I am not asking you to say that we are representing all Muslims in Queensland. What we are saying is that ICQ, being member of AFIC recognises AFIC as national peak representative.”

It appears that the approach taken by ICQ in November and December 2020 was considered satisfactory by Dr Jneid and AFIC. So much emerged in cross-examination of Dr Jneid (Tcpt, 7 June 2022, p 150-1, emphasis added; see also at 131-2)

“Q. You know that to this day ICQ continues to have non-AFIC number societies. Correct?
A. Think so.
Q. You think so?
A. I - yes, probably.
Q. It's not a concern for you?
A. It is concern for me, but the concern was - is the interfering of AFIC affairs, you know, the other society is non-member of - it's completely different, the relation between the New South Wales and Victoria and ICQ. We recommend - I mean, we spoke with United Muslim of New South Wales and we told them, you know, like, when the affairs of AFIC has to be only member of AFIC to deal, you know, was there any matters or any election. And ICQ, they always--
Q. What I want to suggest to you Dr Jneid, is that is not what happened. You allowed ICQ to have non-AFIC members but you didn’t allow UMNSW to have non-AFIC members, and that was the basis upon which you expelled them. Correct?
A. I come back to the - to the answer as I said before. I did not, because AFIC [sic – ICQ] was cooperating with us as AFIC, and I [sic – it] was going to do the right things, specially when it comes to the meetings, when it comes to the election, when they come to any other matters, you know. They only allowed AFIC members to participate in AFIC affairs.
Q. Is your evidence that as long as the State council cooperates with AFIC, they're allowed to have non-AFIC members in their membership?
A. If they cooperate in the - according to the constitution, we - in that - if they cooperate according to the constitution and they say, "Yes, we will follow AFIC instruction, and work with AFIC," they give you at least indication they are going to be working with us, they going to be following AFIC constitution, you know, we can work together until that all the society become member of AFIC.”

Thus Dr Jneid’s position appeared to be that ICQ was different from the plaintiffs because it had taken steps to exclude non-AFIC members from “participating in AFIC affairs” (presumably in particular as regards election of State office-bearers), it had worked with AFIC, and was prepared to continue working with AFIC to address membership issues.
The requirement for overlapping memberships carries within it the potential for such issues to arise. What is to happen, for example, if the State Councils have a requirement for membership (such as registration with the ACNC) which AFIC does not have? Or if one level considers a member suitable for membership but the other does not? Moreover, in community associations such as those in dispute here some allowance should be made for a failure to achieve perfection in administration of the rules. A lack of complete consistency as regards administration does not necessarily lead to a conclusion that those involved are acting for an improper purpose.
That being said, there is one inconsistency here which is relatively stark. As I have addressed above with respect to issue (3), relating to procedural fairness, one of the grounds given by the Exco of AFIC for the expulsion of UMNSW was the previously unnotified requirement to commit to “exclude non-AFIC member societies from membership of UMNSW”. As addressed above, this is a materially broader requirement than excluding members from participating in the affairs of AFIC.
This situation is different as regards ICV. One of the grounds given by AFIC for its expulsion was a “failure to commit to AFIC that any ICV member who is not a member of AFIC will not participate in ICV elections, votes on changes to the ICV constitution or any other matter that will have any impact on AFIC”. That is a narrower ground than the UMNSW equivalent, as it is more directed to participation in AFIC affairs. It is broadly consistent with the approach apparently taken by the Exco to ICQ.
Another fact worth noting here is that in the minutes of the 22 December 2022 meeting of the Exco, seven days after the Court of Appeal decision was handed down, the following is recorded with respect to advice received the day before from counsel (noting no claim for privilege was made):

“Counsel told AFIC that before invoking Rule 33 [of the Model Rules], AFIC should write to the state council and get a written commitment from them to abide by AFIC’s membership rules, especially to stop non AFIC members from voting and to ensure that AFIC members are given their right to vote. Counsel indicated that it would be better to send this letter of commitment to all counsels [sic] that are at odds with the AFIC constitution.”

In fact, such a letter was only sent to the plaintiffs, as Dr Jneid accepted (Tcpt, 7 June 2022, p 133). There is perhaps some ambiguity as to who might be regarded as being at odds with the AFIC Constitution, but it would be reasonable to understand that to extend to all State Councils which had non-AFIC members as members. That would have included at least ICQ.
In these circumstances, it is apparent that at least UMNSW was targeted in a manner that was inconsistent with the way that ICQ had been treated. One of AFIC’s grounds of expulsion of UMNSW – failure to commit to “exclude non-AFIC member societies from membership of UMNSW” – was something that the Exco was prepared to accept in ICQ. That inconsistency may have been at least in part because ICQ had proved willing to compromise to some extent. But, consistently with my findings on issue (3), the process that the Exco had engaged in on this issue was itself flawed – the inconsistent point was raised without notice to UMNSW. Further, all of this was occurring in the immediate aftermath of AFIC having lost its appeal relating to its earlier attempt to exclude UMNSW.
I conclude that this course of conduct manifests some animus by Dr Jneid and the Exco towards at least UMNSW as compared to other State Councils who were in a similar position.
I note that the plaintiffs put other arguments about inconsistency between the membership of State Councils and AFIC, including that the constitutions of some State Councils allowed societies to join which could not join AFIC because they would be too small. I do not consider it necessary to address this point, as it would not advance things further than the evidence I have just addressed.

Claimed inconsistent conduct with respect to membership of societies

The plaintiffs’ argument on this point was that Dr Jneid continued to hold membership in many societies contrary to the prescription in cl 5(3)(b) of the AFIC Constitution – described by counsel for UMNSW as an “anti branch stacking” provision – which provides as follows:

“5. Structure and Membership of AFIC
(3)(b) A person who is already a member of the Federation by virtue of membership in a Society may not enrol as a member of another Society unless he resigns his membership in that Society.”

This conduct of Dr Jneid was argued to reflect a superficial commitment to the AFIC Constitution.
Documents tendered by UMNSW indicated that Dr Jneid had been a member of the following associations when they applied to be incorporated (and noting Dr Jneid’s responses made in cross-examination):

International Humanitarian Aid Inc, being a member from at least 30 January 2013 – Dr Jneid said, as regards still being a member: “Probably, yes. I’m not sure” (Tcpt, 7 June 2022, p 156);

Muslim Youth Support Centre Western Australia Inc from at least 6 January 2014 – Dr Jneid said he had resigned from this, “but I can’t recall how” (Tcpt, 7 June 2022, p 161);

Muslim Defence League from at least 5 November 2014 – Dr Jneid said “I did not remove myself, the - the executive committee of this people should removed them, not - I don’t remove myself” (Tcpt, 7 June 2022, p 156);

Ahlu Sunnah Wal Jamaah Inc from at least 21 August 2015 – Dr Jneid claimed to have resigned from this association (Tcpt, 7 June 2022, p 157), but he did not produce evidence of this, despite a call being made for such evidence;

Muslim Public Affairs Council from at least 15 September 2015 – Dr Jneid said he was definitely not a member (Tcpt, 7 June 2022, p 160);

Fremantle and District Islamic Association Inc from at least 14 December 2015 – Dr Jneid said he had helped establish this body, as he had for many others, but “[u]sually, I resigned it's just - they just take over themself and then they have their own meeting and put their own executive committee”, although for this one “I can't recall if I told them, you know, because they knew I'm not going to be member of this societies” (Tcpt, 7 June 2022, p 159).

I find that Dr Jneid has been, and still is, a member of more than one AFIC member society at the one time, contrary to cl 5(3)(b) of the AFIC Constitution.
In my view little turns on this. It does show some inconsistency by Dr Jneid in his application to constitutional requirements. However, as mentioned above at [298], inconsistency of itself does not advance matters very far. This issue of individual memberships is distinct to a significant extent from the issue of whether or not non-AFIC members were members of the plaintiffs or vice-versa. I do not consider that it advances the arguments relating to improper purpose.

Conclusions on the claimed improper purpose of the Exco

I have found as follows:

Dr Jneid does not appreciate receiving criticism. He has sometimes taken steps to avoid being held accountable which reflect poorly on him. But Dr Jneid and the Exco have been the subject of repeated criticisms by most of the State Councils, not just by UMNSW and ICV.

The membership applications sent to the plaintiffs in January to March of this year were part of an attempt by the Exco of AFIC to set up a basis for expelling the plaintiffs, regardless of its own fault in creating the situation (by not following the protocol), and regardless of how the plaintiffs might deal with those applications. The underlying concern of AFIC may have been genuine but the way the situation relating to the new membership applications was created and dealt with was an artifice.

One of the grounds given for the expulsion of UMNSW indicates that it was targeted in a manner that was inconsistent with the way that ICQ had been treated. The course of conduct manifests some animus by Dr Jneid and the Exco towards at least UMNSW as compared to other State Councils which were in a similar position.

The improper purpose alleged by the plaintiffs is to the effect that the intent was to remove them as prominent critics of the Exco and to replace them with bodies that supported the Exco and the President in the face of the impending elections. ICV put it a little more broadly: “to ensure that the President and members of the Executive Committee of AFIC retained control of the affairs of AFIC”.
As I have noted, the holding of a Federal Congress to elect new office-bearers is long overdue. On 12 February 2022 the Federal Council scheduled the Congress for 4-5 June 2022. That was put on hold following the instigation of these proceedings. In any event, the elections were to be held relatively soon after the events described above.
The plaintiffs referred to what was said at the SGM held on 9 April 2022 to hear ICV’s appeal from its expulsion (which ICV did not attend). Mr Trad is recorded in the minutes as saying the following in response to a query about whether this dispute would end up in court:

“Anybody who has property must be prepared to defend it. The more assets you have, the more wolves you have outside who want to grab them. In the end, this is a fight to control the substantial assets of AFIC because this organisation has been successful and had built the schools you see in different States. People want them. They covet power, they covet assets and it all depends on the morals and ethics of the person you are dealing with.”

I note that Dr Jneid gave evidence that AFIC controls assets worth about $50 million and has annual income of around $3.5 million (Tcpt, 7 June 2022, p 172). As I have explained above, the views of Mr Trad are of limited relevance.
Of more note is what Dr Jneid is recorded as saying at the SGM after Mr Trad had spoken (emphasis added):

“When I took over as President, the AFIC has a $13m debt and was going to go bankrupt with money owed to lawyers and the banks. No bank ever wanted to give AFIC $10m. We had to fight. I spent 4 months here in the office, conducting my business while trying to clean up the mess. This is why we have to be careful who takes over in the next election and to help AFIC because AFIC helps every centre and every mosque and also, we started the schools and colleges as well.”

This statement was made in support of the argument for confirming the expulsion of ICV. It suggests that part of what Dr Jneid was seeking to achieve with the expulsion of ICV was directed to who might take control at the forthcoming elections.
Even given this evidence, the ends sought to be achieved by the Exco in engaging in the artifice relating to the new membership applications is not pellucidly clear. As noted, I have found that Dr Jneid was somewhat adverse to criticism. And the impending elections were no doubt part of the context of the expulsion decisions, as reflected in what was said at the SGM confirming the expulsion of ICV.
In any event, whatever the Exco’s motives were for its expulsions decisions, it is evident that the Exco used the artifice of the new membership applications as a basis for expelling the plaintiffs regardless of the merits of the point. That cannot be regarded as a good faith exercise of the power of expulsion granted by rule 33 of the Model Rules; that is to say, that purpose of using that issue in that way was not a proper purpose. That conclusion is reinforced, as regards UMNSW, by my finding of some degree of animus towards it by Dr Jneid and the Exco.
The decisions of the Exco were not only put on the ground of failing to admit the new members, but also on the ground of having admitted members who were not members of AFIC. That ground has not been undermined here.
In administrative law an unauthorised (or improper) purpose need not be the sole purpose to be invalidating; the question is whether the ulterior purpose “is a substantial purpose in the sense that no attempt would have been made to [take the action] if it had not been desired to achieve the unauthorized purpose”: Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 at 469 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ. No party suggested that some different test should apply here.
To my mind the artifice employed with respect to the new membership applications is so significant that it infects the whole of both expulsion decisions taken by the Exco. A lack of good faith and proper purpose of the kind that I have found with respect to one ground of the decisions cannot neatly be segregated from the other ground, as though they were all independent. I find that the improper purpose was a substantial and actuating one in the sense described.
I thus conclude that the decisions by the Exco to expel each of the plaintiffs were infected by the improper purpose of employing an artifice as a basis for making the expulsion decisions. If those decisions of the Exco were considered by themselves, they would be invalid.

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

AFIC’s submission was that even if the Exco’s decisions were infected with an improper purpose, that did not lead to invalidity of the decisions made by the SGMs, which are the operative decisions.
UMNSW submitted that the SGM decisions were “all fruits of a poisoned tree, being poisoned by the initial improper purpose” (Tcpt, 8 June 2022, p 224). The plaintiffs also submitted that if account was taken of all the circumstances – including, in particular, the severity of the consequences of the decisions, being the “disenfranchisement of two of the largest States in the subsequent election” (ibid) – any discretion should not be exercised in favour of AFIC. They invoke the statement by the Privy Council in Calvin v Carr (being a procedural fairness case) that “there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result” (at 593). This, they say, is such a case.
An issue which bears some similarity to this issue is what occurs when a multi-member decision-making body has a minority of members who are shown to have been affected by a reasonable apprehension of bias. Different views on the issue were expressed in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [31]-[47] per Spigelman CJ, [84]-[103] per Basten JA, [237]-[253] per Campbell JA; see also Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 7^th edition, 2022) at [10.50]. On the “rotten apple” theory, if any member is so affected that is enough to invalidate the decision. On a broader view it is a matter of looking more broadly to all the circumstances. On another, it is a causation question – did the bias of the person/s in question affect the outcome?
The case of Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 concerned a situation where one person in a three member panel was found to be subject to a reasonable apprehension of bias. The plurality said at [48] that “the participation of others does not overcome the apprehension that Ms Hughes' interest in the outcome might affect not only her decision-making, but that of others”. This statement is perhaps more consistent with the “rotten apple” approach, although the issue was not examined in detail (note also Gageler J at [67]-[70]). The issue might now overlap with issues of materiality, which involve consideration of whether there is a realistic possibility that the error could have led to a different outcome: cf MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 [2021] HCA 17 at [2].
In my view it is not necessary to seek to resolve that debate here, as the analogy has limited force. The cases just mentioned involve consideration of the nature of the principle of apprehended bias, which involves application of the fair-minded lay observer test. The issue here is different, going to ascertainment of the purposes of a collective decision. The infection identified above was in the Exco’s decisions. The operative decisions are those of the SGMs (assuming here that those meetings were properly constituted). There are obvious and well-known difficulties in seeking to identify purposes of collective bodies, especially large ones. The purposes and intentions of the members of such a body are likely to be various.
No real attempt has been made by the plaintiffs to show that the member society delegates who attended of the SGMs were themselves infected with an improper purpose. There was some cross-examination of Dr Jneid seeking to show that he and members of his family were involved in a number of Western Australian societies that are members of AFIC. I have concluded above that Dr Jneid was and is a member of more than one member society, contrary to the requirements of the AFIC Constitution. However, insofar as this line of attack was meant to impugn the decisions at the SGMs on the basis of some kind of vote-stacking exercise I would reject the argument as not having been raised in the amended points of claim.
In substance the taint of improper purpose was said to arise by the connection to the Exco decisions. But to my mind it has not been established that the SGM decisions are so dependent on or connected to the Exco decisions as to be infected with the taint of the improper purpose actuating those decisions.
At the heart of my conclusion about the improper purpose of the Exco is the artifice relating to the new membership applications. Those facts were known to the plaintiffs by the time of the SGMs.
In the case of UMNSW, its “Appeal Submission” dated 21 April 2022, which was distributed to the member societies gathered for the SGM, touched on the issue, stating:

“In late January 2022, three AFIC member societies had applied to join UMNSW. UMNSW was in the process of processing their applications when AFIC expelled it. UMNSW would have admitted these members societies.”

As addressed above in relation to procedural fairness, UMNSW had a full opportunity to address that in the meeting on 23 April 2022.
As for ICV, it chose not to attend the SGM held on 9 April 2022. It provided a written submission dated 8 April 2022, which was read out to the SGM. That submission touched on some of the matters connected to the improper purpose issue.
There is no doubt that the consequences of the expulsion decisions are severe. But ultimately it is for incorporated associations to govern themselves. It is not for this Court to engage in merits review of expulsion decisions.
The point can be put another way. The way that the plaintiffs framed their improper purpose case was to allege that the Exco expulsion decisions were taken for a purpose of removing critics of the AFIC leadership prior to the new elections for officeholders within AFIC. That purpose is thus about distortion of democratic processes. But the SGMs themselves involved an exercise of democratic processes. I have concluded above that the SGMs should have been constituted as a special meeting of the Federal Congress. But if the SGMs were properly constituted (that being the premise of my consideration of this issue), then it was an appropriate exercise of democratic decision-making as to whether or not the plaintiffs should remain members of AFIC. Ultimately, if the membership considered that the conduct of the plaintiffs was detrimental to the interests of AFIC such as to warrant expulsion, then that is a matter for them.
Here, taking account of all the circumstances, I am not persuaded that the decisions of the SGMs can be said to have been actuated by the improper purpose alleged by the plaintiffs. Nor are those decisions so dependent on the decisions of the Exco as to be tainted by association. This ground of challenge is thus not made out.

Orders

The orders of the Court will be as follows in the UMNSW proceedings:

The Court declares that the plaintiff remains a member of, and the State Council for New South Wales within, the defendant.

The defendant is to pay the plaintiff’s costs with respect to its application for this relief.

Liberty to apply.

In the ICV proceedings, the orders of the Court will be:

The Court declares that the plaintiff remains a member of, and the State Council for Victoria within, the defendant.

The defendant is to pay the plaintiff’s costs.

Liberty to apply.

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

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Decision last updated: 30 June 2022

Medium Neutral Citation:	United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc [2022] NSWSC 868
Hearing dates:	6, 7 and 8 June 2022
Date of orders:	30 June 2022
Decision date:	30 June 2022
Jurisdiction:	Equity
Before:	Kirk J
Decision:	Proceedings 2021/0055621 (1) The Court declares that the plaintiff remains a member of, and the State Council for New South Wales within, the defendant. (2) The defendant is to pay the plaintiff’s costs with respect to its application for this relief. (3) Liberty to apply. Proceedings 2022/00142138 (1) The Court declares that the plaintiff remains a member of, and the State Council for Victoria within, the defendant. (2) The defendant is to pay the plaintiff’s costs. (3) Liberty to apply.
Catchwords:	ASSOCIATIONS AND CLUBS — Meeting of members — Whether appointment to the AFIC Executive Committee was valid — Whether AFIC Executive Committee was quorate when it met to expel the plaintiffs ASSOCIATIONS AND CLUBS — Proper construction of s 16 of the Associations Incorporation Act 1964 (Tas) — Test for inconsistency — Whether the Associations Incorporation (Model Rules) Regulations 1997 (Tas) applied in the circumstances — Whether Model Rules excluded, modified by or inconsistent with the AFIC Constitution ASSOCIATIONS AND CLUBS — Application of rules 33 and 34 of the Model Rules — Whether the AFIC Executive Committee was the relevant “committee” for the purposes of rule 33 — Whether appeals under rule 34 are to be heard by the Federal Congress of AFIC ASSOCIATIONS AND CLUBS — Procedural fairness — Whether breach of procedural fairness rendered obsolete or “cured” by appeal process — Whether appeal under rule 34 invalid for lack of sufficient notice ASSOCIATIONS AND CLUBS — Improper purpose — Where evidence of improper purpose on the part of one person in a decision-making body — “Rotten apple” theory —Whether AFIC Executive Committee expelled the plaintiffs for an improper purpose — Whether subsequent decisions made at special general meetings invalidated by the AFIC Executive Committee’s improper purpose
Legislation Cited:	Associations Incorporation Act 1964 (Tas) Associations Incorporation (Model Rules) Regulations 1997 (Tas) Evidence Act 1995 (NSW), ss 128(6), 140
Cases Cited:	Australian Federation of Islamic Councils Inc v Hafez Kassem [2017] NSWSC 206 Australian Federation of Islamic Councils Inc v United Muslims New South Wales Inc [2021] NSWCA 311 Australian Workers Union v Bowen (No. 2) (1948) 77 CLR 601; [1948] HCA 35 Calvin v Carr [1980] AC 574 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 Dixon v Esperance Bay [2002] WASC 110 Foss v Harbottle (1843) 2 Hare 461 Green v King [1957] Tax SR 66 Hanlon v Brookes (1997) 15 ACLC 1626 Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Islamic Council of NSW v Australian Federation of Islamic Councils [2000] NSWSC 115 Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360 Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc [2016] NSWSC 960 Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212; [2021] HCA 2 Popovic v Tanasijevic [2001] SASC 289 Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167 Ridge v Baldwin [1964] AC 40 Rose v Boxing NSW Inc [2007] NSWSC 20 Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39 Twist v Randwick City Council (1976) 136 CLR 106; [1976] HCA 58 United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils [2021] NSWSC 382 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 Young v Cotter [1996] NSWCA 573
Texts Cited:	Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 7th edition, 2022) GE Dal Pont, Law of Associations (LexisNexis, 2018) Herzfeld and Prince’s Interpretation (Thomson Reuters, 2nd edn, 2020)
Category:	Principal judgment
Parties:	Proceedings 2021/0055621 United Muslims of New South Wales (Plaintiff) Australian Federation of Islamic Councils (Defendant) Proceedings 2022/00142138 Islamic Council of Victoria (Plaintiff) Australian Federation of Islamic Councils (Defendant)
Representation:	Counsel: Proceedings 2021/0055621 TJ Dixon and B Rauf (Plaintiff) S Golledge SC and J Parrish (Defendant) Proceedings 2022/00142138 S Blount (Plaintiff) S Golledge SC and J Parrish (Defendant) Solicitors: Proceedings 2021/0055621 Taylor & Associates Lawyers (Plaintiff) Turner Freeman Lawyers (Defendant) Proceedings 2022/00142138 Brand Partners Commercial Lawyers (Plaintiff) Turner Freeman Lawyers (Defendant)
File Number(s):	2021/0055621; 2022/00142138