United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils

[2021] NSWSC 421

Supreme Court

New South Wales

Medium Neutral Citation:

United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils & Ors [2021] NSWSC 421

Hearing dates:

6, 7 and 8 April 2021

Decision date:

26 April 2021

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Orders made to give effect to judgment.

Catchwords:

PROCEDURE — Judgments and orders — Application for stay of orders pending proposed appeal — No identification of any, or any reasonably arguable question, for determination of appellate court.

Cases Cited:

- Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

- Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9

- Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342; (1994) 126 ALR 660

- Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

- NSW Bar Association v Stevens [2003] NSWCA 95

Category:

Consequential orders

Parties:

United Muslims New South Wales Incorporated (Plaintiff)
Australian Federation of Islamic Councils (First Defendant)
The Council of Islamic Societies in NSW Incorporated (Second Defendant)
Abraham Zoabi (Third Defendant)

Representation:

Counsel:
T J Dixon/H Pararajasingham (Plaintiff)
M Ashhurst SC/D Meyerowitz-Katz (Defendants)

Solicitors:
Madison Marcus Lawyers (Plaintiff)
Birchgrove Legal (Defendants)

File Number(s):

2021/55621

Judgment

1. On 16 April 2021, I delivered judgment ([2021] NSWSC 382) in proceedings brought by United Muslims New South Wales Incorporated (“UMNSW”) which sought a range of relief. I directed the parties to bring in agreed short minutes of order to give effect to the judgment and as to costs within 7 days or, if there was no agreement, their respective draft short minutes of order and submissions not exceeding 5 pages on one and a half spacing as to any differences between them. The parties have reached substantial agreement as to the form of those orders, which I will make below.

2. The only issue as to which the parties are in disagreement is that the Defendants, Australian Federation of Islamic Councils (“AFIC”) and others, seek a stay of the final orders “in order to preserve the status quo” pending the outcome of an appeal which they propose to commence. The parties did not address the principles applicable to the grant of a stay but I have regard to those principles. The overriding principle to apply when determining an application for a stay is to ask what the interests of justice require, and special or exceptional circumstances need not be made out to grant a stay; it is sufficient that the Defendants demonstrate a reason or appropriate case to warrant the exercise of discretion in their favour; and it is relevant whether there are reasonably arguable grounds for an appeal: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (“Alexander”) at 694-695; NSW Bar Association v Stevens [2003] NSWCA 95 at [83]. The Court must make a preliminary assessment about whether an arguable case exists, requiring that there be reasonably arguable questions for the determination of the appellate court: Alexander at 695; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]; Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 per McColl JA at [46]. It is relevant, in considering a stay application, that an appeal would be rendered nugatory if a stay were not granted: Kalifair at [18]. However, as McColl JA noted in Aquaqueen above, it is not sufficient to order a stay that otherwise the appeal would be rendered nugatory, and it is first necessary that the appellant demonstrates that the appeal raises serious issues for the determination of the appellate court: Aquaqueen at [48].

3. Mr Ashhurst and Mr Meyerowitz-Katz indicate that AFIC proposes to file an appeal from the Court’s orders, but do not identify any basis for that appeal so as to allow me to make any assessment whether an arguable case exists, so as to meet the requirements for a stay noted above. They also submit that the orders, once made, will have the effect that UMNSW is the State Council for New South Wales and Mr Elrayes is its delegate to AFIC’s Federal Council, and point to the possibility that a Federal Council meeting may be called, including by four State Councils, of which UMNSW is one, and that Mr Elrayes would then be entitled to attend and vote at that meeting. That result follows, not from orders that I have made that have any operative effect, but from the existing position as found by the Court, namely that UMNSW is the New South Wales State Council of AFIC, as a matter of fact and law, and Mr Elrayes was validly appointed as its delegate for a Federal Council meeting, and the Court’s judgment declares, rather than creates, that position. In my view, the stay that is sought does not seek to preserve the status quo, which is that position, but to reverse it.

4. Mr Dixon, with whom Mr Pararajasingham appears for UMNSW, submits that the Court has no power to stay the declarations, referring to observations of Carr J in Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 at 347. Mr Ashhurst responds by reference to his Honour’s further observation in that case that:

““if an appeal were foreshadowed and the circumstances warranted taking such a course, a Full Court might before pronouncing judgment or, perhaps, before entry of judgment stay a declaratory order by suspending or postponing its coming into effect for a period fixed by reference to some appropriate stage of the further appellate process. Alternatively, the court or a judge might, in an appropriate case, stay the exercise of rights which might be declared to exist, pending an appeal which might have the result of the declaration being set aside.”

5. It is not necessary to determine whether the Court would have power to stay the exercise of rights which might be declared to exist, pending an appeal which might have the result of the declaration being set aside, as Carr J noted. Here, AFIC identifies no basis for an appeal to allow an assessment whether an arguable case exists and no matter which would warrant a stay having regard to the established principles by reference to which a judgment a first instance would be stayed, and the stay which it seeks would change rather than preserve the present position. For these reasons, I will not make the order for a stay that is sought.

6. I note that order 3 made by the Court on 8 March 2021 now has no continued effect, since UMNSW’s claims for substantive relief have been determined in its favour, and AFIC is now free to convene a meeting of the Federal Council in a manner consistent with the result of these proceedings and the declarations that are binding upon it.

7. Accordingly, I make orders in the form that was substantially agreed between the parties, other than in respect of a stay, as follows:

1. The Court declares that the Plaintiff is the State Council for New South Wales as defined in clause 3 of the AFIC Constitution.

2. The Court declares that Hossam Elrayes, President of the Plaintiff, is the duly appointed delegate for the State Council for New South Wales as defined in clause 12(1) of the AFIC Constitution.

3. The Court declares that the decision of the First Defendant on or around 17 December 2020 to place Mr Talal Elcheikh on a putative “register of proscribed persons”, with the consequence that he was not thereafter entitled to, inter alia, act as the Plaintiff’s delegate to the First Defendant or attend its meetings, is invalid.

4. Order that liberty be reserved to all parties to apply to the Court for further orders and directions generally.

5. The First and Third Defendants are to pay the Plaintiff’s costs, as agreed or assessed.

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Decision last updated: 28 April 2021