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

[2021] NSWSC 382

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

United Muslims New South Wales Incorporated v Australian Federation of Islamic Councils & Ors [2021] NSWSC 382

Hearing dates:

6, 7 and 8 April 2021

Decision date:

16 April 2021

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Parties to bring in short minutes of order to give effect to decision in respect of identity of State Council, identity of delegate to Federal Council and invalidity of listing of person on “proscribed persons” register.

Catchwords:

ASSOCIATIONS — Construction of association’s constitution – Whether group of individuals can constitute State Council for purposes of constitution – Implication of term(s) in constitution – Whether appointment of state delegate to Federal Council valid for purposes of constitution

ASSOCIATIONS — Meeting of members — Annual general meeting — Conduct of meeting – Relevance of material provided to members, terms of constitution, and other relevant circumstances in determining what occurred at meeting

Legislation Cited:

- Associations Incorporations Act 1964 (Tas)

- Associations Incorporations Act 2009 (NSW)

- Evidence Act 1995 (Cth), s 136

Cases Cited:

- Attorney-General v Davey (1741) 2 Atk 212; 26 ER 531

- Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36

- Campbell v Higgins (1957) 3 FLR 317

- Darroch v Tanner (1987) 16 FCR 368

- Echunga Football Club Inc v Hills Football League Inc (2014) 121 SASR 449; [2014] SASC 201

- Grindley v Barker (1987) 1 Bos & Pul 229; 126 ER 875

- Islamic Council of NSW v Australian Federation of Islamic Councils [2000] NSWSC 115; BC200000667

- J Aron Corporation v Newmont Yandal [2005] NSWSC 238

- Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144

- Muslim Council of New South Wales v Australian Federation of Islamic Councils Inc [2009] NSWSC 360

- Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide Corporation (1975) 11 SASR 504

- North Sydney Brick & Tile Co Ltd v Darvall (1989) 17 NSWLR 327

- Porter v Dugmore (1984) 3 FCR 396

- Re Recher's Will Trusts [1972] Ch 526

Category:

Principal judgment

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. By Summons filed on 26 February 2021, the Plaintiff, United Muslims New South Wales Incorporated (“UMNSW”) sought a range of relief. The Defendants in the proceedings are the Australian Federation of Islamic Councils (“AFIC”), The Council of Islamic Societies in NSW Incorporated (“CIS”) and Mr Abraham Zoabi.

Chronology of events

2. I will first set out a chronology of events, which indicates the wider dispute as to which narrower issues arise in these proceedings. AFIC was incorporated in Tasmania under the Associations Incorporation Act 1964 (Tas) in 1999 and its present constitution was adopted in May 2018. Mr Ashhurst, with whom Mr Meyerowitz-Katz appears for AFIC, refers to the Model Rules for Associations incorporated under the Tasmanian Act, which apply to the extent that those rules are not inconsistent with or excluded by AFIC’s constitution. Mr Ashhurst accepts that rules 33 and 34 of the Model Rules dealing with expulsion of members and appeals against expulsion apply to AFIC where there are no express provisions in AFIC’s constitution dealing with the expulsion of members: Muslim Council of New South Wales Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 360 at [19]-[22]. There is, however, no need to consider the application of those rules in this case, where there has been no attempt to expel any member of AFIC, and it appears that no other issue in the proceedings turns on the Model Rules.

3. A dispute between AFIC and UMNSW began, or at least was significantly heightened, when persons associated with UMNSW raised concerns as to the propriety of the conduct of AFIC’s President, to which I will refer in dealing with the affidavit evidence below.

4. By letter dated 9 November 2020 (Elrayes Annexure HE-9), AFIC advised Mr Abdul, who was a Vice President of UMNSW, that:

“A recent review of member societies reveals that several UMNSW office bearers do not qualify to be on the executive committee. It may be that more members of the committee are also disqualified.”

That letter also expressed the view that Mr Elcheikh, Mr Chaar, Mr Khoder and Mr Higazy may not participate in UMNSW affairs. That claim seems to have been based, at least in part, on a contention that officers of UMNSW were not current financial members of AFIC member societies, which was pursued but not established at this hearing in respect of Mr Elrayes. AFIC requested that Mr Abdul and his “caretaker committee” (to which there is no other reference in the evidence) to “take immediate steps to hold an AGM and election in accordance with the constitution of AFIC and UMNSW”.

5. By a letter dated 10 November 2020 (Elrayes, Annexure HE-10), AFIC again wrote to member societies in New South Wales, attributing to them a concern which they may or may not have had, as follows:

“AFIC respects your concerns about the state of affairs at UMNSW.

A recent review of UMNSW membership has revealed serious breaches of the UMNSW and AFIC constitution. AFIC has addressed these concerns with respect to the affected individuals.

Executive Committee officers not members of member societies, breach of clauses.

Failure to hold an AGM by mid-July clauses 13(i) and 17.

In order to move forward, AFIC hereby informs you that the Vice President Br Abdul Neeman and the Assistant Secretary Br Fahmad Rahman will lead a caretaker committee until an AGM and elections are held.”

It appears that approach cannot have gone forward, by reason of the different approach later adopted involving Mr Zoabi and his committee.

6. UMNSW responded, by letter to member societies on 13 November 2020, rejecting the proposition that UMNSW was in a caretaker committee, which it characterised as an “unjustified and illegal attempt by the current AFIC executive committee to interfere in the affairs of the UMNSW”.

7. Also in November 2020, AFIC approached Mr Zoabi and arranged for him to form a new “committee” which appears to have been intended to displace UMNSW, although the manner in which that was to be achieved was not then particularly clear. Mr Zoabi took up that task at AFIC’s request, and did not recall in cross-examination whether he knew the details of the “serious breaches” that AFIC had alleged in respect of UMNSW.

8. The position in respect of UMNSW was discussed at an executive committee meeting of AFIC on 15 November 2020 (Trad 31.3.21, Annexure C), where the Executive Committee resolved to place Mr Hammoud on the “proscribed list”, took actions against a number of other persons, and Mr Trad then explained that:

“We wrote to the member societies to advise them to advise whom amongst the UMNSW Committee qualifies to be on the Committee under the UMNSW and AFIC constitution. Their former secretary refused AFIC’s advice and argued in writing that they regard AFIC’s letter as interference and they rejected AFIC intervention. We have to advise our member societies of this development and invite them to rectify the problem. AFIC has received a proposal from Br Abraham Zoabi, a very active elder in the NSW community and a person who was elected Secretary by the majority of member societies early last year. He proposed to work with an interim committee to facilitate elections for NSW member societies and to operate within the constitution. He has proposed that this interim committee be approved by AFIC and they will deliver an election and a functional committee within six weeks.”

9. Discussion then followed which referred to “members … taking it into their hands to elect a functional committee” and to AFIC sending “an observer to make sure that everything is going right” and all members of the executive committee agreed with that process. Mr Zoabi’s evidence in cross-examination was inconsistent with this description of events, being that he was approached by AFIC and Mr Trad to work with the interim committee, as distinct from his initiating that interim committee and the evidence suggests that AFIC, rather than individual members in New South Wales, were taking the initiative of seeking to replace UMNSW.

10. By a letter dated 17 November 2020 to member societies in New South Wales, AFIC advised that:

“In view of the constitutional breaches, member societies have demanded under clauses 5(1) and 5(7) of the AFIC constitution to appoint a caretaker interim committee (CIC) to manage the NSW affairs of member societies until such time that an election of a new executive committee is held. …

The executive committee of AFIC carefully considered the member societies’ demands and voted in favour of allowing the CIC to fulfil the aspirations of NSW members.

The CIC will be coordinated by Brother Ibrahim Zoabi.”

There was no evidence in these proceedings of any demands of member societies of the character referred to in this letter, although AFIC’s (or its executive committee’s) discontent with UMNSW is clear enough.

11. By an email dated 4 December 2020, Mr Zoabi, with Mr Trad’s assistance, wrote to member societies of AFIC advising that:

“As a member of AFIC and UMNSW [The Council], I share your concerns about what is happening in New South Wales.

There is a conflict between AFIC and individuals who are not qualified under AFIC rules to be on the Council executive committee.

As a result of these conflicts, AFIC approved an interim caretaker committee to look after the affairs of its NSW member societies and convene an election to elect a New Council to represent NSW in AFIC.

As AFIC members, we cannot and should not ever allow a council committee to admit societies in an unconstitutional manner. According to the AFIC constitution, a state council can only be accepted by AFIC if it is representing the AFIC member societies in that state. No Council can remain in AFIC if it admits non-members and gives them the same rights as AFIC members, this is not in our interests as not in AFIC’s interests. …

AFIC had no choice but to accept an interim committee made up of representatives of member societies to act on behalf of NSW AFIC members.

According to AFIC records, a number of individuals on the NSW Council are not qualified to be on the Council committee. In this regard, in the interests of Muslim unity, I implore everyone to ignore all emails, calls or correspondence in relation to Council or AFIC affairs from anyone other than myself. My Committee is the only committee officially recognised by AFIC as a true representative of the NSW Society.”

It is not apparent from the evidence that, at this time, any interim committee was made up of representatives of member societies, and that observation might best be understood as foreshadowing the result which AFIC and Mr Zoabi hoped ultimately to achieve. It is also not apparent that AFIC (or, more precisely, its executive committee) then had any constitutional power to approve such an interim caretaker committee or allocate it responsibility for the affairs of New South Wales member societies, where AFIC’s constitution allocated that role to UMNSW as its then State Council and did not recognise any concept of an “interim caretaker committee”. It is not necessary in these proceedings to address issues which have arisen in other matters involving AFIC’s attempted use of such mechanisms.

12. By email dated 10 December 2020 (Ex P2), UMNSW gave notice of the next annual general meeting (“AGM”) to be held on 17 January 2021. That AGM dealt with, inter alia, the election of persons to hold office within UMNSW, but does not appear to have any connection with whether UMNSW would or would not continue as State Council for New South Wales. I am unable to accept AFIC’s contention that attendance at that meeting provided any relevant information as to member societies’ confidence, or lack of confidence, in UMNSW.

13. On 28 December 2020, Mr Zoabi sent an invitation to a meeting to be held on 16 January 2021 to some of AFIC’s member societies in New South Wales, which members invited member societies to “our election meeting and dinner” and stated that “[M]ember societies can make nominations for the following positions on the NSW council” and the nomination form referred both to a “New South Wales Islamic Council (AFIC)” and to an “AFIC NSW Islamic Council Committee 2021”. An agenda for that meeting was attached which did not address what the objects or rules of the proposed new committee would be and did not expressly refer to replacing or displacing UMNSW as the existing State Council for New South Wales. This correspondence assumed there would be a new “NSW Council” or “AFIC NSW Islamic Council Committee 2021”, rather than identifying any question for consideration by member societies as to whether they wished to remove or displace UMNSW as the existing State Council and appoint a new State Council (if that were possible) and, having assumed the answer to that omitted question, then contemplated that member societies would nominate and vote as to who will be the members of that new council.

14. On 4 January 2020, Mr Zoabi again emailed member societies in New South Wales, attaching a further nomination form and stating that:

“First of all, I would like to thank you for your concern about the state of Muslims in NSW and your sincere intention to have an active state council to represent the hard-working AFIC members in NSW, the premier state in Australia. …

Finally, I would like to remind the member societies that AFIC will only recognise this meeting and will accept the people whom you elect through this meeting as the legitimate NSW representatives.”

This correspondence again assumes that the existing State Council will be removed rather than inviting member societies to consider that question, and contemplates that member societies will then vote as to who will be the members of that new committee and the “legitimate NSW representatives”. It also communicates the lack of utility in member societies seeking to address the question whether UMNSW was to be removed or displaced (if that was possible) by indicating that AFIC had predetermined its answer, by indicating that it would only recognise new representatives elected at that meeting and not the existing State Council.

15. By a further email dated 6 January 2021, Dr Jneid, AFIC’s President, stated that:

“I have been receiving enquiries about the state of the Muslim Council in NSW and the meetings that have been called by different groups claiming to represent AFIC members.

AFIC shares your legitimate concerns about the failures of UMNSW. I would like to remind you that in recognition of your wishes and recommendations, AFIC appointed an interim committee to hold a meeting for NSW member societies and hold elections to nominate their representatives with AFIC.

The coordinator for the AFIC recognised committee for NSW member societies is BR Abrahim Zoabi. The meeting called Br Abrahim Zoabi on behalf of the interim committee is the only meeting whose result will be accepted by AFIC. The recommendations of the interim committee will be the only recommendation with which AFIC will proceed.”

That email also did not provide any clear explanation to member societies of the body to which they were being asked to nominate representatives and did not identify a question of the replacement of UMNSW as the State Council. That email again assumed that new representatives would be appointed and focussed on who those new representatives would be.

16. By email dated 14 January 2021 (Ex P5), which seems to be a response to a letter from UMNSW’s solicitors of the same date, Mr Zoabi rejected “false allegations about AFIC” and observed that:

“… my committee at no point made any representation that it is convening a meeting on behalf of UMNSW. Our meeting is for legitimate AFIC member societies in NSW. This is a right under Australian law.”

17. By a further email dated 15 January 2021 (Ex P2), UMNSW reminded members of Its AGM and expressed the view that “AFIC has been interfering and targeting the UMNSW for the only reason that we held AFIC and its Executive Committee to account”. That email noted that AFIC had appointed a “Caretaker Interim Committee” expressed the view that was unconstitutional, and noted that the caretaker interim committee had called for an annual general meeting one day prior to the annual general meeting convened by the UMNSW executive committee. That email noted that the majority of members comprising the caretaker interim committee were not members of UMNSW or of any UMNSW member society. That also email attached a letter dated 14 January 2021 from UMNSW’s solicitors foreshadowing the commencement of proceedings, which later occurred.

18. A meeting was then held on 16 January 2021 called by Mr Zoabi, as recorded in minutes titled “Meeting of AFIC NSW member societies”, on the day before UMNSW was scheduled to hold its annual general meeting (“AGM”). That meeting was opened by AFIC’s President who observed that:

“… the constitutional processes were followed in ensuring that only valid member societies participate in this meeting of members to decide who will represent them in NSW.”

19. AFIC’s Chief Executive Officer, Mr Trad, then advised relevant member societies that:

“This is a meeting of AFIC members in NSW. It is not a UMNSW meeting because UMNSW has not fulfilled its role as a member by failing to adhere to the AFIC constitution, this is a basic requirement of membership. It is the member societies who tell us who is to represent them in AFIC, not UMNSW, or any other group. You, the delegates who are gathered here are empowered by the AFIC constitution to keep AFIC accountable and to keep your council accountable and to select the representatives in whom you believe.”

20. The minutes record that “[t]he delegates agreed to elect a committee to represent them as the Muslims of NSW”, although they do not describe how that agreement was reached or indicate any further detail of the role that committee would play. An election for several positions on the new committee then took place, and Mr Zoabi then turned to the question of incorporating that committee as an incorporated association that later became CIS. Mr Zoabi concluded the meeting by observing that:

“As 19 of the member societies in NSW are here, I would like everyone to consider a name for our committee and invite you to agree to registering an association. I would like to suggest the name, subject to availability:

The Council of Islamic Societies in NSW.”

The minutes record that no-one disagreed and CIS was then registered as an incorporated association on 1 February 2021 (Elrayes 25.2.21, Annexure HE-30).

21. UMNSW then held its AGM on 17 January 2021, and a quorum of its member societies attended, although UMNSW did not give notice of the meeting to AFIC member societies in NSW which were not members of UMNSW.

22. By email dated 22 January 2021, Mr Elrayes advised AFIC that UMNSW had held its annual general meeting and election on 17 January 2021 and that Mr Elrayes had been elected as UMNSW’s new President and was therefore the New South Wales delegate on the Federal Council of AFIC. By email dated 25 January 2021, AFIC’s Chief Executive Officer, Mr Trad, requested further information as to the persons voting at that meeting. By email dated 2 February 2021, UMNSW declined to provide such information, referring to the absence of requests of information of that kind in the past.

21. As I noted above, CIS was incorporated on 1 February 2021, about two weeks after the meeting on 16 January 2021. By letter dated 11 February 2021 addressed to chairmen of member councils, AFIC advised that:

“You might be aware that AFIC member societies in New South Wales held a meeting on Saturday 16^th January 2021 and elected to form [CIS] as their representative Council in AFIC pursuant to Clause 3 and Clause 5.1 of the AFIC constitution.

AFIC understands that UMNSW held another meeting on 17^th January 2021. UMNSW have failed to adequately respond to AFIC’s reasonable requests for information to verify whether their meeting was a meeting of AFIC member societies or whether there was any reason to doubt the veracity of that meeting that took place on 16 January 2021.

AFIC has considered the material before it and accepted the appointment of [CIS] as the State Council as defined under Clause 3 of the AFIC constitution. AFIC has been advised that Br Abraham Zoabi is the representative for the NSW State Council pursuant to clause 12(1) of the Constitution”

Two matters may be noted about that letter. The first is that it treats CIS rather than a group of individuals as the body that was purportedly elected on 16 January 2021. Second, it treats AFIC as having the power to determine whether or not to accept the appointment of CIS as State Council, a power which is not conferred on AFIC under its constitution.

Affidavit evidence

24. Both parties relied on affidavit evidence, significant parts of which were not in admissible form, and parts of which were admitted with limiting orders under s 136 of the Evidence Act 1995 (Cth) as evidence of the witness’ understanding or as submissions. I have had regard to the cross-examination of all of the witnesses who were cross-examined, although these proceedings can largely be decided on matters of law which do not turn on the evidence in cross-examination.

25. UMNSW relies on the affidavit dated 24 February 2021 of Mr Elcheikh, who is its Vice President. He refers to the allegations raised about the conduct of Dr Jneid, the President of AFIC, from about June 2020, and to his attempt to address those allegations at a Federal Council meeting of AFIC on 28 June 2020, and to counter-allegations then made by Dr Jneid and other members of AFIC’s executive committee in respect of Mr Elcheikh. He refers to subsequent steps by which AFIC’s executive committee asserted that he was no longer a member of AFIC and declined to provide information concerning the recipients of funds allocated by AFIC on that basis, and to further correspondence from AFIC to UMNSW which claimed that several office bearers within UMNSW were “disqualified” in the light of the AFIC executive committee’s investigation as to the status of their membership and to correspondence in which his solicitors had contested AFIC’s authority to remove him from UMNSW’s executive committee or its Federal Council. He also refers to the circumstances in which he was advised that his name had been added to a “register of proscribed persons” by AFIC and that he would be barred from representing any AFIC State Council or member society; AFIC now does not seek to defend that action. These matters are relevant by way of background to the dispute which subsequently arose in respect of the status of UMNSW and Mr Elcheikh and to provide the basis for the declaration that Mr Elcheikh seeks, and AFIC no longer contests, as to the invalidity of his listing as a “proscribed person”.

26. By a further affidavit dated 26 March 2021, Mr Elcheikh refers to the status of certain member associations of UMNSW and other associations which he contends are not member societies of UMNSW. He also refers to the circumstances in which UMNSW was formed in 2016 and became the State Council for NSW. It is not necessary to determine any question of the validity of the steps then taken, not least where the parties appear to have proceeded for several years on the basis that UMNSW has occupied that role, although I address below a submission made by the Defendants as to the matter in closing submissions. Mr Elcheikh also addresses the question who attended the meeting convened by Mr Zoabi on 16 January 2021 and his evidence is that several of the member societies which attended are also member societies of UMNSW and five others are not member societies of UMNSW. Mr Elcheikh’s evidence is also that the persons who attended Mr Zoabi’s meeting purportedly on behalf of the Canterbury Islamic Society were not authorised to do so by that body and that now appears to be common ground. Mr Elcheikh also identifies the member societies of UMNSW who attended its AGM on 17 January 2021, although nothing turns on that question for the reasons noted below.

27. UMNSW also relies on the affidavit dated 25 February 2021 of Mr Elrayes, who is its President and who was not required for cross-examination. He refers to AFIC’s composition and to its constituent bodies. He also addresses UMNSW’s attempts to raise allegations of impropriety against Dr Jneid, relating to the provision of financial aid by AFIC to bodies in which Dr Jneid allegedly had undisclosed relationships and other matters, and to the steps which had been taken to seek to address this issue in AFIC’s executive committee. Mr Elrayes also refers to subsequent steps taken by AFIC, which he characterises as attempts to interfere in the affairs of UMNSW, and refers to the AGM of UMNSW held on 17 January 2021. He contends the AGM was not held before that date due to restrictions imposed by the COVID-19 pandemic and that NSW Fair Trading had permitted extensions for the holding of AGMs by Associations during 2020. It is not necessary to determine the correctness of that contention in order to determine these proceedings. Mr Elrayes also addresses AFIC’s proposal that a “caretaker interim committee” be appointed to UMNSW and to the steps taken by AFIC to add Mr Elcheikh to its register of proscribed persons, to which I have referred above. He addresses the meeting convened by Mr Zoabi on 16 January 2021, the AGM held by UMNSW on 17 January 2021 and the steps taken to remove UMNSW as State Council for New South Wales.

28. UMNSW relies on the affidavit dated 25 March 2021 of Mr Chaar, who is the President of the Padstow Islamic Society. Mr Chaar’s evidence is that that Society represents about 140 members and has (in evidence admitted with a limiting order under s 136 of the Evidence Act as submission only) been a member society of AFIC since around 2018. AFIC in turn contends that the Padstow Islamic Society has been a non-financial member of AFIC since about 2019. Mr Chaar’s evidence was that no notification of the meeting convened by Mr Zoabi on 16 January 2021 was given to him or any other representative of the Padstow Islamic Society, and no authorised representative of the Padstow Islamic Society attended that meeting. His evidence was also that he was authorised to attend, and did attend, UMNSW’s AGM on 17 January 2021.

29. UMNSW also relies on the affidavit dated 25 March 2021 of Mr Murru, the President of the Canterbury Islamic Society, who refers to correspondence from Mr Zoabi in relation to the meeting to be convened for 16 January 2021. He also refers to an email from Mr Zoabi, which I have noted above, which advised that AFIC would only recognise the meeting convened by Mr Zoabi and would only accept the people elected at that meeting as the “legitimate NSW representatives”. Mr Murru notes that he did not attend, nor did any authorised representative of the Canterbury Islamic Society attend, Mr Zoabi’s meeting on 16 January 2021 and he attended UMNSW’s AGM on 17 January 2021. He contests Mr Zoabi’s evidence as to the persons who purportedly attended Mr Zoabi’s meeting on behalf of the Canterbury Islamic Society; it appears that the Defendants now concede that evidence was in error and the persons who attended that meeting on behalf of that society did not have authority to do so.

30. UMNSW also relies on the affidavit dated 26 March 2021 of Mr Hammoud, who is a member of North Shore Crescent Society Incorporated (“NSCS”) and refers to the allegations made against Dr Jneid, to the subsequent removal of Mr Hammoud as a member of the executive committee of AFIC, and to advice from Mr Zoabi that he was organising an “important meeting” but that Mr Hammoud was not permitted to participate in AFIC’s affairs, because he had been placed on the register of proscribed persons. Mr Hammoud did not respond to that email and gives evidence, admitted as evidence of his understanding only, that NSCS treats UMNSW as the legitimate State Council for New South Wales. UMNSW also relies on an affidavit dated 5 April 2021 of Mr Charchouh which confirmed that Mr Elcheikh is an active member of the Western Sydney Islamic Society (“WSIS”), in answer to an allegation raised by AFIC that he did not hold such a membership and was not eligible for positions associated with AFIC.

31. The Defendants in turn rely on the affidavit dated 18 March 2021 of Mr Trad, who is AFIC’s Chief Executive Officer. Mr Trad described the background and structure of AFIC and referred to his involvement with AFIC, positions which he has held on AFIC’s executive council, his engagement as AFIC’s Chief Executive Officer since October 2020 and the scope of his duties in that capacity. Mr Trad also referred to previous organisations which had been the State Council for New South Wales prior to UMNSW becoming the State Council in about 2016. As I noted above, it is not necessary to determine whether the process by which earlier organisations ceased to occupy that position was valid, although I return to a submission as to that matter made by the Defendants in closing submissions below. Mr Trad’s evidence is that, at the meeting on 16 January 2021, several persons were elected to the “State Council”. That evidence is a bare conclusion and I give it little weight. I have referred to the conduct of that meeting above and will return to the question of what was decided at it below. Mr Trad also gave evidence as to UMNSW’s AGM held on 17 January 2021.

32. The Defendants also relied on the affidavit dated 18 March 2021 of Mr Zoabi, who is now the President of CIS, and refers to steps which he took commencing in December 2020 toward the meeting held on 17 January 2021. He referred to the societies which attended that meeting and to his contact with persons attending that meeting in respect of the representatives who would attend, although his evidence was in error in treating the persons who represented the Canterbury Islamic Society at that meeting as having the authority to do so.

33. The Defendants also rely on the affidavit dated 17 March 2021 of Mr Samen, who is the President of Jordanian Hub and gives evidence that he and authorised delegates from that body did not receive notice of or attend UMNSW’s AGM on 17 January 2021. By his affidavit dated 17 March 2021, Mr El Kordi, who is the President of Sydney Islamic Community Welfare, also gives evidence that he and authorised delegates from that body had not received notice of and did not attend UMNSW’s AGM on 17 January 2021. By his affidavit dated 17 March 2021, Mr Taleb, who is the President of Islamic Peace Association, gives evidence that neither he nor any authorised delegate of that body received notice or attended UMNSW’s AGM on 17 January 2021. The Defendants relied on a further affidavit of Mr Zoabi dated 31 March 2021, which responded to Mr Murru’s affidavit and accepted that Mr Zoabi was in error as to the person representing the Canterbury Islamic Society at the meeting.

34. By a second affidavit dated 31 March 2021, Mr Trad responded to several affidavits on which UMNSW relied in the proceedings and contended, in evidence admitted with a limiting order under s 136 of the Evidence Act as submission only, that AFIC had terminated the membership of several member associations, which had not been invited to the meeting on 16 January 2021, namely Padstow Islamic Society, Benevolent Islamic Society and Islamic Forum of Australian Muslims. By a third affidavit dated 1 April 2021, Mr Trad referred to an email sent to New South Wales members on 17 November 2020, which attached a letter of the same date to member societies signed by AFIC’s Secretary, to which I referred in setting out the chronology of events above. By a fourth affidavit dated 7 April 2020, Mr Trad annexed a report that he had prepared and two reports that AFIC’s Legal Support Officer had prepared regarding Dr Jneid. Obviously enough, these reports do not purport to be, and are plainly not, independent inquiries into the allegations made against Dr Jneid. It is otherwise not necessary or appropriate to reach any findings as to those allegations or the adequacy of any investigation of them, which are not matters in issue in these proceedings.

35. The Defendants also rely on the affidavit dated 1 April 2021 of Ms Hansen who gives evidence directed to her willingness to be appointed to convene a further meeting sought by AFIC and Mr Zoabi in the Amended Interlocutory Process. The need to make such an appointment does not arise, for the reasons noted below, and it therefore not necessary to determine whether Ms Hansen’s firm would have had sufficient resources or scale for appointment to that role.

Some initial issues addressed by the parties’ submissions

36. In opening submissions, Mr Dixon with whom Mr Pararajasingham appears for UMNSW, addressed AFIC’s structure and the matters which gave rise to the present dispute and contended that AFIC’s executive committee had engaged in an orchestrated pursuit to remove UMNSW as the State Council of New South Wales from 9 November 2020. Ultimately, little turns on that matter, since the question in this case is whether the steps taken at the meeting on 16 January 2021 convened by Mr Zoabi, or the committee with which he was associated, had that effect in law. Mr Dixon also referred to previous authority as to the limits to the scope of the emergency power which may be exercised by AFIC’s executive council including Islamic Council of NSW v The Australian Federation of Islamic Councils [2000] NSWSC 115. Little turns on that matter since AFIC does not rely on that emergency power in this case.

37. In opening submissions, Mr Ashhurst in turn submits that a new State Council was formed at a meeting of AFIC’s New South Wales-based member societies on 16 January 2021, being the nine individuals named in the Amended Interlocutory Process and defined as the “New Council”. Mr Ashhurst also relies on the proposition at general law that a majority of an incorporated body may do a corporate act where the constitution contains no specification of how that act is to be done: Attorney-General v Davy (1741) 2 Atk 212; 26 ER 531; Grindley v Barker (1987) 1 Bos & Pul 229; 126 ER 875 at 879. It may be accepted that, if AFIC’s constitution permitted the removal and replacement of a State Council, once that State Council was appointed, a majority of members could perform that act. However, the cases on which Mr Ashhurst relies do not establish the existence of a power to take that step, which could only be derived from AFIC’s constitution. In particular, those cases do not establish the proposition which Mr Ashhurst seeks to derive from them that:

“The State Council is to be elected by a majority of the New South Wales-based member Societies present and voting at a duly convened meeting of which all such societies entitled to vote have received notice.”

38. Mr Ashhurst also submits that, where AFIC’s constitution prescribes no method of calling a meeting of state-based member societies in order to form a State Council, the meetings are to be called in such a way as will bring notice of them to every member entitled to be present and vote: Campbell v Higgins (1957) 3 FLR 317 at 327. I also accept that that proposition may well be applicable, to the first occasion on which a State Council is formed, but it does not follow that there is any power to form a new State Council when one is already in place.

39. In opening submissions, Mr Ashhurst also submits that the appointment of an interim caretaker committee to call the 16 January 2021 meeting was within the scope of the executive committee’s powers under cl 18(a) of AFIC’s constitution to manage and administer AFIC’s business and affairs. It is not necessary to determine that question, where this matter can be determined by reference to what was decided at the meeting and its validity. Mr Ashhurst also addresses the question of the position in respect of two member societies who arguably were not given notice of that meeting, NSCS and WSIS. It is also not necessary to address that question given the findings that I reach below. It is also not necessary to address Mr Ashhurst’s submission that it should be inferred that neither NSCS or WSIS proposed to participate in the meeting or would have done so had they received notice of it.

Who is now the State Council for New South Wales?

40. The substantive relief sought by UMNSW is, first, a declaration that the purported displacement of it as State Council for New South Wales (as defined in cl 3 of AFIC’s constitution) on or around 11 February 2021 is invalid and the purported appointment of CIS as the State Council for New South Wales is also invalid. That relief is framed in terms that refer to the displacement of UMNSW and the appointment of CIS by AFIC, although it appears that AFIC largely procured others to undertake that action; and it also appears that any removal or displacement of UMNSW would have arisen from the meeting of the several AFIC member societies on 16 January 2021 rather than at a later date. Nothing turns on these matters for the substance of the issues in dispute. The Defendants do not now contend that CIS (as distinct from the individuals comprising the New Council) was appointed as the State Council for New South Wales, although AFIC had previously advised its members to that effect. The Defendants referred to the possibility that the Court could reach that finding in further supplementary submissions, but I would not do so where they did not contend for it, UMNSW has responded to the different case which they put and I am not persuaded it is established on the facts in any case.

41. UMNSW also seeks a declaration that it is the State Council for New South Wales (as defined in cl 3 of AFIC’s constitution) and that will follow if it was not removed or displaced as State Council. That declaration is in contest so far as AFIC and Mr Zoabi contend that the several individuals comprising the “New Council” (as defined) are now the State Council for New South Wales by reason of the matters decided at the meeting on 16 January 2021. By Amended Interlocutory Process filed on 1 April 2021, AFIC and Mr Zoabi, who was appointed to represent the interests of the individuals comprising New Council seek the converse declaration that those individuals now comprise the State Council for New South Wales, pursuant to AFIC’s constitution.

The terms of AFIC’s constitution

42. The question of who is now the State Council for New South Wales partly turns on what occurred at the meeting convened by Mr Zoabi and his committee on 16 January 2021 and also on the construction of AFIC’s constitution, to which I now turn. In opening, Mr Ashhurst submits, and I accept, that the ordinary rules of contractual construction apply in respect of the constitution of an incorporated association, although caution will be exercised in drawing inferences from surrounding circumstances or having regard to extraneous materials, where a constitution is a statutory contract that is a public document and may be relied on by third parties: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144 at [55]-[56], [124], [239]-[243]; Echunga Football Club Inc v Hills Football League Inc (2014) 121 SASR 449; [2014] SASC 201 at [18]-[21].

42. The Preamble to AFIC’s constitution records that the Muslims of Australia:

“… having formed local Islamic Societies and in 1964 and the Australian Federation of Islamic Societies have further agreed to establish State Councils of Islamic Societies in the States and Territories of Australia and now join together to form [AFIC] thereby replacing the Australian Federation of Islamic Societies.”

As Mr Dixon points out, those State Councils existed first and AFIC’s constitution should be understood and construed in that light.

44. Clause 3 of AFIC’s constitution, dealing with “Interpretation”, in turn defines the term “State Council” to mean:

“Council of AFIC Societies formed in each State or Territory of Australia as provided by this constitution.”

The term “AFIC Societies” is not defined, but presumably refers to “AFIC’s member societies” to which reference is made in the definition of “Society”, which is defined as:

“Any Muslim Association that is established in accordance with the Constitution and is carried on with the objects substantially similar to those of [AFIC]. All references to Society or Societies refer to AFIC’s member societies.”

45. Clause 5 then deals with the structure and membership of AFIC. Clause 5(1) provides that:

“(1)   The organisation of [AFIC] shall consist of State Councils, themselves formed by the local AFIC member societies of each State or Territory of Australia. Where there is only one Society in a State or Territory, that Society shall act as State Council of AFIC for that State or Territory until such time as other society or societies are formed and have become AFIC members in accordance with this constitution.”

46. Clause 5(2) provides that:

(2) It shall be incumbent on each State Council to remain a constituent body of [AFIC] and on each local Islamic Society to be constituent part [sic] of the State Council. It shall also be incumbent on each Society and State Council to ensure that in principle its constitution is in conformity with this Constitution, and is registered with relevant State or Territory Government authorities.”

The term “Islamic Society” is not defined and the words “shall be incumbent” have a character of obligation about them, although AFIC’s constitution does not set a standard to measure conformity “in principle” with that constitution or provide any sanction for non-compliance with that obligation, which would presumably be enforceable (if sufficiently certain) by an action on the contract formed between AFIC and its members societies under its constitution.

47. Clause 5(3)(a) provides that each “Islamic Society” should have a membership of not less than 100 financial members except for Societies in remote areas where no other Society exists. It is not clear whether that provision is mandatory in character and again no sanction is provided for any non-compliance with it. The State Councils have responsibility for “administering the Islamic Affairs of the State or Territory coordinating Islamic activities and establishing communication between the member societies, other State Councils and the AFIC” under cl 5(5). Clause 5(6) provides that each State Council and Society will have full control of its properties and full responsibility to administer them.

48. Clause 5(7) provides for acceptance of new member Societies and expulsion of existing member Societies, but not for the acceptance of new State Councils or the removal of existing State Councils, and notes that such acceptance or expulsion of member societies:

“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.”

There may be no difficulty in giving effect to a constitutional provision that only member societies of the AFIC which have paid their membership subscription to the AFIC are eligible to participate in AFIC’s affairs, although it is not clear whether it is an obligation and, if so, to whom it attaches, or a qualifying requirement. There would be greater difficulty with any suggestion that AFIC’s constitution can override the internal arrangements of an incorporated association that is a State Council of AFIC for participation in that associations affairs, where that will be governed by that association’s constitution and any relevant state Associations Incorporations Act. Presumably, any obligation arising under this clause would also be enforceable (if sufficiently certain) by an action on the contract formed between AFIC and its members societies under its constitution, and the Court would then determine whether it could or should order a State Council to exclude participation by a member society if that would breach that association’s constitution or the Associations Incorporation Act.

49. Clause 5(8) in turn provides that a Society which has been admitted as a member of AFIC under clause 5(3)(c) shall be admitted as a member of the respective “State Islamic Council”, which is presumably a reference to what is otherwise described as a “State Council”. It is again not apparent how AFIC’s constitution can override the constitution of an association that is the relevant State Council as to the manner in which that admission shall occur, although that obligation would also be enforceable (if sufficiently certain) by an action brought on the contract formed by AFIC’s constitution.

50. The State Councils also have responsibility for establishing and maintaining mosques and Islamic libraries under cl 7(1)(e). Clause 10 provides that AFIC’s business and affairs “shall be manned and administered by the Executive Committee in accordance with this Constitution and the resolutions of the Federal Congress and Federal Council”, but has nothing to say as to the affairs of State Councils. Clause 12 provides for a State Council’s entitlement to be represented at meetings of the Federal Council or Federal Congress by one delegate, and specifies the persons who may be that delegate in order of priority. Clause 17 provides for an executive committee of AFIC comprised of specified persons and cl 18(e) allows “emergency powers” to AFIC’s Executive Committee to directly intervene in the affairs of a State Council “only if the situation warrants immediate action by AFIC”. AFIC no longer relies on that provision in order to support any actions which it has taken in this matter. The State Councils also maintain registers of members under cl 22, provide members with notice of meetings of the Federal Congress and circulate minutes of meetings under cll 37 and 48 and collect and pay annual membership subscription of member societies under cl 50.

What was decided at the meeting of 16 January 2021?

51. I now turn to the meeting convened by Mr Zoabi or his committee on 16 January 2021, and I have outlined events at that meeting in setting out the background facts above. As I noted above, AFIC’s President and then Mr Trad made several initial observations and the minutes of that meeting then record that delegates “agreed” to elect a committee to represent them as the Muslims of NSW and proceeded to elect the members of that committee. It is not apparent whether that “agreement” arose from AFIC’s President’s, Mr Trad’s or Mr Zoabi’s or a delegate’s proposing that course and one, some, many or all others attendees affirmatively agreeing to it, or remaining silent in response to it, and that statement ultimately amounts to the minute-taker’s interpretation that an “agreement” was formed from undisclosed statements or conduct.

52. Several persons were then elected as proposed officers of the committee or proposed committee, or the body that later incorporated as CIS, and I recognise that that allows an inference that a consensus had at least been reached that such a committee should exist. There was no reference in the minutes of that meeting, or in any evidence given in admissible form, to any “agreement” being reached or any vote being taken as to the removal of UMNSW as State Council or to the appointment of either the group of individuals or CIS as the State Council of New South Wales for the purposes of AFIC’s constitution to the exclusion of UMNSW. As I noted above, at the conclusion of the meeting, Mr Zoabi proposed that the committee register an association to be named as CIS and “[t]here was no disagreement recorded”. In further supplementary submissions, the Defendants relied on the informality of that step to support the proposition that it was the committee rather than CIS that became that State Council, although that approach has the substantial difficulty that there is no evidentiary basis for a finding that the earlier “agreement” as to formation of the committee was reached in any different manner to any agreement to register the committee or proposed committee as CIS.

53. Turning now to the parties’ submissions, Mr Dixon rightly noted that the Defendants now contend that the several individuals comprising the “New Council” (as defined) rather than CIS constitute a new State Council in place of UMNSW. Mr Dixon observed in opening submissions that the agenda for the meeting on 16 January 2021 did not identify any proposed vote for the relevant individuals to become a new State Council in New South Wales or to replace UMNSW as the State Council, and there was no vote at that meeting to treat those individuals or the proposed new body as a replacement State Council or adopt a set of rules or common objects or constitution for it. He submitted that:

“Then if one goes to the minutes of what actually occurred, found at 399, your Honour will see at about point 3 of the page, para 3, the words from the president of AFIC - so the president of AFIC was present at the meeting - and then towards the bottom of the page under 5, there's an address by a Mr Trad, who is the CEO of AFIC, and Mr Trad there indicated that that UMNSW had not fulfilled its role as members by failing to adhere to the AFIC constitution, and that was a basic requirement of what he terms “membership”. Then over the page, Mr Trad again - he's said to be an observer, but he’s obviously far more involved than that - he then introduces the notion of returning officers who will conduct the election and is appointed as one.

You will then see that various people are then elected to positions, and on p 405, under the heading General Business, there's an indication that the new committee would be called the Council of Islamic Societies in New South Wales, which is the second defendant, but your Honour again will see that those propositions I stated in terms of the agenda were not dealt with, so there was no vote to treat this new body as the replacement council or to adopt a set of rules or common objects or constitution or the like.”

54. Mr Ashhurst responded, and I accept, that, in determining what occurred at the 16 January 2021 meeting, the question for the Court is what a reasonable member attending and voting would have understood themselves to have been voting for. He submits and I also accept that the minutes of the meeting are some evidence of this, but it would be misleading to view them in isolation and that, in construing the minutes, the Court should also consider the material provided to the members leading up to the meeting, the terms of AFIC’s constitution, and any other relevant circumstances: Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504 at 520; North Sydney Brick & Tile Co Ltd v Darvall (1989) 17 NSWLR 327 at 338-340; J Aron Corporation v Newmont Yandal [2005] NSWSC 238 at [122]-[125]. Mr Ashhurst also refers to the correspondence prior to the meeting to which I have referred in setting out the background facts above, and submits that member societies were informed in several items of correspondence that an interim committee headed by Mr Zoabi had been appointed to convene a meeting of the New South Wales member societies to conduct an election for the “positions on the NSW council”, and the body that was to be elected was described variously as “a new executive committee”, “a new Council to represent AFIC in NSW”, “the NSW Council”, the “New South Wales Islamic Council (AFIC)”, the “AFIC NSW Islamic Council Committee”, an “active state council to represent the hard-working AFIC members in NSW”, and the “representatives with AFIC” of the NSW member Societies. I have noted above that that correspondence assumed that that new body would be appointed, rather than directing member societies’ attention to whether they wished to take that course, and instead directed attention to the consequential question of who would be the members of that new body. Mr Ashhurst’s summary of the correspondence is consistent with that observation.

55. Mr Ashhurst also observes, as I have noted above, that AFIC’s President stated at the meeting that it was for the members to “decide who will represent them in NSW”, that Mr Trad then said that the meeting was “of AFIC members … not a UMNSW meeting” and that they were to “tell us who it is to represent them in AFIC”, and that, as I also noted above, the minutes record that members then “agreed to elect a committee to represent the Muslims of NSW” and agreed to register an association with the name “The Council of Islamic Societies in NSW”, which became CIS. I accept Mr Ashhurst’s submission that a meeting may reach a decision without an express resolution and I proceed on the basis that the content of any decision made at the meeting on 16 January 2021 is to be inferred from previous correspondence and the whole of the meeting. However, I have pointed above to the limited evidence of how the “agreement” noted in the minutes was formed and the lack of detail as to the role of that committee, although the meeting went on to appoint its members.

56. I was troubled throughout the hearing, as would have been apparent from my dialogue with Counsel at the end of the second day of the hearing and in Mr Ashhurst’s oral closing submissions on the next afternoon, whether the evidence as to what occurred at the meeting on 16 January 2021 was sufficient to establish that an operative decision was made to appoint a new State Council in place of UMNSW, given the absence of an express resolution to that effect, the lack of clarity as to how the suggested “agreement” as to the committee role was formed, the lack of focus at that meeting on the role of the new body or what rules it would have or what was to occur in respect of UMNSW, and the fact the discussion commenced by reference to forming a committee and concluded by approving a newly incorporated association which became CIS (albeit that last decision was also made informally, but for all one knows in the same manner as the suggested “agreement” to appoint a committee). The Defendants did not seek leave to reopen their case to lead better or more precise evidence of what was said by delegates at that meeting to give rise to the “agreement” noted in the minutes or of any determination as to the role of that committee.

57. I cannot find, on the limited evidence and on the balance of probabilities, that member societies decided (or agreed or resolved) at that meeting that the several individuals constituting the New Council were to constitute a new State Council rather than that, for example, CIS was to constitute a new State Council. The better view may be that the member societies left the nature of the new body unresolved, where they began by discussing a committee and ended by discussing an incorporated association; a less likely possibility is that they decided that CIS rather than an incorporated body would be a new State Council, if an operative decision was made, because that was the position with which the meeting concluded, albeit only by a statement made by Mr Zoabi with which others did not disagree. The latter view is supported by the fact that AFIC then understood the latter decision had been made, and advised members that the elections were to positions within CIS which was the new State Council, before it later sought to recharacterise what had occurred as the election of those persons to positions within a group of individuals comprising the New Council. The least likely position, drawing inferences from the previous correspondence and the whole of the minutes of the meeting, is that member societies decided to appoint an unincorporated body as the new State Council, where Mr Zoabi had adopted a different position by the end of the meeting, no-one disagreed with him, and AFIC did not then believe that result had been reached, although both its President and Chief Executive Officer were present at the meeting. On that basis, I cannot make the declaration that the Defendants seek that the individuals constituting New Council (as defined) are now the State Council for New South Wales, quite apart from the other issues that I address below.

Can a group of individuals constitute a State Council?

58. Mr Dixon also identified a second issue as to whether a group of several individuals are capable of being a State Council for the purposes of AFIC’s constitution. Mr Dixon submits that the New Council, as a group of individuals, has no constitution and no common objects, and was not a State Council in accordance with AFIC’s constitution.

59. It seems to me that the strongest indicator that a group of individuals can constitute the State Council is cl 5(1) of AFIC’s constitution. First, that clause simply does not say the State Council must take a particular form. Second, that clause contemplates that, where there is one member society in a state, it will be the State Council. There is no reason to assume that a single member society in a state would not be an unincorporated association, which would then function as State Council, or that a requirement that the State Council take some other form would then arise when other member societies were established in that state. Mr Dixon points to several other references to the constitution of the relevant State Council in AFIC’s constitution, which, as I noted above, must “in principle” be “in conformity” with AFIC’s constitution (cl 5(2)) and which must be “registered” with relevant State government authorities. It has not been established that a group of individuals could not have a “constitution”, although the parties’ submissions as to how it could be registered with a state government authority were incomplete and somewhat equivocal. It seems to me that, in any event, a contravention of cl 5(2) would not establish the invalidity of the appointment of a body as a State Council; that clause would be enforceable in the usual way as a provision of the contract formed by the articles, and the Court would take any inability to comply with it into account in determining whether to make such an order.

60. Mr Ashhurst also submits that:

“The fact that the New Council was elected before it had a constitution is also of no moment. It is true that the AFIC constitution requires the State Council to have a constitution which meets certain requirements. However, that clause does not say and does not mean the State Council has to have that constitution before it is formed. Again, that is contrary to the actual language of cl 5(1). There is nothing in the language of the Constitution that prevents the members forming a council without a constitution, provided that [the] council subsequently adopts a constitution which meets the relevant requirements.”

61. I need not determine the correctness of that submission given the findings I reach on other grounds. I recognise that there is no evidence that the New Council, comprised of a group of individuals, has now adopted a constitution or that that constitution is registered or is capable of registration with any relevant State government authority. However, consistent with the analysis which I have set out above as to the effect of cl 5 of AFIC’s constitution, it does not seem to me that that would have invalidated its appointment, had (contrary to the views I have reached) AFIC’s constitution permitted the replacement of a State Council in this way and had the 16 January meeting reached an effective decision as to who would be appointed.

61. Mr Dixon points out that cl 5(6) of AFIC’s constitution also requires a State Council to “have full control of its properties and full responsibility to administer them”. Mr Dixon submits that a group of individuals could not meet that requirement. Mr Ashhurst responds and I accept that an unincorporated entity can own, control and administer properties, by way of a trust structure or by the property being jointly owned by all of the members: Re Recher’s Will Trusts [1972] Ch 526 at 538-541. While it may be inconvenient for a group of several individuals to hold property in this way, that does not lead to the conclusion that the State Council cannot be a group of individuals, although it may practically be preferable that it did not take that form. For completeness, I also do not read the term “its” (as distinct from “his”, “her” or “their”) as indicating that the State Council was intended not to be a natural person or persons and to be a single body rather than a group, where that could readily refer to an unincorporated association.

62. I also recognise a possible difficulty which would then arise that, on the Defendants’ construction, a further meeting of member societies would be required to appoint a new State Council (assuming that was possible) each time a member of the New Council comprising that group of individuals wished to resign from that position or fell ill or died so as to be unable to continue to serve in that position. The Defendants respond that may be addressed by the rules or constitution of such a group, and that may be possible. In any event, that also seems to me to be a matter of inconvenience, rather than leading to the conclusion that the State Council cannot be a group of individuals

63. I am therefore not persuaded by UMNSW’s submission that AFIC’s constitution does not permit the appointment of a group of individuals as State Council and the New Council could not be appointed in that form.

Does AFIC’s constitution permit the removal or displacement of an existing State Council by member societies electing a new State Council?

65. Mr Dixon identified a further argument, which arose only if the several individuals comprising the New Council could constitute a State Council, that there was no basis for member societies to meet and replace UMNSW as State Council, or for AFIC to then choose a new body as State Council, while UMNSW remains a functioning part of AFIC. AFIC’s constitution has no express provision permitting that course. Mr Ashhurst originally put that the power to remove or “displace” (in the term that he preferred) a State Council was “implied”, but he submitted in closing submissions that that arose by way of construction of AFIC’s constitution rather than as a term implied in fact. In dealing with either a question of construction or implication, it seems to me that the Court would adopt the approach noted in Porter v Dugmore (1984) 3 FCR 396 at 408; [1984] FCA 75, approved in Darroch v Tanner (1987) 16 FCR 368 in dealing with the implication of terms into the rules of a registered organisation, that the rules of such a body “cannot ‘be supplemented by implied terms’, as distinct from permitting the ascertainment of ‘the meaning of the rules upon their true construction’”

66. Mr Dixon points, in opening submissions, to cl 5(2) of AFIC’s constitution which provides that it is “incumbent on each State Council to remain a constituent body” of AFIC. Although the obligation imposed by that clause appears to be directed to the relevant State Council rather than AFIC, it contemplates that the State Council should remain in place, rather than that it should be a transient body that is capable of removal from time to time, and it is difficult to see a basis on which a term would be implied on construction to permit AFIC and member societies to prevent the State Council complying with that obligation. That provision tends strongly against a view that State Councils may be removed at will by member societies, and it is inconsistent with any implication, as a matter of construction, of a right to remove State Councils at will which is not express in AFIC’s constitution. Mr Dixon also points out that, so far as a State Council is a part of the federation constituted by AFIC, the nature of a federation of state bodies does not contemplate the ready substitution of one body for another among its components.

67. Mr Ashhurst responds that cl 5(1) of AFIC’s constitution provides for a State Councils to be formed by the local AFIC member societies of each State, and submit that that clause allows the formation of a new State Council when the existing State Council continues to exist, and impliedly (as a matter of construction) allows the displacement or removal of the previous State Council. I do not accept that submission. As I have noted above, 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. Mr Ashhurst also submits that a State Council can be formed without the previous one being “formally” removed and, implicitly, that the appointment of a new State Council displaces the old by an “informal” means. That submission does not seem to me to advance AFIC’s position, because the reasons that a provision for removal or displacement of the State Council are not implied as a matter of construction are also reasons why it would not occur informally and without any constitutional mechanism for its occurrence.

68. Mr Ashhurst also submits that the construction for which Mr Dixon contends has the result that a State Council would be left in place in perpetuity, although it appears that State Councils have been replaced from time to time in an informal manner. That result is not self-evidently unreasonable, where it is no more surprising that AFIC’s constituent bodies should remain in place into the future than that AFIC should remain in place into the future. That result does not prevent the resolution of issues within a State Council since, as Mr Dixon points out, AFIC member societies in a state may apply to join a State Council and the majority of them will control its general meeting, and cl 18(e) of AFIC’s constitution also provides a mechanism for resolving disputes among member societies in a State. That result also need not continue in perpetuity since, if AFIC’s member societies wish to have a power to remove a State Council, or to confer that power on AFIC’s executive committee, then they can seek to make any lawful amendment to AFIC’s constitution to introduce that power, presumably in a manner that will afford procedural fairness and appropriate procedural safeguards to a State Council that would be adversely affected by its removal from that role. There is also force in Mr Dixon’s submission that the construction for which Mr Ashhurst contends would allow AFIC to control its constituent bodies, by promoting dissident bodies which it then purports to recognise to the exclusion of the State Councils which formed it, although it is not necessary to find that occurred here in order to determine this matter.

69. I should note, for completeness, that Mr Ashhurst also submitted in closing submissions that it could not be the case that a State Council could never be removed because, if that were the case, then UMNSW was not validly appointed as State Council and, elaborating on that position, that:

“The plaintiff itself concedes that it was not the first State Council for New South Wales in existence. If it were impossible to remove or replace a State Council then the plaintiff could not have been validly appointed as the State Council. …

As for the plaintiff’s position, what is clear is that the plaintiff contends that a State Council can be replaced, because it says that it became the State Council to fill a void left by the previous State Council, which was purportedly suspended by AFIC’s Federal Council on the grounds that it had failed to hold annual general meetings and elections… What is less clear is how the plaintiff says this occurred.

The result is that on the plaintiff’s own argument, the plaintiff was never validly appointed as the State Council, because its predecessor was never validly removed and thus remains the State Council.”

70. I asked Mr Ashhurst about the status of this submission in closing submissions and it appears that AFIC’s position is that it does not seek any finding to this effect but maintains the submission for rhetorical purposes. That position seems to me to have several difficulties which I should record to avoid difficulties arising in any further disputes between the parties. First, AFIC, CIS and Mr Zoabi could have, but did not, seek a declaration in these proceedings that neither UMNSW (nor, implicitly, any other successor state council in any Australian State) was validly appointed. Second, whether such a declaration would have depended on factual matters, most obviously whether a former body had ceased to be a State Council in fact before a new State Council was appointed. Third, as Mr Dixon points out and I accept, UMNSW could have led evidence to seek to meet an application for such a declaration, which it had no reason to lead where no such declaration was sought. Fourth, procedural fairness would have required that that issue be identified prior to the Defendants’ closing submissions. Fifth, no inference follows from the fact that UMNSW is the successor to an earlier State Council that there is a constitutional power to remove that earlier State Council, because that may have resulted from an earlier non-compliance with AFIC’s constitution; and, sixth, even if that were the case, no inference would follow from any lack of that power that UMNSW is not now the State Council for New South Wales, where that result may well be established by a conventional or other estoppel that now binds AFIC, UMNSW and AFIC’s member societies.

71. I should also note, again for completeness, that Mr Dixon submits that there is also no express power under AFIC’s constitution for any of its organs to recognise or replace an existing State Council, where they are constituent parts of the federation, and AFIC’s executive committee did not have any express or implied power to recognise or replace the existing State Council for NSW. I did not understand the Defendants to seek to support the appointment of the New Council on the basis that AFIC or its executive committee itself had any power in respect of its appointment, as distinct from member societies having an ongoing ability to replace State Councils as they wished. I would not have accepted the submission that AFIC had any such power, had it been put.

72. For these reasons, the declaration sought by UMNSW that it is the State Council for New South Wales as defined in cl 3 of AFIC’s constitution should be made. The declaration sought by AFIC and Mr Zoabi that the individuals constituting the New Council now comprise the State Council for New South Wales, pursuant to AFIC’s constitution, should not be made.

Validity of UMNSW meeting held on 17 January 2021

73. AFIC seeks a declaration that, for the purposes of AFIC’s constitution, no State Council was elected at the meeting purportedly held by UMNSW on 17 January 2021. So far as the Defendants also challenge the conduct of UMNSW’s meeting on 17 January 2021, possibly as a step towards that declaration, by reference to the member societies who were notified or attended it, Mr Dixon submits that UMNSW was already the State Council on that date and no resolution passed on that date was material to its continuing in that position. I accept that submission, and it seems to me that nothing turns on this question for the purpose of UMNSW’s status as State Council. It also seems to me that AFIC’s claim for a declaration in this form is misconceived, where AFIC’s constitution does not require any further election of UMNSW to the position of State Council, once it has become State Council for the purposes of cl 3 of AFIC’s constitution, and there is no utility in a direction that a step that was not required did not occur. Mr Dixon also submits, and I also accept, that the Defendants’ submission that UMNSW’s meeting held on 17 January 2021 was not a valid AGM for the purposes of AFIC’s constitution says nothing as to the validity of that meeting for the purposes of UMNSW’s constitution, and it is the latter which governs the validity of appointments that occurred on that date.

74. I have also referred above to evidence of Messrs Samen, El Kordi and Taleb, led by the Defendants, that organisations with which they were associated were not given notice of and did not attend UMNSW’s AGM. This evidence appears to be directed to the validity of this AGM for the purposes of AFIC’s constitution. It appears that, notwithstanding that cl 5(8) of AFIC’s constitution contemplated that member societies of AFIC would become members societies of the relevant State Council, these bodies did not apply to become members of UMNSW; were not required to be given notice of or permitted to vote at UMNSW’s AGM under its constitution; and were not given notice of that meeting and did not attend it. It seems to me that questions of who should be given notice of UMNSW’s AGM and vote at it and of the validity of the AGM must be determined by reference to UMNSW’s constitution, not by reference to AFIC’s constitution, and the Defendants did not contend that UMNSW’s constitution was not complied with. Mr Dixon also submits, and I accept, that that clause cannot be read as imposing “automatic” membership on UMNSW, which can only admit members in accordance with its own constitution. That clause could readily be satisfied by the process which AFIC had previously adopted, that new societies were admitted to membership of AFIC after it had received feedback and acceptance from the relevant State Council, and presumably they applied for membership of the State Council at the same time. While Mr Dixon develops further arguments under this head, it is not necessary to address them given the conclusions I have reached on this basis.

75. Mr Ashhurst submits that UMNSW has not established who was given notice of its 17 January 2021 meeting and that, on its own evidence, more than half of the societies present and voting were not members of AFIC. Assuming, without deciding, the correctness of that proposition, it does not follow, as Mr Ashhurst contends, that the meeting “was not in accordance with AFIC’s constitution and was therefore void”. The validity of that meeting is to be determined, in respect of UMNSW, by reference to its own constitution and the Associations Incorporations Act 2009 (NSW), so far as it applies to it, and no basis has been shown for a finding that the meeting did not comply with UMNSW’s constitution. Where that proposition does not follow, the consequential proposition that the appointment of Mr Elrayes as delegate of the State Council of New South Wales had no effect also does not follow. I address that question further below.

Who was validly appointed as the delegate for the State Council for New South Wales

76. UMNSW seeks a declaration that the purported appointment of Mr Zoabi as delegate for the State Council for New South Wales by CIS on or about 11 February 2021 was invalid; that follows where the Defendants do not contend that CIS became the State Council for New South Wales, and I am not satisfied on the evidence that that occurred. That result also follows in respect of any appointment of Mr Zoabi by the group of individuals comprising the “New Council” where I have held that the New Council is not the State Council for New South Wales.

77. UMNSW also seeks a declaration that Mr Elrayes is duly appointed delegate for the State Council of New South Wales as defined in cl 12(1) of AFIC’s constitution; that depends both on the continuance of UMNSW as State Council for New South Wales and on the scope of that clause. Clause 12(1) of AFIC’s constitution relevantly provides:

“Every State Council shall be entitled to be represented at any meeting of the Federal Council or Federal Congress by one (1) delegate, being in order of priority:

(a)    the chairman of the State Council executive committee (or equivalent); or a member of the State Council executive committee nominated in writing by its chairman; or

(b)    a member of the State Council executive committee elected to represent the State Council by that committee; or

(c)    a member of the executive committee of a member Society of that State Council who is elected by a majority of the member Societies of that State Council present at that Federal Congress meeting to represent that State Council.”

78. Mr Dixon submits, simply enough, that the appointment of a delegate to AFIC was the subject of a resolution at the UMNSW AGM on 17 January 2021, but UMNSW’s constitution does not require a delegate to be appointed by the AGM and Mr Elrayes has also since been appointed as that delegate by a further internal process of UMNSW.

79. Mr Ashhurst responds with a relatively complex argument, as follows:

“Mr Elrayes was purportedly elected as the plaintiff’s president at the plaintiff’s AGM and at a meeting of the plaintiff’s executive committee on 4 April 2021 they purportedly confirmed his status as the delegate to AFIC’s Federal Congress …

As the defendants understand it, the plaintiff contends that Mr Elrayes is “the chairman of the State Council executive committee (or equivalent)” within the meaning of cl 12(1)(a), or “a member of the State Council executive committee elected to represent the State Council by that committee” within the meaning of cl 12(1)(b).

Viewed from that perspective, the alternative argument that Mr Elrayes was appointed by the executive committee on 4 April 2017 adds nothing to the analysis. Either the committee elected on 17 January 2021 was the State Council executive committee, in which case Mr Elrayes was the chairman of it and was thus the delegate by default under cl 12(1)(a), or it was not, in which case it had no power to elect a representative under cl 12(1)(b). The defendant contends for the latter construction.

Again, cl 5(7) provides that only current financial member Societies of AFIC are “eligible to participate in the affairs of the AFIC or the relevant State Council”. Voting for an executive committee of a State Council is plainly participating in the affairs of that State Council within the meaning of cl 5(7).

… on the plaintiff’s own case, the majority of those present and voting at the plaintiff’s purported 17 January 2021 AGM were not AFIC member Societies and a number of AFIC member Societies were not notified of the AGM. That being the case, there was no election of a “State Council executive committee (or equivalent)” within the meaning of cl 12(1) of the AFIC [c]onstitution, whatever the validity may have been from the perspective of the plaintiff’s own constitution.”

80. Mr Ashhurst submits, and I readily accept, that the Court, in construing AFIC’s constitution, must determine the objective intention of AFIC’s members in adopting a constitution in that form and that, as with all contracts, the Court should construe the constitution as a single document and endeavour to find a harmonious construction, preferring constructions which do not appear capricious, unreasonable, inconvenient or unjust: Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1973) 129 CLR 99; [1973] HCA 36; Echunga Football Club Inc above at [21]. The critical step in Mr Ashhurst’s reasoning is the proposition that “there was no election of a “State Council executive committee (or equivalent)” within the meaning of cl 12(1) of AFIC’s constitution, whatever the validity may have been from the perspective of the plaintiff’s own constitution” (emphasis added). That proposition impliedly recognises that, as Mr Ashhurst accepted in oral submissions, the Defendants do not contend that UMNSW’s AGM did not comply with UMNSW’s constitution. In particular, members societies who voted at that AGM were UMNSW members who were entitled to do so under UMNSW’s constitution, and there is no evidence that any AFIC member society that did not attend and did not vote at that AGM had applied for admission as or been admitted as a member of UMNSW in accordance with its constitution. The Defendants’ reasoning ultimately depends on the premise that, once a person who is not an AFIC member in any way participates in a State Council’s affairs (since cl 5(7) of AFIC’s constitution is not limited to the conduct of AGMs), then steps taken by that State Council that are valid in accordance with its constitution can be treated as invalid for AFIC’s purposes. That has the immediate difficulty that cl 5(7) of AFIC’s constitution does not prescribe that consequence for non-compliance with it.

80. The proposition for which Mr Ashhurst contends seems to me to be unworkable and would lead to capricious, unreasonable and inconvenient results. It has the consequence that, although cl 5(7) of AFIC’s constitution does not identify any consequence of invalidity arising from noncompliance with that clause, whether significant or trivial, any State Council would be unable to conduct an AGM or appoint an executive committee or a delegate that would be treated as valid for AFIC’s purposes, if a single one of its member societies had failed to pay its subscription to AFIC when due and then attended and voted at that meeting, or participated in any other aspect of that State Council’s affairs. That approach would either expose AGMs of State Councils to invalidity arising from delays in payment that were trivial or unknown to them; or, more likely, that approach would simply allow AFIC to pick and choose which State Councils could appoint delegates to its Federal Council or Federal Congress and who could be appointed as delegates by asserting, in respect of any State Council or delegate that it wished to exclude, that there had been a participation by a non-financial AFIC member or non-member in an AGM or in that State Council’s wider affairs at some time or in some manner.

81. Notwithstanding the complexity of Mr Ashhurst’s submission, it seems to me that the validity of Mr Elrayes’ appointment as delegate of UMNSW is determined in a straightforward way by construction of cl 12(1) of AFIC’s constitution. It seems to me that the references to “State Council” and “executive committee” in that clause each require the identification of the State Council, and I have held above that UMNSW satisfies that description, and of its executive committee as established in accordance with that State Council’s constitution. There is no suggestion here that UMNSW’s executive committee was not properly established in that way. That clause then provides that a State Council is entitled to be represented at any meeting of the Federal Council or Federal Congress by, in first priority, the chairman of the State Council executive committee (or equivalent) and, notwithstanding Mr Ashhurst’s submission noted below, Mr Elrayes (although described by UNSW as its “President”) meets that description. That clause provides that a State Council is entitled to be represented, in second priority, by a member of the State Council executive committee elected to represent that State Council by that committee. If Mr Elrayes did not satisfy the first priority category, then he also satisfies that category. It is not necessary to determine whether he also satisfied the third priority category, which depends on an election by member societies of the State Council.

82. For these reasons, the declaration sought by the Plaintiff that Mr Elrayes is the duly appointed delegate for the State Council of New South Wales as defined in cl 12(1) of AFIC’s constitution should be made. AFIC and Mr Zoabi seek a converse declaration as to Mr Zoabi’s appointment as delegate for the State Council. That declaration cannot be made, since the individuals comprising the New Council are not the State Council for New South Wales and they have no capacity to appoint a delegate for that State Council.

Whether a meeting should be convened to elect a new State Council for New South Wales

84. Alternatively, AFIC seeks an order that a third party cause a notice to be distributed to member societies of AFIC which would, in effect, convene a meeting of New South Wales-based member societies of AFIC in order to elect a new State Council for New South Wales. Mr Ashhurst submits that, if the Court found against AFIC and Mr Zoabi as to the validity of the 16 January 2021 meeting and against the Plaintiff as to the validity of the 17 January 2021 meeting, then AFIC would find itself without a validly appointed State Council for New South Wales, and should order a new meeting in order to form a new State Council. I do not accept that submission, where UMNSW is, so far as the evidence goes, already the State Council for New South Wales and nothing has occurred to change that position nor would such a meeting have any utility where, on the findings I have reached, there is no mechanism in AFIC’s constitution to remove and replace UMNSW as the State Council at such a meeting.

Validity of resolution to place Mr Elcheikh on a register of proscribed persons

85. UMNSW seeks a declaration that AFIC’s decision on or about 17 February 2020 to place Mr Elcheikh on a register of proscribed persons, with the consequence that he was not entitled to act as UMNSW’s delegate to AFIC or attend meetings, is invalid. AFIC concedes that such a declaration should be made.

Liberty to apply

86. UMNSW seeks a further order that liberty be reserved to all parties to apply to the Court to vary or discharge these orders or for directions generally. It is to be hoped that, assisted by the judgment, AFIC may be prepared to give effect to its constitution and recognise UMNSW’s and its appointed delegate’s role under that constitution. It seems to me that, if it is not, UMNSW might fairly raise, and the Court may have to address, whether further orders are required. I reserve liberty to apply against that unhappy contingency.

Orders

87. I direct the parties to bring in agreed short minutes of order to give effect to this judgment and as to costs within 7 days or, if there is no agreement, their respective draft short minutes of order and submissions not exceeding five pages in one and a half spacing as to any differences between them.

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Amendments

25 April 2021 - Correction of typographical error in paragraph 74.

Decision last updated: 25 April 2021