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

Supreme Court New South Wales

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