Gouros & Ors v Order of AHEPA NSW Incorporated

By a Third Further Amended Summons (“3FAS”) and Second Further Amended Statement of Claim (“2FASC”) each dated 26 September 2023, the Plaintiffs (“Gouros parties”) seek a range of relief, which is substantially narrowed from that which they originally sought as a result of the resolution of issues between the parties. These proceedings were commenced by the Gouros parties when the First Defendant, Order of AHEPA NSW Incorporated (“AHEPA NSW”), proposed to enter into an agreement for licence and lease dated 6 May 2021 with Bayside Council in respect of the Bexley Bowling Club. That proposal was supported by a majority of the persons claiming to be members of AHEPA NSW and opposed by other members including the Gouros parties, and the entry into that arrangement was ratified by an apparent majority of members of AHEPA NSW in a special resolution conducted by postal vote in September and October 2021. The validity of that vote was previously challenged by the Gouros parties in these proceedings. That issue has since been displaced by the fact that Bayside Council has terminated the agreement for licence and lease with AHEPA NSW and AHEPA NSW now does not challenge that termination.

The First Defendant, AHEPA NSW was formed in 1993 as an incorporated association under the Associations Incorporation Act 1984 (NSW) (“1984 Act”) and has been registered under the Associations Incorporation Act 2009 (NSW) (“2009 Act”) since it took effect from 1 July 2010. The Second Defendant, Bayside Council, was removed as a party to the proceedings since no relief is sought against it in the Gouros parties’ narrower case. The Third to Tenth Defendants (“Eight Incorporations”) are several incorporated associations, members of which claim to be members of AHEPA NSW. I will use the term Defendants to refer to the remaining Defendants, now excluding Bayside Council.

There have been disputes between a faction of AHEPA NSW that has the majority on its Committee of Management on the one hand, and the Gouros parties and persons aligned with them on the other, concerning AHEPA NSW’s management and direction for many years. There have been several previous proceedings in respect of these disputes, and the history of the unincorporated association previously known as the “Australian Hellenic Educational Progressive Association”, and subsequently as “The Order of AHEPA” or “AHEPA Australia” and of these disputes has been set out in previous decisions of this Court at first instance and on appeal to which I refer below. I also address that history and the significance of those decisions to the matters which arise in these proceedings below.

It is common ground that the Gouros parties, or most of them, are members of AHEPA NSW and members of five chapters of AHEPA NSW (2FASC [A1]-[A7], Defence [1]-[7]). The Eight Incorporations, unless their members are excluded from AHEPA NSW as sought by the Gouros parties, comprise a significant number of the existing members of AHEPA NSW, by reference to the membership lists of the Eight Incorporations (Ex J1, 8611- 8632) comprising 429 members and the total membership list of AHEPA NSW (Ex J1, 6860-6874) comprising 499 members. I recognise that the Gouros parties indicate that they take issue with those membership numbers. It is at least clear that the relief sought by the Gouros parties would bring about a change of control of AHEPA NSW in favour of the members of the unincorporated chapters associated with the Gouros Parties, by excluding the many members of the Eight Incorporations who are currently recognised as members of AHEPA NSW, unless they are prepared to and permitted to join the five chapters of AHEPA NSW associated with the Gouros parties.

I now set out a chronology of events, drawing partly on the parties’ chronologies and partly on the documents tendered, largely in a joint court book (Ex J1), as limited to the narrower issues now raised. It is apparent that the positions expressed in many of the later documents reflect the well-entrenched differences of views between the parties and their radically different views of history and the merits of their respective positions. The length of that chronology highlights both the historical reach of the parties’ disputes and the extent to which they overlap with events addressed in earlier proceedings. The detail of these events is of limited relevance to the findings that I reach below but may be relevant to an appellate court if it takes a different view to that which I have taken.

The American Hellenic Educational Progressive Association was founded in 1922 and appears to have been referred to as the “Order of AHEPA” (Ex J1, 8545-8557). In August 1934, the Australian Hellenic Educational Progressive Association was established (Ex J1, 1023-1033). In May 1935, a general meeting in Scone, New South Wales resolved that it would adopt the by-laws of a similar American association “with the necessary alterations to comply with the law of this land” (Ex J1, 1034-1035). It appears that an “Order of AHEPA Queensland” was formed in August 1936 and an “Order of AHEPA Victoria” was formed in 1942 (Ex J1, 1269-1270). There are disputes, which I need not resolve for the reasons noted below, as to whether these organisations had continued existence and as to the extent of independence of the state-based bodies from a national body. It appears that the AHEPA “Mother Lodge” was relocated from Scone to Sydney in 1953 (Ex J1, 1054-1055).

Representatives of chapters of AHEPA from Queensland, Victoria and New South Wales attended a convention in Queensland in 1954 (Ex J1, 1063, 1142). There is some evidence that AHEPA’s state organisations were then understood as independent entities (Ex J1, 1064). In late 1954, the First Pan-Australian Convention of the Order of AHEPA established a Supreme or National Lodge composed of elected representatives of AHEPA NSW, AHEPA Queensland and AHEPA Victoria (Ex J1, 1065ff, 1102). The Gouros parties characterise these events as the unification of the Order throughout Australia and AHEPA NSW contests that characterisation. A meeting of the Grand Lodge in New South Wales in October 1954 then recorded that “[a]s a result of the 1954 AHEPA Convention at Brisbane it was resolved on the 7th September, 1954 by the Supreme Lodge that a GRAND LODGE be created in each of the States…” (Ex J1, 1101).

National conventions subsequently took place between 1954 and 2015 and there is also a dispute as to the extent to which the National Lodge or any national body exercised control over state bodies or their assets, which I do not need to resolve for the reasons noted below.

In the Constitution and Regulations of AHEPA Australia dated 1968 (Ex J1, 1139-1177), Clause 8, titled "History of the Order, recited (Ex J1,1142) that:

The Constitution and Regulations of AHEPA Australia as at 1978 (Ex J1, 1243) again noted (Ex J1, 1269), in the part of the Regulations referring to the “History of the Order”, that:

The Constitution and Regulations of AHEPA Australia as at 1990 (Ex J1, 1398) again stated (Ex J1, 1423) in the Regulations that

In January 1993, the Order of AHEPA NSW was incorporated and adopted a new constitution in the form titled “Rules of Order of AHEPA NSW Inc” (Ex J1, 1866, 1891). AHEPA NSW contends that, on its incorporation, the chapters of the previously unincorporated association remained operational as distinct entities which became chapters of the newly incorporated association, the Grand Lodge remained operational in a largely ceremonial role and the District Lodge remained operational until 2015.

A Notice of Meeting of the “First Committee Meeting of Order of AHEPA New South Wales Inc” convened for 21 April 1993 (Ex J1, 1894) enclosed rules which provided (Ex J1, 1906-1907), in cl 14(3), that:

It appears that, from 1993 until 2015, after the incorporation of AHEPA NSW, chapters and lodges based in New South Wales continued to attend state conventions and national conventions.

The constitution of AHEPA Australia was again amended in 1998 (Ex J1, 2609). Part 1 of the Regulations dealing with the history of the Order again recorded (Ex J1, 2640) that:

From early 2015, a dispute arose as to attempt to bring Chapter Antigone 8 under the Grand Lodge of NSW and AHEPA NSW and some other state bodies asserted their independence from AHEPA Australia. A meeting of the Grand Lodge of NSW held on 19 March 2015 (Ex J1, 4614) recorded that (Ex J1, 4623) several resolutions were passed, including:

On 9 April 2015, a meeting of the Committee of Management of AHEPA NSW (Ex J1, 4648) passed a resolution that the District Lodge of New South Wales is dissolved from 14 February 2015 because two chapters were needed for a District Lodge and, with Chapter Antigone joining the Grand Lodge of NSW, the District Lodge had ceased to exist. The National Lodge of AHEPA Australia and Grand Lodge of NSW and their solicitors subsequently exchanged correspondence (for example, Ex J1, 4662, 4663, 4664, 4708) asserting their respective positions as to these developments and, on 29 April 2015, a meeting of the Grand Lodge of NSW (Ex J1, 4667) passed resolutions:

On 18 November 2015, a special general meeting of AHEPA NSW purportedly passed special resolutions to convert AHEPA NSW from an incorporated association under the 2009 Act to a company limited by guarantee under the Corporations Act 2001 (Cth) (“Corporations Act”) and to adopt an amended constitution (Ex J1, 5019-5020) and several unincorporated chapters of AHEPA NSW were subsequently incorporated under the 2009 Act.

The issues now raised in these proceedings have been addressed, in various iterations, in proceedings since late 2016 involving overlapping parties. In December 2016, AHEPA NSW brought proceedings (“AHEPA 2016”) for declaratory relief to ratify resolutions passed (or purportedly passed) in 2005, 2007, 2010 and 2015 relating to its rules (Ex J1, 5319). Ms Melas and Ms Alexandrou (who is also the Sixth Plaintiff in these proceedings) opposed that relief and I made representative orders in those proceedings.

On 10 July 2017, AHEPA Australia Limited was registered as a company limited by guarantee (Ex J1, 8644).

The parties ultimately agreed consent orders that should be made in AHEPA 2016 and, by my judgment delivered on 21 March 2018 (Re Order of AHEPA NSW Inc [2018] NSWSC 458), I addressed the question whether orders should be made under s 1322 of the Corporations Act (as applied by the 2009 Act and the Associations Incorporation Regulations 2016 (NSW)) in respect of steps taken by AHEPA NSW between 23 November 2005 and 22 January 2010, including the disputed resolutions. I made the agreed orders and also noted an agreement between AHEPA NSW on the one hand, and Ms Melas and Ms Alexandrou on the other, broadly to the effect that, if the Commissioner for Fair Trading registered the resolutions passed in 2005 and/or 2010 amending cl 3 of AHEPA NSW’s constitution, then:

Schedule 1 to those orders referred to the relevant chapters (“13 Chapters”) by name, generally by the name of the corresponding former unincorporated association, which did not precisely reflect the names of the Eight Incorporations or refer to their incorporated status. I am comfortably satisfied that, construed in its context, that Schedule referred to the Eight Incorporations, being the incorporated associations, and not to any predecessor or parallel unincorporated bodies, where it is plain from documents exhibited to Mr Antonakos’ affidavit dated 24 January 2019 (Ex D2), on which Messrs Lianos and Gouros relied in subsequent proceedings before Rees J (“Lianos 2019”), that the Eight Incorporations were typically referred to, likely as a matter of tradition, by the names of the corresponding former unincorporated associations rather than by the names of the new incorporated entities.

There was a degree of inconsistency in the Gouros parties’ oral submissions as to the intent of the parties’ agreement that I noted in AHEPA 2016. Mr Pritchard, with whom Mr Klineberg appears for the Gouros parties, initially submitted that that agreement was directed to establishing a mechanism “only for the purposes of voting on the potential change to the constitution” (T154). Such a mechanism would plainly have required that the members of the Eight Incorporations be permitted to vote on that change, where the contrary position would have allowed only the members of the five then existing unincorporated associations associated with the Gouros parties to vote on that change, to the exclusion of the majority of the then members of AHEPA NSW comprising the members of the Eight Incorporations. However, the contrary position is now put by the Gouros parties as the proper construction of that agreement. Mr Pritchard sought to avoid that inconsistency, as best he could, by characterising the two positions in oral submissions as alternative arguments (T157). Mr Pritchard also drew attention to the fact that the rules of several of the Eight Incorporations (Ex P1) appeared to contemplate the possibility that the unincorporated associations which were their predecessors continue to operate in parallel (T157), although it is not necessary to reach a conclusion as to that possibility given the findings that I reach on other grounds below.

On 30 April 2018, AHEPA NSW held a special general meeting (Ex J1, 5582). AHEPA NSW then held a further special general meeting in November 2018 (Ex J1, 5641) which became the focus of further disputes between the parties.

In January 2019, Messrs Lianos (also the Third Plaintiff in these proceedings), Gouros (also the First Plaintiff in these proceedings) and Kypreos brought the Lianos 2019 proceedings, which challenged the validity of the amendment to AHEPA NSW’s constitution purportedly made at the special general meeting in November 2018 and also challenged resolutions passed at subsequent meetings concerning the Bexley Bowling Club. Mr Corsaro, with whom Mr Rizk appears for the Defendants, points out that there is a significant overlap between the Plaintiffs in these proceedings and the persons who were previously involved in Lianos 2019 and later in appeals before the Court of Appeal, determined in Lianos v Order of AHEPA NSW Inc [2020] NSWCA 193 (“Lianos CA 1”) and Lianos v Order of AHEPA NSW Inc (No 4) [2021] NSWCA 159 (“Lianos CA 4”). As I noted above, Messrs Lianos and Gouros were two of the three plaintiffs in Lianos 2019 and two of the three appellants in the appeals and are the Third and First Plaintiffs respectively in these proceedings. Mr Antonakos (the Fourth Plaintiff in these proceedings) and Ms Alexandrou (the Sixth Plaintiff in these proceedings) swore affidavits which were relied on in support of the Originating Process in Lianos 2019. Only two Plaintiffs in these proceedings, Ms Cretan and Ms Bouris, were not involved in the conduct of Lianos 2019 and the appeals.

The plaintiffs in Lianos 2019 relied, in support of their Originating Process in those proceedings, on the affidavit dated 24 January 2019 of Mr Antonakos and its exhibit, which was then also put before the Court of Appeal in the appeals. Mr Antonakos there referred to notice papers and monthly meeting minutes produced between 1 July 2017 and 30 June 2018 for 12 of the 13 Chapters constituting AHEPA NSW by reference to pages within the exhibit to his affidavit. Importantly, that exhibit referred (Ex D2, 212ff) to documents relating to “Chapter Platon No 4”, which were annual general meeting and regular monthly meeting of AHEPA Platon Inc, an incorporated chapter; documents relating to “Chapter Anatole No 7”, which referred to AHEPA Anatole Inc, also an incorporated chapter (Ex D2, 243ff); documents relating to “Chapter Diogones No 8”, which referred to AHEPA Diogones Inc, again an incorporated chapter (Ex D2, 268ff); documents relating to “Chapter Ippokritis No 21” which referred to a meeting of AHEPA Ippokritis Inc, another incorporated chapter (Ex D2, 382ff); documents relating to “Chapter Chiron No 22”, which referred to a meeting of AHEPA Chiron Inc, also an incorporated chapter (Ex D2, 422ff) and to documents relating to “Chapter Alexandros No 25”, which referred to a meeting of AHEPA Alexandros Inc, an incorporated chapter (Ex D2, 450ff). Also importantly, these documents frequently referred to each of the incorporated chapters by the title of the former unincorporated chapter, drawing no distinction between the two.

Mr Antonakos also there drew no distinction between the former unincorporated chapters and the corresponding incorporated chapters and raised no suggestion that the incorporated chapters, being the Eight Incorporations, were not properly recognised within the 13 Chapters. That evidence provided a sufficient evidentiary basis for the Court of Appeal in the decision Lianos CA 4 to treat the Eight Incorporations as among the 13 Chapters there recognised as the constituent chapters of AHEPA NSW, and it falsifies the suggestion repeatedly made by the Gouros parties in these proceedings that the Court of Appeal was acting under a “misunderstanding” in doing so. The approach taken by the Court of Appeal in Lianos CA 4 was the same as that taken by Mr Antonakos in that affidavit, which was before the Court of Appeal, and by Messrs Lianos and Gouros in deploying that affidavit in support of the Originating Process in Lianos 2019. I return to the significance of those matters below.

Rees J heard Lianos 2019 on 13-15 March 2019 and her Honour delivered a lengthy judgment on 3 October 2019 (Re Order of AHEPA NSW Inc [2019] NSWSC 1329). Her Honour there outlined the history of AHEPA NSW and noted the scope of constitutional provisions relating to AHEPA Australia adopted in 1990. Her Honour addressed, at length, the authorities as to the position where a previously unincorporated association is incorporated under the 2009 Act and its predecessor; reviewed the circumstances in which AHEPA NSW was established in January 1993; and then reviewed the rules adopted by AHEPA NSW, as subsequently amended in 2003, 2005, 2007 and 2010. Her Honour also referred to the result in AHEPA 2016 and to subsequent developments in the disputes between persons associated with AHEPA NSW in respect of the Bexley Bowling Club proposal.

Her Honour there considered (at [118]ff) the proper construction of rule 3(1) of the Order of AHEPA NSW Incorporated Rules registered with NSW Fair Trading in 2018 (“2018 Rules”) relating to membership of AHEPA NSW, which the Gouros parties also seek to have determined in these proceedings. Her Honour noted (at [123]) that the contention there put by Messrs Lianos, Gouros and Kypreos that the reference to “financial membership of the unincorporated association” in rule 3(1)(a) should be interpreted as reference to financial membership of a New South Wales–based chapter of AHEPA Australia Ltd (the incorporated body), as determined by the constitution and by-laws of that organisation, a proposition that differs from the position that they now put in these proceedings, which is directed to AHEPA Australia (the unincorporated association). Her Honour noted (at [127]) the contrary submission put by AHEPA NSW that, with its incorporation in 1993 and the subsequent passage of time, that rule had no useful work to do, so that members would be admitted under rule 3(2) of the 2018 Rules. Her Honour held (at [136]) that:

The words in italics are significant, because her Honour there addressed the question, now sought to be reagitated by the Gouros parties in these proceedings, whether the chapters of AHEPA NSW included incorporated entities and found that they did. That finding had the result that members of incorporated chapters including the Eight Incorporations could be members of AHEPA NSW under rule 3(1) of the 2018 Rules. Her Honour also there held (at [179]) that AHEPA NSW’s new constitution and by-laws were validly adopted and registered and (at [193]-[194]) that resolutions passed at a subsequent meeting were also valid. The orders made in those proceedings were, as I note below, then the subject of an appeal to the Court of Appeal, which gave rise to several judgments of the Court of Appeal.

On 3 October 2019, a meeting took place of the National Council of AHEPA Australia (Ex J1, 5871) and the Gouros parties contend that AHEPA Australian returned to its former structure of having a Grand Lodge of NSW and District Lodge of NSW in place of a State Council. At a further meeting on 16 – 18 November 2019 of the 65th National Convention of AHEPA Australia (Ex J1, 6008), a resolution was passed that the structure in NSW would revert to the Grand Lodge of NSW and the District Lodge of NSW, as distinct from a combined State Council (Ex J1, 6027). It appears that, notwithstanding that the Grand Lodge and District Lodge had previously been displaced within AHEPA Australia Ltd in about 2015 when it incorporated and adopted a new constitution, they were then brought back into operation, purportedly by a decision made by AHEPA Australia Ltd that this aspect of its affairs would be governed by the constitution of AHEPA Australia, the former unincorporated body, which recognised those bodies rather than by its own constitution. From about this time, the Grand Lodge and District Lodge again participated in the affairs of AHEPA Australia Ltd, presumably constituted by persons aligned with AHEPA Australia Ltd and the Gouros parties, and participated in national conventions of AHEPA Australia Ltd (Ex J1, 6023, 6027, 6695, 6701ff, 6706, 6708, 7863-7866, 8019, 8022, 8025, 8079, 8081-8082, 8088, 8095, 8292).

The plaintiffs in Lianos 2019 brought an appeal from the orders made by Rees J in Lianos 2019, which was initially determined by the Court of Appeal in Lianos CA 1, although the Court of Appeal later varied significant aspects of that judgment, as I note below, in its subsequent judgment in Lianos CA 4. Broadly, in Lianos CA 1, the Court of Appeal found that rules 3(1) and 3(2) of the 2018 Rules were cumulative requirements and the reference to an “unincorporated association” in the 2018 Rules was a reference to AHEPA Australia Ltd, the incorporated association which the Court of Appeal then understood to be the successor of AHEPA Australia, an unincorporated association.

Emmett AJA (at [110]ff), with whom Macfarlan and Meagher JJA agreed, observed in Lianos CA 1 that Rees J was correct to conclude that the reference in rule 3(1) of the 2018 Rules to membership of the “unincorporated association” denoted membership of a chapter, but there held that chapter membership could not be separated from membership of AHEPA Australia, in a finding that was varied in Lianos CA 4. His Honour observed (at [130]ff), in a finding that was also varied in Lianos CA 4, that AHEPA NSW could be characterised as a subordinate part of AHEPA Australia and should not be regarded as separate and independent from AHEPA Australia. The Gouros parties rely in this proceeding on Emmett AJA’s observations in Lianos CA 1 at [134], [136]-[137] and [139]-[143] that:

Emmett AJA also then observed (at [146]) that:

AHEPA NSW was subsequently placed in voluntary administration (Ex J1, 6237) and, on 24 September 2020, Messrs Lianos and Gouros filed a motion seeking leave to continue the appeal under s 440D of the Corporations Act (Ex J1, 6222). On 26 November 2023, in Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304 (“Lianos CA 2”), the Court of Appeal granted leave to continue the appeal to Messrs Lianos, Gouros and Kypreos under s 440D of the Corporations Act 2001 (Cth) and granted the relief sought by them, but stayed those orders for 21 days to allow the Eight Incorporations to seek to re-open the appeal. Subject to that stay, the Court of Appeal there declared (at order 3(a)) that the reference in certain clauses of the 2018 Rules to the “unincorporated association” was a reference to AHEPA Australia Ltd (I interpolate, the incorporated body) as the successor to the previous unincorporated association. The Court of Appeal also declared (in order 3(b)) that:

On 11 December 2020, the Eight Incorporations filed a motion in the appeal seeking that they be joined as parties to the appeal in order to apply for an order that the Court of Appeal reopen its judgment in Lianos CA 1 and sought an extension of the stay ordered in Lianos CA 2: Lianos v Order of AHEPA NSW Inc (No 3) [2020] NSWCA 340 (“Lianos CA 3”) at [6]-[8]. On 17 December 2020, the Court of Appeal in Lianos CA 3 extended the stay of the orders in Lianos CA 2 until the determination of the reopening application.

The Court of Appeal heard the reopening application on 26 February 2021 and Mr Corsaro emphasises an exchange which then took place in that application between Mr Ashhurst (who there appeared for Messrs Lianos, Gouros and Kypreos) and the Court of Appeal (Ex J1, 6665-6666) as follows:

At that point, Counsel for Messrs Lianos and Gouros accepted a proposition which they now seek to controvert, and invited the Court of Appeal to proceed on the basis that the Eight Incorporations were, at least at the point of incorporation and the agreement noted in my judgment in AHEPA 2016, among the 13 Chapters. Counsel’s acceptance of that proposition is not surprising where, as I have noted above, the evidence of Mr Antonakos on which Messrs Lianos and Gouros had relied in support of the Originating Process in Lianos 2019, which was before the Court of Appeal in the subsequent appeal, itself proceeded on the basis that the Eight Incorporations were within the 13 Chapters.

Turning now to Lianos CA 4, the Court of Appeal there declared that, on and from my orders made on 21 March 2018 in AHEPA 2016, in order to become a member of AHEPA NSW who is entitled to vote at any general meeting of members of AHEPA NSW, a person must have been a financial member, on the 30th of June of the last financial year, of one of the 13 Chapters. In oral submissions, Mr Pritchard accepts that Messrs Lianos and Gouros did not contend, in Lianos CA 4, that the Eight Incorporations, by reason of their incorporation or their history, were not chapters of AHEPA NSW and were strangers to it (T159). That is also not surprising where, as I noted above, Messrs Lianos and Gouros had put evidence before Rees J in support of the Originating Process in Lianos 2019, which was in turn before the Court of Appeal in Lianos CA 1 and Lianos CA 4, that proceeded on the basis that the Eight Incorporations were chapters of AHEPA NSW.

In Lianos CA 4, the Court of Appeal recognised (at [34]ff) difficulties which had arisen in respect of its orders made in Lianos CA 1 and Lianos CA 2, arising from its observations concerning the subordinate position of AHEPA NSW and its chapters to AHEPA Australia. The Court noted (at [37]) that, in Lianos CA 1 at [114], it had agreed with Rees J’s finding in Lianos 2019 that rule 3(1) of the 2018 Rules contemplated membership of a chapter geographically located in New South Wales, and noted (at [39]) that both Rees J and the Court of Appeal had concluded that the “unincorporated association” referred to in that rule was the Order of AHEPA in the State of New South Wales, as referred to in Pt XIV of the 1990 AHEPA Constitution. The Court of Appeal observed (at [45]) that, while membership of the “unincorporated association” referred to membership of AHEPA Australia, that condition was satisfied by membership of a chapter geographically located in New South Wales and (at [46]) that:

The Court also recognised (at [49]) that:

The Court then explored (at [50]ff) several complexities in respect of that observation. The Court observed (at [53]) that:

The Court then observed (at [63]) that there are 13 Chapters located in New South Wales, identified those chapters and observed that:

Mr Corsaro rightly submits, in summary, that the Court of Appeal there identified that there were 13 Chapters in AHEPA NSW as at 6 August 2021 and identified that the Eight Incorporations were eight of the 13 Chapters; took into account (at [65]) that, without modification of the orders in Lianos CA 1, delegates from the Eight Incorporations would not be allowed to participate in AHEPA NSW’s Committee of Management; and also noted (at [81]) that the effect of the Court’s orders in Lianos CA 4 would be, in effect, to freeze the composition of the “unincorporated association” as referred to in rule 3(1), limiting it to the 13 Chapters including, I interpolate, the Eight Incorporations. The Court also referred (at [64]) to my judgment in AHEPA 2016, where I had noted the agreement between the parties as to who would be entitled to vote at a special general meeting and not expressed any view as to its merits.

The Court of Appeal recognised (at [74]) its earlier misapprehension as to the structure of AHEPA Australia Ltd and possibly AHEPA Australia, and the relationship of that structure with AHEPA NSW, in its judgment in Lianos CA 1 and observed (at [79] and [81]) that:

As I noted above, on 6 August 2021, the Court of Appeal in Lianos CA 4 rescinded order 3(a) and amended order 3(b) made in Lianos CA 1 to read as follows:

It seems to me that this declaration must be construed on the basis that the 13 Chapters include rather than exclude the Eight Incorporations, where the Plaintiffs advanced that case in Mr Antonakos’ evidence in Lianos 2019 which was then put before the Court of Appeal, and the Court of Appeal explained the orders made in Lianos CA 4 on that basis. The Gouros parties, in effect, seek to have me reverse that declaration, as construed by reference to that evidence and the Court of Appeal’s reasoning, in this proceeding.

The parties relied on voluminous affidavit evidence, although limited parts of it were read, as the issues in the proceedings narrowed, and they largely agreed that significant parts of that evidence should be admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) (“Evidence Act”) as the witnesses’ understanding rather than as proof of the relevant fact. That had the result that many of the facts for which the parties contended, had they been relevant, were only proved so far as they emerged from the tender of documents. The witnesses’ affidavits generally established only that they each understood matters in a way that was, unsurprisingly, consistent with the position put by the faction with which they were associated and inconsistent with the position for which the other faction contended.

First, the Gouros parties read the affidavit dated 5 April 2023 of Ms Melas, who had previously been party to AHEPA 2016. She is a member of Chapter Arete No 3 and says that she has been a member of AHEPA Australia since 1972 and a member of AHEPA NSW since about 1993. She gives evidence of the circumstances in which, in 2015, she was told of a separation between the Grand Lodge of AHEPA NSW and the National Lodge of AHEPA Australia and did not support that course. Ms Melas also refers to a dispute which existed, in 2015 and into the first half of 2016, between Chapter Arete No 3 and representatives of AHEPA NSW as to the status of that chapter, although it is not apparent why that dispute is relevant to the matters arising in these proceedings.

Second, the Gouros parties read the affidavit dated 6 April 2023 of Mr Antonakos, who is a member of AHEPA Australia, and has been a member of Chapter Prometheus No 6 since 1980, and has been affiliated with Chapter Apollon No 16 since 1991 and is a financial member of that chapter. He is also a member of AHEPA NSW. I have referred above to Mr Antonakos’ affidavit evidence led in Lianos 2019 and put before the Court of Appeal in Lianos CA 1 and Lianos CA 4. Mr Antonakos refers in his affidavit in these proceedings to the circumstances of the acquisition of and dealings with properties at Surry Hills and Chippendale and gives evidence, admitted by agreement of the parties with a limitation under s 136 of the Evidence Act as his understanding only, of his understanding as to the relationship between AHEPA NSW and AHEPA Australia and the requirements for membership of those organisations dating back to 1990. He also refers to events at meetings of AHEPA NSW and AHEPA Australia over several years, although many paragraphs of his affidavit which simply referred to documents were not read. It appears that Mr Antonakos’ affidavit was directed to providing a comprehensive history of AHEPA NSW and AHEPA Australia without significant regard to the scope of the matters in issue in the proceedings when they commenced, and still less the narrower matters which remain in issue in the proceedings. Mr Antonakos did not there refer to the evidence that he had given in Lianos 2019, to which I referred above, that proceeded on the basis that the 13 Chapters included the Eight Incorporations. He was not cross-examined as to that matter; Mr Corsaro made clear that he made no submission adverse to Mr Antonakos concerning that omission (T190); and I reach no finding adverse to Mr Antonakos in respect of that omission.

Third, the Gouros parties read the affidavit dated 6 April 2023 of Ms Alexandrou, which refers to her involvement with Chapter Arete No 3 and to her membership of AHEPA Australia and AHEPA NSW. She also refers to events since 2015, although the parts of her affidavit which merely referred to documents were also not read, and to her concerns as to aspects of the operation of AHEPA NSW, although it is not apparent how those concerns are relevant to the matters that remain in issue. Fourth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Bouris, who has been associated with several chapters of AHEPA Australia or AHEPA NSW, and sets out her understanding of the process by which members join a chapter of AHEPA NSW and refers to disputes between Chapter Antigone No 8 and AHEPA NSW and to the membership of AHEPA NSW. Large parts of her affidavit appear to be relevant, if at all, to matters that are no longer in issue in these proceedings.

Fifth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Cretan, who is a member of Chapter Arete No 3 and refers to the practice for members joining that chapter and to the financial members of that chapter. Sixth, they read the affidavit dated 6 April 2023 of Ms Diakovasili, who is a member of Chapter Antigone No 27, in turn refers to the financial members of that chapter and addresses issues as between the chapter and AHEPA NSW, which also do not appear to be relevant to any matter that remains in issue in the proceedings. Seventh, they read the affidavit dated 6 April 2023 of Mr Gouros, who is a member of Chapter Heracles No 12. He refers, in evidence admitted with a limiting order under s 136 of the Evidence Act as to his understanding, by agreement of the parties, to his previous role as President of the Grand Lodge of NSW and to his financial membership of Chapter Apollon No 16. Eighth, they read the affidavit dated 6 April 2023 of Mr Lianos, who is also a member of Chapter Heracles No 12 and an affiliated member of Chapter Anatole No 7, refers to the history of his involvement with AHEPA Australia and to the position in respect of state conventions and national conventions and other meetings in 2019 and 2020 and to the identity of financial members of Chapter Anatole No 7. Ninth, they read the affidavit dated 6 April 2023 of Mrs Lianos, who is also associated with Chapter Heracles No 12 and identified the financial members of that Chapter as at June 2021, although it is again not apparent why that evidence is relevant to the matters that remain in issue. Tenth, the Gouros parties read the affidavit dated 6 April 2023 of Ms Lynch, who referred to her involvement with AHEPA Australia and addressed, in evidence that was not read, the separation of AHEPA NSW and AHEPA Australia in 2015, and, in evidence that had no apparent continuing relevance, referred to the preparation of a list of the financial members of Antigone No 8 for the 2021 financial year.

The Defendants read part of the affidavit dated 8 October 2021 of Mr Fandakis, who is a member of Chapter Chiron No 22 and has been a member of the Committee of Management of AHEPA NSW for Chapter Chiron No 22 since 2009. He referred, in evidence that was admitted by agreement of the parties with a limitation under s 136 of the Evidence Act, to his understanding as to the transfer of decision-making power from the Grand Lodge to AHEPA NSW’s Committee of Management. A substantial part of that affidavit was not read.

The Defendants also relied on Mr Fandakis’ second affidavit dated 28 June 2023, substantial parts of which were also not read. The parts of that affidavit that were read were generally admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as directed to his understanding, rather than as to proof of the fact. Mr Fandakis referred to the origin of AHEPA NSW, to organisations using the name “AHEPA” which operate in Queensland and Victoria and to their suggested independence from AHEPA Australia. He referred to the process by which a person becomes a member of AHEPA NSW, also in evidence admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as evidence of his understanding and not proof of the fact, and to the identity of the 13 Chapters which he contends include the Eight Incorporations. He contended that those chapters were recognised as the chapters of AHEPA NSW in AHEPA 2016, where I had noted the agreement of the parties as to who would be entitled to vote at a meeting, and contends that they were recognised as chapters of AHEPA NSW by the Court of Appeal in Lianos CA 4.

Mr Fandakis also outlined, again in evidence admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as his understanding, the history of those chapters and the time at which some of them became incorporated associations. He also addressed the role of the Grand Lodge of New South Wales, in evidence also admitted by agreement of the parties with a limiting order under s 136 of the Evidence Act as his understanding and not proof of the fact. He also referred to the current officers of the Grand Lodge of New South Wales and to the current members of the Committee of Management and current officers of AHEPA NSW, in evidence admitted on the same basis by agreement of the parties. He also responded to aspects of the affidavit evidence led by the Gouros parties, although it was not apparent that any of the matters in dispute between those affidavits would significantly advance the determination of the proceedings.

The Defendants also read part of the affidavit dated 21 June 2023 of Mr Kallimanis, who referred to his involvement with Chapter Diogenes No 8 and to the positions which he has held with AHEPA NSW and the Grand Lodge and to his role with the Committee of Management of AHEPA NSW. He also refers to the fact that the Grand Lodge of AHEPA NSW ceased to have any affiliation with the National Lodge from 2015 and responded to aspects of Ms Melas’ evidence on which the Gouros parties relied. They also read the affidavit dated 27 June 2023 of Dr Diamadis who referred to his various roles with AHEPA NSW, addressed the position in respect of applications for charters and national conventions and also responded to aspects of the evidence led by the Gouros parties.

The Gouros parties read several affidavits in reply, namely the affidavit dated 26 July 2023 of Ms Diakovasili, the affidavit dated 26 July 2023 of Ms Mouratidou relating to the translation of Ms Diakovasili’s affidavit, the affidavit dated 26 July 2023 of Mr Lianos, the affidavit dated 26 July 2023 of Ms Lianos, the affidavit dated 26 July 2023 of Mr Antonakos and the affidavit dated 26 July 2023 of Ms Bouris. Those affidavits took issue with aspects of the affidavit evidence led by the Defendants and referred to additional documents, although it is again not apparent to me that they significantly advanced any issue in the proceedings.

The first issue that remains in dispute between the parties is eligibility for membership (and financial membership) in AHEPA NSW. It is common ground that AHEPA NSW is governed by the 2018 Rules (2FASC [A9], admitted Defence [9]). It is also common ground (2FASC [A11], admitted Defence [11]) that rule 3(1) of the 2018 Rules provides that any person who has been a “financial member of the unincorporated association” on 30 June of the last financial year and agrees to be bound by the code of ethics and rules of the “unincorporated association” shall be entitled to be a member of AHEPA NSW.

The Gouros parties contend (2FASC [A12]) that, properly construed, for a person to be a financial member of the unincorporated association within the meaning of rule 3(1) of the 2018 Rules, the person needs to be a member of one of the chapters of AHEPA Australia based in New South Wales. The Gouros parties particularise the judgments of the Court of Appeal in Lianos CA 1 and Lianos CA 4 in support of that proposition. The Defendants respond (Defence [12]) that:

The Gouros parties then plead (2FASC [A13]-[A17]) that the current governing documents of AHEPA Australia comprise a Constitution revised in October 2010 and By-Laws also revised in October 2010 and they plead several provisions of that constitution dealing with the role of a National Lodge and how a chapter of AHEPA Australia is to be established. The Defendants deny (Defence [13]-[17]) these paragraphs, but only on the basis that AHEPA Australia ceased to exist in around July 2017, following the incorporation of AHEPA Australia Ltd, and admit that paragraph if the Court concludes to the contrary.

The Gouros parties then plead (2FASC [A18]), contrary to Lianos CA 4 on which they partly rely, that the current chapters of AHEPA NSW based in NSW are seven unincorporated chapters (“AHEPA Australia Chapters”). The Defendants respond (Defence [18]) that there are presently 13 Chapters, including the Eight Incorporations, reflecting the conclusion reached by the Court of Appeal in Lianos CA 4, and contend that it is not open to revisit that conclusion in that judgment in these proceedings. They also there contend that the Gouros parties are bound by the agreement reached in AHEPA 2016 and that it is not open to them to resile from that agreement and that:

The Gouros parties then plead (2FASC [A19]) and the Defendants deny (Defence [19]) that:

The Gouros parties then contend (2FASC [A21]-[A23]) that none of the Eight Incorporations has been approved as a chapter by the National Lodge of AHEPA Australia or holds a charter issued by the National Lodge; none of the members of the Eight Incorporations is a member of any of the AHEPA Australia chapters’ and:

Three things should be noted about the Gouros parties’ contentions in 2FASC [A11]-[A23]. First, they contend, contrary to the result reached by the Court of Appeal in Lianos CA 4, that the 13 Chapters include the Eight Incorporations, so that the members of the Eight Incorporations are entitled to be members of AHEPA NSW. Second, as I note below, the Gouros parties do not identify any tenable basis on which the position as to the “financial members of the unincorporated association” would not be determined consistently with the concepts of “unincorporated association” and “members of the unincorporated association” in the Rules, so that the proper construction of the latter concept is determinative of the proper construction of the former concept. Third, the Gouros parties seek findings that are directed to the exclusion of members of AHEPA NSW who are financial members of the Eight Incorporations from AHEPA NSW, although those members have not been joined as party to the proceedings, and I declined to make a representative, sought by the Gouros parties that would avoid the need for that joinder for the reasons noted below. After that occurred, the Gouros parties did not then seek any alternative order joining those individual members, or possibly one member of each of the Eight Incorporations as representative of the members of that body, as party to the proceedings.

Turning now to the parties’ submissions, Mr Pritchard characterises the proceedings as concerning eligibility for membership of AHEPA NSW. Mr Pritchard submits that none of the 13 Chapters referred to in the agreement between the parties noted in AHEPA 2016 is there identified as an incorporated entity. However, I have referred above to the documents exhibited to Mr Antonakos’ affidavit dated 24 January 2019 read in Lianos 2019 which indicate that the Eight Incorporations were generally referred to by the names of their unincorporated predecessors. In Lianos CA 4, the Court of Appeal also made declarations which, it seems to me, should be construed by reference to Mr Antonakos’ evidence which was before the Court of Appeal and the Court of Appeal’s conclusion that the 13 Chapters identified in that agreement included the Eight Incorporations. It is not necessary to address the further, and very detailed, submissions made by Mr Pritchard as to the background of those orders and the parties’ agreement noted in AHEPA 2016, given the findings which I reach below as to abuse of process and the fact that the large part of the relief sought by the Gouros parties cannot be made where they have not joined members of the Eight Incorporations who they seek to exclude from membership of AHEPA NSW and who are necessary parties to the proceedings so far as they seek that relief.

Mr Pritchard also relies on the fact that no representative order was made in Lianos 2019 or in the appeal and submits that the declarations made in those proceedings only bind the parties to those proceedings, namely AHEPA NSW, the Eight Incorporations and the individual appellants, including Messrs Lianos and Gouros who are Plaintiffs in these proceedings. While that matter may be relevant to the existence of an issue estoppel or res judicata arising from these proceedings, the case law to which I refer below indicates that it is of limited relevance to the question whether the Gouros parties’ claims in these proceedings amount to an abuse of process by re-litigation of matters that were or ought to have been in issue in Lianos 2019 and the subsequent appeals.

Mr Pritchard submits that:

I have addressed the Court of Appeal’s judgment in Lianos CA 4 above. I cannot accept Mr Pritchard’s submission where, as I noted above, the evidence led by Messrs Lianos and Gouros in Lianos 2019 and put before the Court of Appeal in Lianos CA 1 and Lianos CA 4, and specifically Mr Antonakos’ affidavit dated 24 January 2019 and its exhibit on which the plaintiffs relied in support of the Originating Process in Lianos 2019, proceeded on the basis the 13 Chapters included the Eight Incorporations. The exhibited documents made clear that the Eight Incorporations referred to themselves, in their incorporated form, by the names of the former unincorporated chapters. There was a sufficient evidentiary basis, in the evidence given by Mr Antonakos and the documents exhibited to his affidavit and there relied on by Messrs Lianos and Gouros, for the Court of Appeal to proceed on that basis. That matter is not properly characterised as an “assumption” wrongly made by the Court of Appeal, still less as a “another misapprehension” by the Court of Appeal, but instead as the factual basis on which the parties proceeded, consistent with Mr Antonakos’ affidavit and the documentary evidence, in Lianos 2019, Lianos CA 1 and Lianos CA 4.

Mr Pritchard also fairly recognises, in opening submissions, that the finding that the Gouros parties seek in respect of the Eight Incorporations has the necessary consequence that “none of the persons who are members of the Eight Incorporations is a member of one of the 13 Chapters and accordingly those members are not members of AHEPA NSW.” That emphasises, of course, the extent to which that finding is adverse to the interests of those individual members of the Eight Incorporations, who have not been joined as party to the proceedings and as to whom I have declined to make the representative order sought by the Gouros parties, for the reasons noted below. The Gouros parties did not then seek any alternative representative order. I return to that matter below.

In closing submissions, Mr Pritchard in turn identifies this issue as raising the question:

Mr Pritchard again submits that the “unincorporated association” to which reference is made in rule 3(1) of the 2018 Rules is AHEPA Australia and again refers to the observations in Lianos CA 1 and Lianos CA 4 to which I have referred above. Mr Pritchard again submits that a person is a “financial member of the unincorporated association” within the meaning of rule 3(1)(a) if a person is a financial member of one of the chapters of AHEPA Australia based in New South Wales and again relies on part of the decision in Lianos CA 4 and the declarations made in that case for that proposition. He contends that there are currently only seven chapters of AHEPA Australia based in New South Wales, excluding the Eight Incorporations, notwithstanding the observation of the Court of Appeal that the Eight Incorporations were included in the 13 Chapters in Lianos CA 4 at [63].

Mr Pritchard also submits that none of the Eight Incorporations (as distinct from their members) agree to be bound by the code of ethics and rules of the unincorporated association as provided by rule 3(1)(b) of the 2018 Rules, again seeking to controvert the Court of Appeal’s observation that the Eight Incorporations are chapters of AHEPA NSW. However, the relevant rule is directed to an individual member’s eligibility for membership and to his or her agreement to those rules and ethics, not to the position of the Eight Incorporations at a chapter level. The Gouros parties did not lead evidence as to the position of those individual members which should not be determined where they were not joined as parties to the proceedings. Mr Pritchard also identifies the adverse impact of the findings sought on existing financial members of the Eight Incorporations who are currently recognises as financial members of AHEPA NSW, in submitting that:

I find below that it is not open to the Gouros parties to pursue that proposition, both by reason of principles of abuse of process and because the members (and financial members) of the Eight Incorporations who would be excluded from membership (and financial membership) of AHEPA NSW, if that proposition was accepted, have not been joined as party to the proceedings, and a representative order was not properly made in the form proposed by the Gouros parties or sought by them in an alternative form.

Mr Pritchard in turn submits that the position now put by the Gouros parties is not inconsistent with Lianos CA 4, implicitly despite Mr Antonakos’ evidence there led by Messrs Lianos and Gouros (to which I referred above) that accepted that the Eight Incorporations were chapters of AHEPA NSW and the Court of Appeal’s conclusion that the Eight Incorporations were chapters of AHEPA NSW. I do not accept that submission, where a finding that the Eight Incorporations are not chapters of AHEPA NSW and their members (and financial members) are not members (and financial members) of AHEPA NSW would contradict the position advanced by Messrs Lianos and Gouros in leading Mr Antonakos’ evidence to support their claim in Lianos 2019 and the orders made by the Court of Appeal construed in accordance with that evidence and its reasoning to which I have referred above.

Mr Pritchard submits that the position for which the Gouros parties now contend would not result in a large part of the existing members of AHEPA NSW being “disenfranchised”, because they could become a financial member of AHEPA NSW by becoming a member of one of the unincorporated chapters of AHEPA Australia in New South Wales that are associated with the Gouros parties, and because they had voluntarily ceased being members of unincorporated chapters of AHEPA Australia based in New South Wales. That submission, with respect, is wholly unpersuasive. A person who presently is and wishes to remain a member (and financial member) of one of the Eight Incorporations and AHEPA NSW is plainly “disenfranchised” if he or she is excluded from the register of members of AHEPA NSW, as the Gouros parties seek, and then not entitled to vote at a meeting of AHEPA NSW or take part in its affairs. It is no answer to that proposition to say that he or she could then exercise a forced “choice” to join an unincorporated chapter associated with the Gouros parties, quite apart from the real risk that the unincorporated chapters may not then welcome or permit the enrolment of members of the opposing faction.

Mr Pritchard also addresses the principles applicable to construing the governing documents of associations, summarised by the Court of Appeal in Australian Federation of Islamic Councils Inc v United Moslems New South Wales Inc [2021] NSWCA 311, to which I have regard, but they have limited application here where the relevant issues of construction were previously determined in Lianos 2019 as varied by Lianos CA 1 and Lianos CA 4. Mr Pritchard also refers, at length, to the history of AHEPA Australia and AHEPA NSW, again drawing on the decision of the Court of Appeal in Lianos CA 1 and Lianos CA 4. Mr Pritchard also summarises events concerning AHEPA NSW and AHEPA Australia before 2015 and from February to April 2015, and identifies their suggested consequences, in submissions that again address the issues determined in Lianos 2019 and Lianos CA 1 and Lianos CA 4. Mr Pritchard addresses the history of previous litigation, including AHEPA 2016, Lianos 2019, Lianos CA 1 and Lianos CA 4, to which I have referred above. Mr Pritchard also develops an elaborate analysis of the suggested consequences of the position for which the Gouros parties contend, which I do not address, where to do so would advance the abuse of process which I address below and deprive the persons claiming to be members (and financial members) of AHEPA NSW who are members (and financial membership) of the Eight Incorporations of procedural fairness, where it seeks to establish that they should be excluded from membership of AHEPA NSW and they have not been joined as party to the proceedings, or an appropriate representative order made.

In closing, Mr Pritchard also relies on a chronology of some 74 pages addressing events in the history of AHEPA Australia and associated entities since 1934, although a significant part of the documentary evidence supporting that chronology was not tendered. The Gouros parties do not seek to address the consistency, or inconsistency, of the history for which they contend with the review of the history of these bodies in Lianos 2019 or the subsequent appeals, so that it is not possible to know the extent to which Messrs Lianos and Gouros, who were parties to Lianos 2019 and the subsequent appeals, now seek to have the Court reach findings as to matters already determined in those proceedings which are binding on them and AHEPA NSW, or reverse findings made in those proceedings which also bind them, or a mixture of the two.

In response, Mr Corsaro rightly points out that the Gouros’ parties submissions lead to results that could only be described as startling and incongruous. First, they have the consequence that, despite the parties’ agreement as to the identity of the 13 Chapters that I noted in AHEPA 2016 and the declarations made in Lianos CA 4, the number of chapters of AHEPA NSW would have been not thirteen but five at the time of that agreement and those declarations. The result arises because then number of chapters would, they contend, have been reduced to five from the twelve that existed in about March 2015 when, first, the several chapters that supported the Grand Lodge of New South Wales separated from the National Lodge in April 2015 so that, the Gouros parties contend, they repudiated their charters; and, second, some members of Chapter Antigone No 8 broke away to form a new chapter, Chapter Antigone No 27, which they contend was an invalid chapter. It is both startling and incongruous that, where the Gouros parties’ contend there were only five valid and operative chapters of AHEPA NSW from April 2015, all parties reached the agreement that I noted in AHEPA 2016 that there were 13 Chapters, including the invalid Antigone No 27. The Gouros parties respond with the equally startling response that that agreement did not refer to those of the Eight Incorporations which then existed, but instead to parallel unincorporated associations to the Eight Incorporations which, it appears, had no members. In consequence, again despite the results in earlier proceedings recognising the existence of 13 Chapters, the Gouros parties contend there are now only seven chapters of AHEPA NSW, comprising the five chapters which existed since 2015 and two additional chapters, a new Chapter Anatole No 7 to which a charter was granted by AHEPA Australia in November 2020 and a new Chapter Antigone No 27 to which a charter was granted on or around 8 March 2021.

Mr Corsaro also identifies an issue as to the extent to which an issue estoppel, res judicata or abuse of process prevents the litigation of matters that were or should have been raised in prior proceedings by the Gouros parties and I address that issue below. Mr Corsaro also refers to the principles applicable to res judicata, issue estoppel, Anshun estoppel (referring to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45), and to several authorities that deal with those principles. He submits that the two Defendants in AHEPA 2016, Ms Melas and Ms Alexandrou, were acting on behalf of themselves and all of the Gouros parties, by reason of the representative orders made in those proceedings. He submits that those proceedings squarely raised the question whether members of the Eight Incorporations (or those of them which were then incorporated) could validly vote at the then proposed special general meeting of AHEPA NSW; and that no contention was then put by the Defendants that the fact of incorporation of the Eight Incorporations (or those of them which were then incorporated) or their position vis-à-vis AHEPA Australia deprived them of the status of chapters of AHEPA NSW. Mr Corsaro also submits that the parties’ agreement that I noted in AHEPA 2016 treated the Eight Incorporations as members of AHEPA NSW, although the description of them did not expressly refer to their incorporated status. I accept that proposition and also note that the agreement then reached between the parties plainly did not contemplate that a significant number of members of AHEPA NSW, associated with the Eight Incorporations, should be excluded from voting at the then proposed special general meeting. Mr Corsaro submits that none of these matters should now be available to be re-litigated by the Gouros parties in these proceedings.

Mr Corsaro also relies on the fact that, as I noted above, in Lianos CA 4, the Court of Appeal made declarations on the basis, as explained at [63] of that judgment, that there were 13 Chapters comprising AHEPA NSW and that the Eight Incorporations were eight of those Chapters. He submits that the Gouros parties seek to challenge that finding in these proceedings, although two of them, Messrs Gouros and Lianos, were parties to those proceedings, and another three of them, Mr Antonakos, Mr Alexandrou and Ms Alexandrou led evidence in those proceedings in support of the position put by Messrs Gouros and Lianos in those proceedings. He also submits that the declarations made by the Court of Appeal were made in rem, although I do not consider it necessary to decide that question, given the findings that I reach below on other grounds. He points to the fact that the appellants in those proceedings, including Mr Gouros and Mr Lianos, did not then raise any contention that the Eight Incorporations were not chapters of AHEPA NSW or that their charters had been repudiated, or that there were no longer 13 Chapters as the Court of Appeal had found, which depended on including the Eight Incorporations in that number.

Mr Corsaro also points to the Court of Appeal’s observations in Lianos CA 4 as to the potentially adverse effect of the earlier orders that it had made in Lianos CA 1 on the workings of AHEPA NSW, including by their effect on the members of the Eight Incorporations and their delegates’ ability to participate in the Committee of Management. He submits that, having regard to the Court of Appeal’s decision in Lianos CA 4, I could not now find that events prior to August 2021 had resulted in any of the Eight Incorporations not being a chapter of AHEPA NSW.

In closing submissions, Mr Corsaro expands these submissions as follows:

In reply, Mr Pritchard submits that issues of abuse of process, issue estoppel and res judicata could only arise in relation to the issue of eligibility for membership (and financial membership) of AHEPA NSW and not the separate issue as to the composition of the Committee of Management of AHEPA NSW as provided under rule 15(1) of the 2018 Rules including the meaning of “Grand President” and “District President” as appearing in that rule. I accept that submission in dealing with that separate issue below.

Mr Pritchard also repeats the submission that the declaration made in Lianos CA 4 only binds the parties to the proceeding, where no representative order was made before Rees J or in the Court of Appeal, and submits that only two of the Gouros parties, the First and Third Plaintiffs, Messrs Gouros and Lianos, were parties to Lianos 2019 and in the Court of Appeal in Lianos CA 1 and Lianos CA 4. He submits that, consequentially, five of the Gouros parties were not parties to those proceedings although I have referred above to the fact that three of them gave affidavit evidence in support of Messrs Lianos’ and Gouros’ claim in those proceedings. I address the circumstances in which principles of abuse of process extend to re-litigation by non-parties to earlier proceedings below.

Mr Pritchard also points to the fact that the Court has made representative orders in these proceedings so that the Gouros parties represent all relevant persons associated with their faction, which he submits includes people who were not parties to or did not give evidence in or were not aware of the prior proceedings or who were not members at the time of the prior proceedings. There is no evidence as to whether anyone who will be bound by the representative order was not (or is not now) aware of the prior proceedings or their outcome, and Mr Pritchard does not explain why a new member of AHEPA NSW in the same faction as the Gouros parties should be entitled to re-litigate the earlier proceedings if the Gouros parties are not entitled to do so, with the result that this issue could be litigated for as long as and as many times as there are new members of that faction who wish to do so. I do not understand the basis of any suggestion that it is unreasonable that, if I find these proceedings are an abuse of process when brought by the Gouros parties, others in the same faction who are within the representative order are also bound by that result.

Mr Pritchard emphasises, and I accept, that the case law indicates that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution and only in the most exceptional or extreme case, and that the onus of satisfying the Court that there is an abuse of process lies on the party alleging it and the onus is “a heavy one”: O’Shane v Harbour Radio (2013) 85 NSWLR 698; [2013] NSWCA 315 (“O’Shane”) at [111], citing Williams v Spautz (1992) 174 CLR 509 at 529. Mr Pritchard also addresses other case law relating to the circumstances in which re-litigation, or a collateral attack on the result in earlier proceedings, may be an abuse of process and I address that case law below.

In reply, Mr Pritchard also cites Rees J’s judgment in Lianos 2019 at [1] for the proposition that the issues in that proceeding concerned “whether the constitution of AHEPA NSW was validly amended at a meeting in November 2018 and whether resolutions passed at subsequent meetings in accordance with the new constitution – concerning AHEPA NSW’s participation in redeveloping Bexley Bowling Club, about which its members are sharply divided – were also valid” and, if there was a problem with how the constitution was adopted in November 2018 and subsequent resolutions, whether orders should be made under s 1322(4) of the Corporations Act declaring that those resolutions were valid.

Mr Pritchard then refers to the issues in these proceedings and submits that “[t]he issues [now] before this Court are different and have nothing to do with any ultimately invalid general meeting in 2018 or the proposed amendment to the 2018 Rules.” That proposition is strictly correct so far as the Gouros parties now frame the relief they seek in different terms to that sought in Lianos 2019, but incorrect so far as the matters that they now raise, had they been put in Lianos 2019 and been correct, would have been a complete answer to the relief sought by AHEPA NSW in Lianos 2019, since they would have the consequence that the members of the Eight Incorporations who had voted at the general meeting in 2018 were not entitled to do so. AHEPA NSW’s entitlement to the relief sought in Lianos 2019 necessarily depended, in part, on whether the 13 Chapters identified in the agreement between the parties that I noted in AHEPA 2016 included the Eight Incorporations, so that their members were entitled to vote at least at the special general meeting that was in issue in that case. I recognise that the case now put by the Gouros parties was not then put by Messrs Lianos, Gouros and Kypreos and, as I noted above, they there relied on the evidence of Mr Antonakos that treated the 13 Chapters as including the Eight Incorporations. However, it seems to me that the case now put should have been raised in Lianos 2019, if it was to be put, and the status of the Eight Incorporations as chapters of AHEPA NSW was in any event squarely raised and addressed when those entities sought to be heard in the appeal and was determined in Lianos CA 4.

Mr Pritchard also submits, in reply, that there is no relevant oppression or unfairness to the Defendants even if the issues are re-litigated, where the Defendants made no prior stay application; “no material burden or additional cost and expense” is apparent in re-litigating the issue; and the issue is ready and able to be dealt with on a final basis. Mr Pritchard also submits, by bare assertion, that there is no adverse impact of that re-litigation upon the principles of finality of judicial determination and public confidence in the administration of justice; and that:

I do not accept this submission. First, the fact that AHEPA NSW did not seek a stay of the proceedings does not assist the Gouros parties, where there were numerous additional issues in these proceedings until they narrowed to the three remaining issues in the course of the hearing. Until the other issues were resolved, a stay application would have had little or no prospect of success where the proceedings would go to hearing on the same evidence in respect of those other issues, although they might have been determined in part by reference to principles of abuse of process. Second, it seems to me that a party has a proper expectation of the finality of matters determined by final hearings, particularly at the appellate level, and suffers a real loss if that expectation is frustrated. Third, it seems to me that the principles of finality and public confidence would be undermined by the approach the Gouros parties here adopt, a fortiori where its consequence would be that a single judge at first instance would, in effect, reverse the orders made by a unanimous Court of Appeal in Lianos CA 4 and the express basis on which they were made, as to the question whether the 13 Chapters include the Eight Incorporations. I address the wider balancing issue arising here in the analysis below.

Returning now to the applicable principles, the case law indicates that an abuse of process can be established even if an issue estoppel or res judicata would not here be established where there is a significant overlap, but not an identical equivalence, between the plaintiffs who bring these proceedings and those who brought the earlier proceedings that culminated in the decisions in Lianos CA 1 and Lianos CA 4. In State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 81-423 (“Stenhouse”) at 64,089, Giles CJ Comm D identified several matters as relevant to determining whether a proceeding is an abuse of process on the re-litigation ground, observing that:

These considerations have also been cited as relevant to determinations of abuse of process on the re-litigation ground in, inter alia, Commissioner of State Revenue v Mondous (2018) 55 VR 643; [2018] VSCA 185 (“Mondous”) at [116], 1 v Shad Legal Services Pty Ltd [2021] NSWCA 258 at [43] (“Hana”) and Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 at [495].

In Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110, Handley JA noted (at [26]) the scope of principles of issue estoppel as stated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531–532:

In deciding whether a party who had been unsuccessful in a claim for property damage could then bring a person injury claim, Handley JA pointed to common features of the earlier and later cases, involving the same factual allegations and common solicitors acting for the plaintiff in the two claims and held (at [50]) that:

Mr Corsaro refers to the summary of the principles by which a collateral attack on an earlier decision is an abuse of process, as summarised by Morritt VC in Secretary of State for Trade and Industry v Bairsdow [2004] Ch 1 at [39] and approved by Bryson JA in Cleary v Jeans (2006) 65 NSWLR 355; [2006] NSWCA 9 at [45], where Morritt VC held that:

In Ann Street Mezzanine Pty Ltd (in liq) v Beck (2009) 175 FCR 532; [2009] FCA 333 (“Ann Street”) at [33]-[34], Finkelstein J also observed that:

Those paragraphs were cited with approval in Tyne (Trustee) v UBS AG (No 2) (2017) 341 ALR 415; [2017] FCAFC 5 (“Tyne”) at [85] and again in Lianos CA 4 at [23]. It seems to me that, here, the other members of AHEPA NSW aligned with Messrs Lianos and Gouros can fairly be said to have had a distinct interest in the matters addressed at first instance in Lianos 2019 and on appeal in Lianos CA 1 and Lianos CA 4, to have stood by while those matters were determined, and now seek to take advantage of the fact that a representative order was not sought or made in Lianos 2019 or the subsequent decisions of the Court of Appeal so as to bind members in the same interest as Messrs Lianos and Gouros by the outcome of those proceedings.

Mr Pritchard also refers to the Court of Appeal’s decision in O’Shane, where Beazley P observed (at [105]) that:

The President also there referred to Stenhouse and observed (at [106]) that that case:

I have also referred above to the President’s observation (at [111]) that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution, and that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that that onus is a heavy one.

In Re HIH Insurance Ltd (in liq), De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1; [2014] NSWSC 774 (“HIH”) at [59], also cited in Lianos CA 4 at [23], Brereton J in turn approached a similar issue by reference to principles of Anshun estoppel, observing that:

Mr Pritchard submitted (T165, T172) that the approach taken by Brereton J in HIH had not been accepted by the Court of Appeal in Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 (“Ekes”), which had distinguished between Anshun estoppel on the one hand and abuse of process on the other. Even if Brereton J was incorrect in characterising the matters to which he refers as a sub-species of Anshun estoppel, it seems to me that the matters to which he referred are still relevant to identifying whether an abuse of process exists in a particular case. I return to the application of those matters in this case below.

Mr Pritchard also draws (T168) attention to the three forms of estoppel that may result from a final judgment in an adversarial proceeding, as recognised by the plurality in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (“Tomlinson”) at [22]ff. Mr Pritchard also refers (T169) to the majority’s observations in Tomlinson (at [25]-[26]) that:

Mr Pritchard also refers (T169) to the plurality’s explanation of the concept of privity in respect of an estoppel (at [40]) as follows:

In Mondous, McLeish JA (Niall JA relevantly agreeing, and McDonald AJ agreeing) referred to Tomlinson and observed (at [114]-[115]) that:

Mr Pritchard also refers to Hana, where the Court of Appeal held that a Statement of Claim was an abuse of process where it was premised on a factual issue which was resolved adversely to the applicant in earlier proceedings and the findings contended for in that Statement of Claim were directly inconsistent with, and amount to a collateral challenge to the correctness of, the Court of Appeal’s finding on the ultimate issue in those earlier proceedings. He emphasises the observations of Payne JA in Hana (at [43]) that:

I pause to note, by reference to the matters arising in Hana, that the present proceedings involve an overlap of parties and witnesses with the proceedings in Lianos 2019, Lianos CA 1 and Lianos CA 4, rather than exactly the same parties. However, it seems to me that the claim now put by the Gouros parties is premised on the proposition that the Eight Incorporations are not chapters of AHEPA NSW, where the evidence on which they relied in support of the Originating Process in Lianos 2019, which was also before the Court of Appeal in Lianos CA 1 and Lianos CA 4, proceeded on the contrary basis and where the Court of Appeal explained the orders that it made in Lianos CA 4 on the contrary basis. To that extent, the findings now sought by the Gouros parties are inconsistent with, and amount to a collateral challenge to, the orders made by the Court of Appeal in Lianos CA 4, as construed by reference to the explanation which the Court of Appeal had given of the basis for those orders.

The Court of Appeal also provided a full summary of these principles in Lianos CA 4 at [20]ff as follows:

I am unable to grant the relief sought by the Gouros parties in respect of this claim, where I am comfortably satisfied that that relief is sought in abuse of process.

First, as I noted above, it seems to me that any contention that the Eight Incorporations were not chapters of AHEPA NSW, by reason of their history or their incorporated status, was a matter that could have and should have been raised by Messrs Lianos and Gouros in Lianos 2019 and in Lianos CA 4, where the identity of the chapters of AHEPA NSW could not be determined without determining that contention, if it was to be put. The matters that the Gouros parties now raise, had they been put in Lianos 2019 and been correct, would have been a complete answer to the relief sought by AHEPA NSW in that case, since they would have the consequence that the members of the Eight Incorporations who had voted at the general meeting in 2018 were not entitled to do so. The case now put by the Gouros parties was not then put by Messrs Lianos, Gouros and Kypreos and, as I noted above, they there relied on the evidence of Mr Antonakos that treated the 13 Chapters as including the Eight Incorporations. It is not apparent that any evidence led in this proceeding could not have been led in Lianos 2019, from which appeals were determined in Lianos CA 1 and Lianos CA 4.

Second, it seems to me that the members of AHEPA NSW in the same faction as Messrs Lianos and Gouros were sufficiently identified with them that it was unreasonable for them to stand by and allow the earlier proceedings to be determined on that basis without intervening, or a representative order being made so they would be bound by the result of those proceedings. That factor has particular weight given the complexity of the earlier proceedings and the multiplication of litigation concerning AHEPA NSW.

Third, the status of the Eight Incorporations as chapters of AHEPA NSW was in any event squarely raised and addressed when those entities sought to be heard in Lianos CA 4. The identification of the chapters that formed part of AHEPA NSW was plainly an important issue in Lianos CA 4, with real significance for the respondents including Messrs Lianos and Gouros; the Eight Incorporations which had intervened in the Court of Appeal and been permitted to reopen the judgment delivered in Lianos CA 1; AHEPA NSW; and those of AHEPA NSW’s members who would be excluded if the Eight Incorporations were not chapters of AHEPA NSW. The question whether the Eight Incorporations were chapters of AHEPA NSW was also essential to their standing to be heard in Lianos CA 4, since they put their standing to be heard on the basis that they were chapters of AHEPA NSW and not strangers to it. Messrs Lianos and Gouros there contested the Eight Incorporations’ standing to be heard in the appeal on the basis that the Eight Incorporations were not individual members of AHEPA NSW, and not on the basis that they were not chapters of AHEPA NSW by reason of their history or incorporated status, or that their members (or financial members) were not members (or financial members) of AHEPA NSW. Messrs Lianos and Gouros and the Eight Incorporations there had and took the opportunity to litigate that issue, and the Court of Appeal made declarations that determined that issue, and explained the basis on which they did so including that the Eight Incorporations were chapters of AHEPA NSW, the proposition that the Gouros parties now seek to contradict in this proceeding.

Fourth, there seems to be a substantial adverse impact on AHEPA NSW and the Eight Incorporations and on the administration of justice from a re-litigation of the issue in these proceedings, where no attempt is made to justify it beyond the fact that the Gouros parties, two of which were party to the earlier proceedings and three more of which gave evidence in them, apparently disagree with the declaration made by the Court of Appeal in Lianos CA 4 (as properly construed) and the basis on which it was made, and that adverse impact is exacerbated by the long history of litigation between the two factions within AHEPA NSW. It seems to me that the balance of justice plainly favours finality here, and the more so where each earlier judgment has not quelled the disputes between those factions, but merely served as the starting point for the next dispute between them.

Pausing here, I am satisfied that it is an abuse of process for the Gouros parties to reagitate the correctness of the declaration made in Lianos CA 4 (as properly construed) and the basis of that declaration, so far as it impacts on membership requirements for AHEPA NSW in respect of members of the Eight Incorporations, and in doing so to invite me to accept some parts of the Court of Appeal’s judgments in Lianos CA 1 and Lianos CA 4, disregard or reject other parts of those judgments and then reach the opposite conclusion to the Court of Appeal as to whether the Eight Incorporations are chapters of AHEPA NSW and their members (and financial members) are members (and financial members) of AHEPA NSW, where there is a substantial overlap between the parties and persons involved in Lianos 2019 and in the Court of Appeal in Lianos CA 1 and Lianos CA 4 and the parties to these proceedings.

Fifth, the abuse of process in this respect extends to a dispute as to whether the members of the Eight Incorporations can be financial members of AHEPA NSW, where there is no relevant distinction between the question whether the members of the Eight Incorporations are members of AHEPA NSW and whether they can be financial members of AHEPA NSW. The Gouros parties did not contend that, and I can see no basis for a contention that, the concept of a “financial member of the unincorporated association” within the meaning of rule 3 of the 2018 Rules could be read inconsistently with the concepts of “member of the unincorporated association” and “unincorporated association” in that rule. As I have noted above, the Court of Appeal made its declarations in Lianos CA 4 on the basis that the 13 Chapters included the Eight Incorporations and that the members of AHEPA NSW included the members of those chapters, and the consistent use of the term “unincorporated association” has the necessary consequence that financial members of the Eight Incorporations are also financial members of AHEPA NSW.

Sixth and finally, I proceed on the basis that there exists a discretion whether to apply the principle of abuse of process here, although there is an open question as to that matter in respect of issue estoppel: O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258; Young v Annis-Brown t/as Lincoln Smith & Co [2011] NSWSC 890 at [12]. In my view, that discretion should be exercised to decline to permit re-litigation, in this case, of whether the 13 Chapters include the Eight Incorporations and its implications for their members (and financial members), where that matter was addressed by the Court of Appeal in making the declaration made in Lianos CA 4, given the extent of overlap in the underlying facts, the issues raised, the time and costs which have already been devoted to agitating those issues, and the public interest in promoting the finality of judgments and avoiding the parties and the community devoting further resources to the relitigation of matters which have been the subject of earlier proceedings and the appeals: Young v Annis-Brown t/as Lincoln Smith & Co at [16].

I am also unable to grant relief to the Gouros parties in respect of this claim, where that relief is directed to the exclusion of individual members of the Eight Incorporations who have not been joined as party to these proceedings and who would not have been appropriately bound by appointing AHEPA NSW to represent them, for the reasons I set out in my ex tempore judgment declining to make such an order, to which I return below.

In the course of this hearing, the Gouros parties sought an order that AHEPA NSW:

I declined to make an order in that form, for the reasons set out in an earlier ex tempore judgment, where I observed that:

I also there noted the possibility of an alternative form of representative order, namely that a member of each of the Eight Incorporations be appointed to represent the interest of all members of that incorporated chapter. That approach would at least have allowed one member of each of the chapters whose members the Gouros parties seek to exclude from AHEPA NSW to address the particular history of that chapter and the circumstances of its members, by evidence and submissions, in a manner that AHEPA NSW had not done, possibly subject to the need to provide for the costs incurred by those representative members. As Mr Pritchard accepted in closing submissions, the Gouros parties did not take up the possibility of a representative order in that form (T203).

Turning now to the applicable case law, in News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 (“Super League case”) the Full Court of the Federal Court observed (at 298) that “[a]n order which directly affects a third person’s rights against or liabilities to a party should not be made unless that person is also joined as a party”. The Full Court observed (at 298-299) that the relevant test:

In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]–[132], the High Court referred to the decision of the Full Court of the Federal Court in the Super League case and held that an order with a direct effect on the legal rights of another person, in that case the interests of a person claiming an interest in land which would be deprived of that person’s rights if indefeasible proprietary rights were created in favour of a party to the litigation, should not be made without that person being heard.

In Lianos CA 4 at [24], Emmett AJA in turn observed that:

I also should not reach the findings for which the Gouros parties contend as to this issue, where the individual members of the Eight Incorporations would be adversely affected by those findings and they were not joined as a party to the proceedings, and I held that it was not appropriate to make an order that AHEPA NSW (as distinct from, for example, a member of each of the Eight Incorporations) represent them in the proceedings.

The Gouros parties seek relief in the form of several declarations as to eligibility for membership of AHEPA NSW. The Court may, of course, make a declaration of right under s 75 of the Supreme Court Act 1970 (NSW) where, inter alia, the making of a declaration has practical utility. However, in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307; [1974] HCA 18 (“Neeta”), Barwick CJ and Jacobs J observed that a declaration should not be made where the consequences that flow from it may leave other issues between the parties undetermined and no other relief is sought, or where the suggested declaration is merely an anterior step to inevitable future litigation. That principle is not controversial, although it should not be applied too rigidly: see the cases cited in J D Heydon et al, Meagher, Gummow and Lehane's Equity, Doctrines and Remedies (LexisNexis, 5th ed, 2015) at [19-305].

First, the Gouros parties seek a declaration (3FAS [1]) that, for a person to be a “financial member of the unincorporated association” within the meaning of rule 3(1) of the 2018 Rules, that person needs to be a financial member of one of the chapters of the unincorporated association known as AHEPA Australia based in New South Wales. I will not make this declaration, where it would be inconsistent with the declarations made by the Court of Appeal in Lianos CA 4 on the basis that the 13 Chapters include the Eight Incorporations, and its consequences for the eligibility of members of the Eight Incorporations for membership of AHEPA NSW, and financial members of the Eight Incorporations for financial membership of AHEPA NSW, in a manner that I have found amounts to an abuse of process. Second, if this declaration had any effect, it would adversely affect the rights of financial members of the Eight Incorporations, by requiring AHEPA NSW to act in accordance with that declaration in respect of those persons’ membership rights, where they are not party to the proceedings and have not had an opportunity to be heard and an order that AHEPA NSW represent them in respect of that claim was not made. On that basis, this declaration should not be made, consistent with the authorities to which I referred above.

Second, the Gouros parties seek a declaration (3FAS [2]) that the chapters of AHEPA Australia based in New South Wales are seven unincorporated associations and such other chapters of AHEPA Australia based in New South Wales which are established from time-to-time. I will not make this declaration, where it seeks a result that would be inconsistent with the declarations made by the Court of Appeal in Lianos CA 4 on the basis that the 13 Chapters include the Eight Incorporations in a manner that I have found amounts to an abuse of process.

Third, the Gouros parties seek a declaration (3FAS (3(a)] that none of the Eight Incorporations is a chapter of AHEPA Australia based in New South Wales. I will not make that declaration, for the same reason that I will not make the second declaration that they seek. The Gouros parties also seek a declaration (3FAS (3(b)] that none of the financial members of the Eight Incorporations is entitled to be a financial member of AHEPA NSW within the meaning of rule 3(1) of the 2018 Rules. I will also not make that declaration, for the reason noted above and because it seeks to determine the rights of financial members of the Eight Incorporations who have not been joined as party to the proceedings and where an order that AHEPA NSW represent those members in respect of that claim was not made.

It is common ground (2FASC [A24]-[A25], Defence [24]-[25]) that rule 13(1) of the 2018 Rules provides that the “Committee of Management” is the governing body of AHEPA NSW and that rule 15(1) of the 2018 Rules provides that the Committee of Management is to be elected from specified “office bearers or members of the unincorporated association”, including the “Grand President”, the “District President” and a nominated member from “each chapter of the unincorporated association”. It is also common ground (2FASC [A26], Defence [26]) that rule 15(2) of the 2018 Rules provides that the duly elected “Grand President of the unincorporated association” is automatically appointed as the President of AHEPA NSW and the duly elected “District President of the unincorporated association” is automatically appointed as the Vice-President of AHEPA NSW.

The Gouros parties plead (2FASC [A27]) that, on its proper construction, the expression “unincorporated association” as used in the phrase “office bearers or members of the unincorporated association” in rule 15(1) of the 2018 Rules and as used in rule 15(2) of the 2018 Rules means AHEPA Australia operating in New South Wales, relying on the decisions of the Court of Appeal in Lianos CA 1 at [134], [136]-[137], [139]-[143] and Lianos CA 4 at [49]. I have referred to the relevant paragraphs of those decisions above. The Gouros parties also plead (2FASC [A28]) that Part V, cl 1(a) of the 2010 Constitution of AHEPA Australia provides, relevantly, that within any State the State Lodge and, where existing, the District Lodge are the highest executive bodies of AHEPA Australia in each State and are directly responsible to the National Lodge. The Defendants deny (Defence [27]-[28]) these contentions.

The Gouros parties then contend (2FASC [A29] that there exists in NSW a State Lodge which, prior to the adoption by AHEPA Australia of the 2010 Constitution and at the time of establishment of AHEPA NSW, was known as the “Grand Lodge” and which has been so called since on or about 12 October 2012 (“NSW Grand Lodge”) and a District Lodge (“NSW District Lodge”). The Defendants respond (Defence [29]) that there is a Grand Lodge of New South Wales, which is a part of AHEPA NSW; there was a District Lodge of New South Wales, but that was dissolved in 2015; and otherwise deny the paragraph. The Gouros parties also plead (2FASC [A30]-[A31]) and the Defendants deny (Defence [30]-[31]) that the officers of the NSW Grand Lodge include, relevantly, a State President who, prior to the adoption by AHEPA Australia of the 2010 Constitution and at the time of establishment of AHEPA NSW Inc, was known as the Grand President and the officers of the NSW District Lodge include, and have included at all material times from the establishment of AHEPA NSW, relevantly, a District President.

On this basis, the Gouros parties plead (2FAS [A32]) and the Defendants deny (Defence [32]) that:

The Gouros parties in turn point (2FASC [A33], [A35]) to the different position put by AHEPA NSW in correspondence and in its Defence [32], [35]) as to these matters. I accept that there is a genuine dispute as to these matters. By reason of these matters, the Gouros parties contend and the Defendants deny (2FASC [A36], Defence [36]) that:

The Court of Appeal addressed matters relevant to this issue in Lianos CA 4, where Emmett AJA referred (at [55]) to the consideration of rule 15 of the 2018 Rules in Lianos CA 1 and noted that:

His Honour then went on to observe (at [56]-[62]) that:

It seems to me that this question does not give rise to an issue of abuse of process or any lack of necessary parties to the proceedings, as it was not previously determined by Rees J in Lianos 2019 or by the Court of Appeal in Lianos CA 1 or Lianos CA 4, although its resolution is largely consequential on matters that were there determined. Its determination would not result in the exclusion of members of AHEPA NSW who are not party to the proceedings from membership of financial membership of AHEPA NSW.

Mr Pritchard submits that, consistent with the findings in Lianos CA 4, the reference to “unincorporated association” in the 2018 Rules, including rules 15(1) and 15(2), refers to the operations of the unincorporated association, AHEPA Australia, in NSW. He also submits that the positions of “Grand President” and “District President” referred to in rule 15(1) of the 2018 Rules are the Grand President of the Grand Lodge of NSW and the District Lodge of NSW, which are bodies in the structure of AHEPA Australia, the unincorporated association. He also points to clause 20 of the 1990 Constitution of AHEPA Australia which provided, relevantly, for the “Grand President” to be a member of each State Grand Lodge, and clause 40 of the 1990 Constitution which provided that members of the Order of the Daughters of Penelope “may form a District Lodge in their State”, and that the District Lodge shall be “governed by the same rules as those governing the Grand Lodges”. Mr Pritchard also submits that there exist divisions within AHEPA Australia in NSW known as the Grand Lodge of NSW and the District Lodge of NSW. I have referred above to the evidence that, although those bodies ceased to exist from 2015 until 2019, they have now come back into existence, albeit in a manner that appears not to be authorised by the constitution of AHEPA Australia Ltd.

Mr Corsaro responds that the Grand Lodge and District Lodge no longer exist, and refers to documents relating to the creation of a National Lodge within AHEPA Australia at the 2015 National Convention (Ex J1, 4940ff) and the subsequent creation of AHEPA Australia Ltd (Ex J1, 5402ff) which he contends operated in place of rather than in parallel to AHEPA Australia, the unincorporated association. I have referred above to the evidence that the Grand Lodge and District Lodge were purportedly reinstated by AHEPA Australia Ltd from 2019.

Although Emmett AJA’s analysis of this issue in Lianos CA 4 plainly has a degree of complexity, it seems to me that the Court of Appeal there relevantly found that the reference to “unincorporated association” in the 2018 Rules was to AHEPA Australia, or at least the chapters of AHEPA Australia, subject to the inclusion of the Eight Incorporations within that concept which I have addressed above. I do not take a different view. I accept that other organisations now exist within AHEPA NSW which could provide functional substitutes for the Grand Lodge and the District Lodge of AHEPA NSW, and that, apart from its endemic internal conflicts, it would likely be open to AHEPA NSW to amend the 2018 Rules to refer to those other bodies. However, absent an amendment of the 2018 Rules, it seems to me that AHEPA Australia’s practice between 2015 and 2019 and the existence of other bodies within AHEPA NSW does not displace the conclusion that the reference to “unincorporated association” in rule 15 of the 2018 Rules remains a reference to AHEPA Australia or at least its chapters, again subject to the position as to the Eight Incorporations which I have addressed above, as distinct from either AHEPA Australia Ltd (the incorporated body) on the one hand or the other constituent bodies of AHEPA NSW on the other. It is not to the point, so far as the construction of that rule is concerned, that there are corresponding bodies in the structure of AHEPA NSW or that the parties have previously conducted themselves on a different basis.

The Gouros parties seek a declaration (3FAS [4]) in respect of this issue that, for the purposes of rule 15(1) of the 2018 Rules, the expression “Grand President” means the President from time-to-time of the NSW State Lodge, as described by reference to the AHEPA Australia Constitution; the expression “District President” means the President from time-to-time of the NSW District Lodge, as described by reference to the AHEPA Australia Constitution. I have referred above to the principles applicable to the making of declarations of right, and I allowed the parties an opportunity to make further submissions, after the conclusion of the oral hearing, as to the questions whether:

Only the Gouros parties took up the opportunity to make further submissions as to those matters. Mr Pritchard again referred to the procedural history of the proceedings and the narrowing of the issues that remain to be determined. He submits that the parties now seek to have the Court determine remaining issues “in the context of their continuing future mutual dealings” and that:

Mr Pritchard also refers to my observation in Stewart v Spicer Thoroughbreds Pty Ltd [2022] NSWSC 558 at [56], by reference to Neeta that the Court should not generally make a declaration, even if it has jurisdiction to do so, unless it is satisfied both that the declaration sought is appropriate and that it has sufficient practical utility or where it would merely be prefatory to other relief. I accept that case could be distinguished, so far as the declaration there in issue related to criminal conduct, although the decision in Neeta to which it referred is of wider application.

Mr Pritchard submits that the declaration sought by the Gouros parties will “quell the ultimate dispute between the parties” as to the Committee of Management, because it will determine who is entitled to sit on the Committee of Management as, relevantly, the “Grand President” and the “District President”. I will return shortly to the question whether the determination of those questions would likely instead be a precursor to further dispute as to how the Committee of Management would conduct itself if that declaration was made. Mr Pritchard also raised the possibility of the Court allowing the parties an opportunity, after judgment, to address the issue further in the light of the Court’s reasons, including seeking further relief if appropriate. It seems to me that the history of continuing dispute between the parties tends against prolonging the proceedings in that way.

Mr Pritchard also submits that declining to make the orders sought would:

While I have accepted the Gouros parties’ construction of these parts of the rule, I am not persuaded that I should make the declaration that they seek. Adopting the approach indicated by the High Court’s decision in Neeta outlined above, that declaration would leave other issues between the parties undetermined, where no operative relief is sought as to this matter. The suggested declaration is merely an anterior step to likely further disputes if the Grand President of the NSW State Lodge or the President of the NSW District Lodge associated with AHEPA Australia then seek to preside over, or decide to convene or not convene, meetings of AHEPA NSW’s Committee of Management as chair or deputy chair, where they plainly would not have the confidence of the majority of members of that committee. The Gouros parties did not seek specific performance of any obligation of AHEPA NSW or its members to comply with rule 15(1) of the 2018 Rules and, had such an order been sought, I would likely have declined it on discretionary grounds, where it would be inconsistent with the practice of the parties before AHEPA Australia’s reversal of its earlier approach in 2019 and productive of the further dispute I noted above. It does not seem to me that the Gouros parties can be in a stronger position where they seek a declaration but do not seek substantive relief than if they had sought such relief. I will therefore not make the declaration sought by the Gouros Parties as to this issue.

The Gouros parties also contend (2FASC [A37]) and the Defendants deny (Defence [37]) that, on a proper construction of rule 15(1) of the 2018 Rules, the “chapters of the unincorporated association” which are permitted to nominate a member for membership of the Committee of Management comprise one of the chapters of AHEPA Australia operating in NSW, and they again rely on the judgments of the Court of Appeal in Lianos CA 1 at [134], [136]-[137], [139]-[143] and Lianos CA 4 at [49]. They plead (2FASC [38]) and the Defendants deny (Defence [38]) that, by reason of the matters pleaded at 2FASC [A13]-[A19] and [A27], for the purposes of rule 15(1) of the 2018 Rules, the “chapters of the unincorporated association” which are permitted to nominate a member for membership of the Committee of Management comprise the AHEPA Australia chapters and any other chapter of AHEPA Australia based in NSW which is established in the future. I do not accept this proposition, where it is consequential on the contentions put by the Gouros parties which I have held to be an abuse of process above. The Gouros parties also point (2FASC [A39]-[A40]) to a contrary position put by the Eight Incorporations and plead that none of the nominees from the membership of the Eight Incorporations is a member of AHEPA NSW’s Committee of Management for the purposes of rule 15(1) of the 2018 Rules. The Defendants largely deny that claim (Defence [39]-[40]) and also plead (Defence [42]) a wider defence of issue estoppel, res judicata and abuse of process.

This contention is again inconsistent with the declarations made in Lianos CA 4, construed by reference to Mr Antonakos’ evidence on which they relied in Lianos 2019 and which was put before the Court of Appeal and the basis on which the Court of Appeal explained those declarations, namely that the 13 Chapters included the Eight Incorporations. The Gouros parties cannot establish this matter where its premise is advanced in abuse of process for the reasons noted above.

The Gouros parties also seek a declaration (3FAS [4(c)], in respect of this issue, that the expression “each chapter of the unincorporated association” under rule 15(1) of the 2018 Rules means each of the AHEPA Australia chapters. I will not make this declaration, where it also seeks to controvert the result reached by the Court of Appeal in Lianos CA 4, again in a manner that amounts to an abuse of process for the reasons noted above. It also should not be made where the members of the Eight Incorporations have not been joined and an order was not made that AHEPA NSW represent them individually in the proceedings, for the reasons noted above.

The Gouros parties seek an order (3FAS [5]) under s 175 of the Corporations Act that AHEPA NSW rectify the register of members of AHEPA NSW so as to give effect to these orders by including all persons who are financial members of each of the AHEPA Australia Chapters as notified by each of the AHEPA Australia Chapters; and excluding any other person.

I outlined the scope of s 175 of the Corporations Act in Re Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69 at [47] as follows:

I will not make an order in the form sought by the Gouros parties. First, I have not made the declarations to which this order seeks to give effect. Second, this relief seeks to exclude, by amendment of the register, numerous persons from membership of AHEPA NSW where they presently are or claim to be members of AHEPA NSW. That relief has a direct effect on the rights of those individual members of AHEPA NSW, or at least those who fall within the Eight Incorporations who are now sought to be excluded from membership, and not only an indirect or consequential effect, just as the rectification of a company’s share register to extinguish the shares of a shareholder has a direct impact on that shareholder’s rights. Only the Eight Incorporations through whom those persons are or claim to be members of AHEPA NSW were joined as defendants in the proceedings and the individuals who would be affected by that relief were not, and as I noted above, I declined to make a representative order that AHEPA NSW represent those members where their individual rights as members were at risk. I also should not make orders adverse to the individual members of AHEPA NSW where they are necessary parties to the proceedings and were not joined to them and have not had an opportunity to be heard as to those orders.

The Gouros parties seek several orders (3FAS [6]-[9]) relating to a reference to determine those persons who should be excluded as members of AHEPA NSW by removing their names from the member register. I will not make that order where the basis for an order rectifying the register has not been established. I would also not make that order where, after eight or more earlier proceedings relating to disputes within AHEPA NSW and the hearing of these proceedings over several days, an order of that kind would unreasonably prolong the interminable disputes between the parties and should not be made on that basis.

Both parties briefly addressed this question in submissions. It is not apparent that it arises in respect of the pleaded claims or the relief sought and it is not necessary to decide it.

My preliminary view is that there should be no order as to the costs of the proceedings up to and including 20 September 2023 when both parties were addressing wider issues which were subsequently displaced by events, including AHEPA NSW’s determination not to challenge the termination of its lease over the Bexley Bowling Club by Bayside Council, to rescind the purported expulsion of Mr Gouros from membership of AHEPA NSW and its commitment to address membership applications in an agreed manner. My preliminary view is that the Gouros parties should pay the costs of and incidental to the proceedings on and from that date, which were largely directed to the pursuit of the claims on which they have failed. However, I will hear the parties as to costs if they seek to be heard.

I am also inclined to think that, given the multiplicity of litigation between the parties, the fact that several of the Plaintiffs have been involved in previous and substantially overlapping claims against AHEPA NSW, and the issues as to abuse of process that I have addressed above, I should also order that the several Plaintiffs in these proceedings not commence or continue any proceedings in any Court or Tribunal against any of the Defendants (other than by a claim in the nature of a defence, cross-claim or cross-summons or an appeal from this judgment) which arise from the same or similar facts as these proceedings without the leave of a Judge of this Court, unless and until the Plaintiffs have paid the costs of this proceeding, consistent with orders made in Idoport v National Australia Bank Ltd [2006] NSWCA 202 at [29], Pi v Zhou [2016] NSWCA 148, especially at [23], Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 at [57]–[61] and Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 at [26]ff. I will, of course, also hear the parties as to that matter.

I direct the parties to bring in orders that give effect to this judgment, including as to costs, within 14 days and, in the event of any disagreement between them, their respective short minutes of order and short submissions as to the differences between them.