Ballarat & Queen's Old Grammarians' Assocation Inc v Ballarat & Queen's Anglican Grammar School

[2001] VSC 457

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8261 of 2001

BALLARAT & QUEEN'S OLD GRAMMARIANS' ASSOCIATION INC.	Plaintiff
v.
BALLARAT & QUEEN'S ANGLICAN GRAMMAR SCHOOL (ACN 005 091 805)	Defendant

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 NOVEMBER 2001
DATE OF JUDGMENT:	21 NOVEMBER 2001
CASE MAY BE CITED AS:	BALLARAT & QUEEN'S OLD GRAMMARIANS' ASSOCIATION INC. v. BALLARAT & QUEEN'S ANGLICAN GRAMMAR SCHOOL
MEDIUM NEUTRAL CITATION:	[2001] VSC 457

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CATCHWORDS:      Mandatory injunction – No high degree of assurance that plaintiff will be successful at trial – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. M. Loughnan	Garland Hawthorn Brahe
For the Defendant	Mr. T. Walker	Freehills

HIS HONOUR:

1           The present proceeding involves a dispute between the plaintiff, the Ballarat & Queen's Old Grammarians'  Association Inc., and the defendant, the Ballarat & Queen's Anglican Grammar School. 

2           I now have before me a summons filed in the proceeding by the plaintiff whereby the plaintiff seeks the following injunctive relief: 

1.The defendant immediately deliver up to the plaintiff all documentation and/or other materials storing or containing information, in its possession which discloses in relation to the members of the plaintiff, their full name, address and date of entry. 

2.   The defendant immediately deliver up to the plaintiff a list in relation to the members of the plaintiff which sets forth each members full name, address and date of entry. 

3.   The defendant within 7 days of the making of the order of the Court account to the plaintiff as to the sums received by it on behalf of the plaintiff as life membership fees since 30 June 1999. 

4.   The defendant within 7 days of the making of the order of the Court pay to the plaintiff the amount of the fees received by it on behalf of the plaintiff for life membership fees.

3           It will be seen that the orders sought by the plaintiff are mandatory in nature and if made would have the effect of giving the plaintiff the final relief it seeks in the proceeding.

4           It is well established that such injunctions will only be granted where there is a high degree of assurance that the plaintiff will be successful at trial.

5           Overnight I have considered the affidavits filed in the court on behalf of the parties and the exhibits to those affidavits.

6           No useful purpose will be served by reciting that material in my reasons for judgment, even if I had the time available to me to do so.

7           Having considered this matter, I am not persuaded that it would be appropriate to make the orders now sought by the plaintiff.  I say that for the following reasons:

1.In my opinion, it is highly doubtful that there is or ever was an obligation upon the school to provide to the association details of the members of the plaintiff even if it was in a position to do so.  The fact that the school may have been in the habit of providing details of former students to the association in the past can give rise to no legal obligation on it to continue doing so, nor does the fact that in the past notice of the annual general meeting of the association has been included in the school magazine entitle the association to details of former students who may be members of the association.

8           Indeed, it is not without interest that one notes that by clause 4 of the association's constitution it is provided that the secretary shall keep and maintain a register of members in which shall be entered the full name, address and date of entry of the name of each member and the register shall be available for inspection by members at the address of the public officer.

9           Finally in this regard, the Headmaster of the school, in paragraph 19 of his affidavit of 19 November, has sworn: 

"The school does not maintain a database of members of the plaintiff and has never done so.  The school does maintain a record of the names and addresses of former students but does not know which of these former students are or wish to be members of the plaintiff.  This record was not created and is not maintained on behalf of or for the benefit of the plaintiff though it has been used by the school to assist the plaintiff at times".

10         There is no reason why I should not accept his evidence in that regard. 

2.   The association, through its president and public officer, has sworn that at the end of each school year the school has collected, on behalf of the association, a lifetime subscription fee of $50 from each pupil leaving the school and that until 30 June 1999 has forwarded the amount so collected to the treasurer of the association.

11         In his affidavit the Headmaster has sworn that the school does not collect a lifetime subscription fee from each pupil leaving the school but that until 1999 the school made a gratuitous payment to the association of $25 for each student leaving the school. 

12         It is true that the school enrolment forms for the years 1997 and 1998 each contain the following item:     

"Enrolment Fee 

The Enrolment Fee is $100 per child (non-refundable).  This Fee includes Life Membership of the Old Grammarians Association."

13         However, since 1999 the enrolment form has made no provision for membership of any association of former students.

14         There is no suggestion, and certainly no evidence, that prior to 1999 there was some form of contract or agreement between the parties requiring the school to collect fees for the association, nor any undertaking or other assurance given by the school to the association that it would do so.

15         In that situation I am not persuaded that the school is or has been under any obligation to collect lifetime subscriptions from former students and remit them to the association.  Nor am I persuaded that the association has any legal entitlement to require payment to it by the school of the moneys it now seeks.

16         The plaintiff's summons filed in the court on 15 November 2001 is dismissed.  I order that the plaintiff pay the defendant's costs of the summons.

MS LOUGHNAN:  If Your Honour pleases.

MR WALKER:  Your Honour, I have an application in relation to costs.

HIS HONOUR:  Yes.

MR WALKER:  The application is for a special order regarding indemnity costs as and from 12 November when a letter of offer in the form of a court bank offer, if you like, repeated the original offer for a mail out of the notice of the AGM - that was first made on 7 November, repeated on the 9th.  I seek costs on an indemnity basis only from the 12th because it was in that letter, that is to say the Freehills' letter of the 12th, and I will take Your Honour to the correspondence in a moment, but it was only from that letter, from the 12th in which it was stated that refusal to accept the offer would be relied upon as a basis to subsequently claiming indemnity costs in the event that the plaintiff was not more successful.

HIS HONOUR:  Yes.

MR WALKER:  May I hand up to Your Honour a bundle of letters, there are five in number.  I have a copy for my learned friend.

HIS HONOUR:  You might like to take a seat while I just read them.

MR WALKER:  Yes, Your Honour.

HIS HONOUR:  Yes, I will hear what you wish to say in opposition to that, Ms Loughnan.

MS LOUGHNAN:  Your Honour has decided this matter on the evidence presently available to the court and that's appreciated by all the parties.  As this matter proceeds and discovery turns up, it may be that there will be another outcome in this proceeding.  My client didn't receive the material in opposition in this matter until, I think it was, about 6.30 on Monday night and it came on yesterday morning, Tuesday morning.  It had no time to really consider the material before being required to press on with the matter.

17         Your Honour, an order of this kind is made in only exceptional cases, in my submission, where there's high-handedness or some sort of moral turpitude involved.  There isn't, in my submission, in this case.  My client has made its application ingenuously and in the belief there is a relationship of agency between it and the defendant and in my submission costs should go the way Your Honour has ordered.

HIS HONOUR:  Yes.

MS LOUGHNAN:  If Your Honour pleases.

HIS HONOUR:  Thank you.

18         In my opinion, having read the correspondence handed to me by counsel for the defendant, that is the correspondence passing between the solicitors for the practitioners over the period from 7 November to 19 November, it is my opinion that there was no justification on the part of the plaintiff for pursuing what amounted to urgent interlocutory injunctive relief in this matter, certainly not since the date of the letter of 12 November.  In that situation I consider this is a case in which the defendant is entitled to an indemnity order in respect of its costs as and from 12 November and I so order.

MR WALKER:  I have a particular form of order, Your Honour, which follows the Full Court's decision in Re: Wilcox Ex parte Venture Industries.

HIS HONOUR:  Yes.

19         I will make the order in that form, namely, that the plaintiff pay the defendant's costs of and incidental to the plaintiff's application for an interlocutory injunction on a party/party basis save and to the extent that the plaintiff pay the defendant's cost of and incidental to the application for an interlocutory injunction from 12 November 2001 on the basis that such costs are to include all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that subject to such exceptions the defendant will be completely indemnified by the plaintiff for its costs of and incidental to the plaintiff's application for an interlocutory injunction incurred after 12 November 2001.

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