Edith Cowan University Student Guild v Edith Cowan University
[2004] WASC 83
•3 MAY 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EDITH COWAN UNIVERSITY STUDENT GUILD -v- EDITH COWAN UNIVERSITY [2004] WASC 83
CORAM: MCKECHNIE J
HEARD: 3 MAY 2004
DELIVERED : 3 MAY 2004
FILE NO/S: CIV 1334 of 2004
BETWEEN: EDITH COWAN UNIVERSITY STUDENT GUILD
Plaintiff
AND
EDITH COWAN UNIVERSITY
Defendant
Catchwords:
Defamation - Plaintiff seeking mandatory injunction - Application of settled principle - Turns on own facts
Legislation:
Edith Cowan University Act 1984 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr G T Stubbs
Defendant: Ms F C E Davis
Solicitors:
Plaintiff: Dwyer Durack
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
Church of Scientology v Reader's Digest (1980) 1 NSWLR 344
Lovell v Lewandowski (1987) WAR 81
Case(s) also cited:
Nil
MCKECHNIE J:
Background
On 12 March 2004 Edith Cowan University ("ECU") sent an e‑mail to all staff, and a letter to all enrolled students. Under the heading "Amenities and Services Fee" the e‑mail and letter, in almost identical words, gave some general information and then said:
"The Student Guild is required to provide regular reports to the University on its financial position in general and on its expenditure of the fees in particular. The University has advised the Guild's administration of its financial accountability responsibilities in writing on several occasions. To date, the Guild has failed to provide any reports on how it has spent the fees. Council has given the Guild until 31 March 2004 to provide all outstanding quarterly reports from 2003."
It is the sentence I have highlighted which, on 17 March 2004, caused the ECU Student Guild ("the Guild") to file a writ claiming damages for defamation and also to seek an injunction of an interlocutory nature in the following terms:
"2.Until the conclusion of the trial in this action, the defendant be restrained and an injunction be granted against the defendant restraining it, its servants or agents, from making or repeating the following defamatory statements:
(a)That the Edith Cowan University Student Guild has failed to provide any reports on how it has spent the services and amenities fee it received in 2003.
(b)Any similar defamatory statements."
The application was adjourned and listed for a special appointment today. In an effort to justify their positions the parties have filed many, sometimes voluminous, affidavits, a custom I regret to say is not confined just to this action.
The principles relating to injunctions for defamation
The principles I apply are those set out in the Church of Scientology v Reader's Digest (1980) 1 NSWLR 344 at 349 at [10], and confirmed as the law in this State in Lovell v Lewandowski (1987) WAR 81.
I accept also that what in the end is required is a discretionary judgment in the particular circumstances: see Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153. The Guild's argument, in essence, is that the statement that no reports have been received is patently untrue and therefore there is and can be no viable defence of justification.
The legal framework for a services and amenities fee
It is necessary first to turn to the legal framework. Under the Edith Cowan University Act 1984 "Student Guild" is dealt with in Pt IX. As amended in 2002, s 41A deals with the "Amenities and services fee".
Section 41B is entitled, "Council to include detail in Statute." By subs (2) the fees colleted each year are to be allocated to broad categories of expenditure under an agreement between the Council and the Student Guild, and by subs 3:
"The Council shall prescribe, by statute, the measures by which the Student Guild is to account for the fees received, and those measures shall include ‑
(a)a requirement that the annual financial statements of the Student Guild are to be audited by an independent external auditor whose appointment requires Council approval; and
(b)a requirement for the Student Guild to provide a copy of each audited balance sheet, and an annual statement of the Student Guild's income and expenditure, to the Council."
The University has acted through University Statute ("Statute") No 29 but I should briefly make reference to Statute No 11 as well. Statute No 11 is entitled, "Student Guild" and deals with the keeping of accounts to which I will return shortly. Statute No 29 is headed "Interpretation". Paragraph 2 is "Amenities and Services Fee" and details the broad Categories of Amenities and Services are set out in cl 4(1).
As part of the scheme of arrangement, ECU and the Guild entered into a Fees Allocation Deed. The Deed was executed on 5 May 2003 on behalf of the Guild but not until 20 June 2003 by ECU. Under the Deed, by cl 2.1, ECU set out the broad categories which are consistent with Statute No 29 and assigned percentage points to all of those categories. I refer to two categories as an example:
"• (a) Representation and advocacy services, 20.30%
• (b) Health and welfare services, 16.50%."
I return to Statute No 11. Under cl 15 entitled "Accounts", the Guild Senate is required to cause proper accounts and records to be kept of all sums of money received and expended by or on behalf of the Guild and of income and expenditure and of the assets and liabilities of the Guild. Paragraphs (f) and (g) read:
"(f)The Guild shall provide a quarterly report on the amount, nature and timing of its expenditure of the fees paid to it pursuant to Statute 29 ‑ amenities and services fees to the Quality and Audit Committee of Council within 30 days of the end of each calendar quarter.
(g)The Guild shall provide a quarterly report on its financial position, including an unaudited balance sheet and statement of income and expenditure for the relevant quarter, to the Executive Director (Finance and Administration) within 30 days of the end of each calendar quarter, who may refer such reports to the Resources Committee of Council. "
It appears to be clear enough that what is required under Statute No 11 relevantly are two distinct quarterly reports: one under cl (15)(f) relates to the expenditure of the Amenities and Services Fee; and the other under cl (15)(g) is a report to a different person or body of ECU relating to the general financial position of the Guild.
The information given to ECU
The Guild submits that it provided two reports of relevance which it says constitutes the reports. The first are the financial statements for 1 December 2002 to 31 May 2003. This report was prepared by Newman Partners, accountants, and was provided to all Members of ECU Council on 19 February 2004. The second report on which the Guild relies is the contents of a CD‑ROM containing what the Guild President described as all financial data received by ECU on 3 October 2003. Although accepting that they may not be in the form required by ECU for its purposes, the Guild argues they are nevertheless reports. Statute 11, it is said, does not prescribe any particular form.
Resolution of the issues
I am not to be taken as finally deciding any issues in this case. This is an interlocutory application and it is not necessary for me to reach concluded views. However, I am obliged to consider to some degree the strengths of the defence of truth, because ECU argues that it can justify its statement in the e‑mail and letter that it has not been provided with any reports about the Services and Amenities Fee.
(a) The financial statements to 31 May 2003
I deal first with the financial statements to 31 May 2003 provided on 19 February 2004. These cannot relate to the allocation of Amenities and Services Fee under the 2003 Deed as they precede it. Furthermore, they are not, in the words of the Statute 11, cl (15)(f) - "a quarterly report on the amount, nature and timing of its expenditure of the fees paid to it pursuant to Statute 29".
It is difficult to ascertain the amount of fees paid by ECU to the Guild as an Amenities and Services Fee. An amount of $682,680 is shown as, "Gross receipts - ECU." However, note 1(d) to the accounts says:
"Amenities and Service fees.
Over the period covered by this report Edith Cowan University provided funds for the Guild to meet its obligations until expenditure of the funds provided from the Amenities and Service Fees were approved by University council."
So it is not even clear to me to what extent $682,680 actually constitutes the receipt of the Amenities and Services Fee. However, these may be a side issue because it is impossible relevantly to relate any item of expenditure to any of the broad categories of amenities and services set out in the Statute and in the Deed.
I therefore do not consider that these financial statements can be regarded as a financial report on the Amenities and Services Fees which was of course the report specifically referred to in the e‑mail and letter.
(b) The CD‑ROM data
I turn to consider the position of the information contained in the CD‑ROM. There is a dispute as why the CD‑ROM was provided to ECU but it is unnecessary for me to resolve this. It is no more than financial information. It is not in any sense a report. It does not identify the receipt of proceeds, nor does it identify any meaningful information as to how the fees have been expended in the provision of amenities and services.
To take just one example, the information provided in the CD‑ROM shows that an amount of $15,300 has been withdrawn as petty cash. There is no further accounting for this money or posting to an appropriate item of expenditure. There are indications within the draft minutes of the ECU Council and also in an e‑mail that the Guild President was aware of the problems with the lack of reporting by the Guild as to the expenditure of the Amenities and Services Fee and was endeavouring to overcome some of the problems.
For the purpose only of deciding whether to grant an interlocutory injunction, I must, as a minimum, be satisfied that there is no great prospect of a successful defence of justification or, as a corollary, that the Guild's case is strong. In my opinion a defence of justification has strong prospects of success. The two matters relied on by the Guild do not qualify as reports on the expenditure of fees.
I turn to the question of qualified privilege. Assuming the material to be defamatory, the defendant also raises as a defence qualified privilege. The Guild clearly has an arguable case that the publication, at least to some parties, is not the subject of privilege. However, I consider that ECU's contrary position is also fairly arguable. I would not grant an injunction on the grounds that the defence of qualified privilege is weak. It is a matter for trial.
The question of republication
In order for the Guild to succeed, it must show that there is a likelihood of repetition of the defamatory material. All the Guild can point to is a communication to a parliamentarian of some material and comments taken from discussion forums maintained electronically by ECU. On analysis, neither of these two matters establishes, to my mind, a republication of the allegedly defamatory matter. On the other hand, ECU, through a proper officer, Ms Harris, has sworn that it does not intend to republish the material. In my view, the lack of evidence of republication provides a further ground for refusing the injunction and indeed by itself would have been sufficient.
Finally, balancing the interests of free and open discussion against the interests of the Guild in protecting its reputation, I consider that there is no ground for an interlocutory injunction, much less circumstances of an exceptional nature. If the defamation is ultimately proved at trial, in my opinion, damages would be quite an adequate remedy.
Costs
The defendant has applied for indemnity costs. I would have to say that I think the discretion to grant indemnity costs is enlivened by what, with great respect, I regard as the hopelessness of the application in view particularly of Ms Harris's statement about intention and the fact that Miller J back on 19 March 2004 clearly put the plaintiff on notice when he said:
"But if there is no intention to further distribute the material, then it seems difficult to see how you would get injunctive relief."
The only thing that restrains me, however, from making an order for indemnity costs, is the fact that the plaintiff is a student guild. I think enough money has already been wasted on this action to date and I am reluctant to burden the Guild with further costs. I appreciate that might be seen in some quarters to be an injustice to ECU who may have otherwise established its entitlement for indemnity costs but an order for indemnity costs is discretionary and on balance I refuse to make such an order.
I will, however, make an order for costs. The orders will be the application is dismissed with costs.
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