Melbourne University Student Union Inc v National Union of Students Inc
[2002] FCA 493
•10 APRIL 2002
FEDERAL COURT OF AUSTRALIA
Melbourne University Student Union Inc v National Union of Students Inc
[2002] FCA 493
PRACTICE AND PROCEDURE – interlocutory application pursuant to s 49 of the Associations Incorporation Act 1991 (ACT) – injunction sought restraining National Union of Students from convening Special State Conference of Victorian Branch – injunction sought restraining union from electing officers of Victorian State Branch – whether serious question to be tried – whether conduct by union beyond power – whether breach of constitution and regulations of union – balance of convenience – prejudice to applicants if injunctions refused – where elected officers may subsequently be held to have been invalidly appointed – whether elected officers might implement policies or make decisions which were irreversible – prejudice to respondents if injunctions granted – where presently no functioning Victorian State Branch of union.
Associations Incorporation Act 1991 (ACT): s 49
MELBOURNE UNIVERSITY STUDENT UNION INCORPORATED & ORS v NATIONAL UNION OF STUDENTS INCORPORATED & ORS
V 37 of 2002GOLDBERG J
10 APRIL 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 37 of 2002
BETWEEN:
MELBOURNE UNIVERSITY STUDENT UNION INCORPORATED and
OTHERS (according to the attached Schedule)
ApplicantsAND:
NATIONAL UNION OF STUDENTS INCORPORATED
and
OTHERS (according to the attached Schedule)Respondents
JUDGE:
GOLDBERG J
DATE OF ORDER:
10 APRIL 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The motion filed on 4 April 2002 is dismissed.
2. The costs of the motion are reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 37 of 2002
BETWEEN:
MELBOURNE UNIVERSITY STUDENT UNION INCORPORATED and
OTHERS (according to the attached Schedule)
ApplicantsAND:
NATIONAL UNION OF STUDENTS INCORPORATED
and
OTHERS (according to the attached Schedule)Respondents
JUDGE:
GOLDBERG J
DATE:
10 APRIL 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The first applicant, Melbourne University Student Union Inc (“MUSU”), is a member organisation of the first respondent, National Union of Students Inc (“NUS”), and is entitled under the Constitution and Regulations of NUS to elect seven delegates to meetings of NUS. In the week beginning Monday, 10 September 2001 MUSU conducted its annual elections for a number of positions in the Union including delegates to NUS. The second to eighth applicants were elected as delegates of MUSU to NUS on 25 September 2001. NUS is incorporated under the provisions of the Associations Incorporation Act 1991 (ACT).
Pursuant to reg 18.8 of the Regulations of NUS each delegate holds office from the beginning of the Annual State Conference following their election to the beginning of the following Annual State Conference.
Issues in relation to the holding of the election arose prior and subsequent to the holding of the election. A decision to postpone the MUSU elections from the week beginning 10 September 2001 to the week beginning 1 October 2001 was determined by the Magistrates’ Court at Melbourne to be ultra vires the Constitution of MUSU and null and void and, as a result, the date of the election was restored to the week beginning 10 September 2001. Subsequent to the election, a number of people lodged appeals against the result of the election with the MUSU Electoral Tribunal. On 27 November 2001, the Electoral Tribunal published its decision. The effect of that decision, in the events which occurred, was not to disturb the election of the delegates to NUS.
Each of the second to eighth applicants received confirmation from the Victorian Branch of NUS that they had been elected as delegates to the NUS State and National Conferences and notification that the Victorian Branch Conference would be held on 1 December 2001.
Issues arose thereafter in relation to the accreditation of the second to eighth applicants as delegates to the Annual State Conference. The Accreditation Committee met on 1 December 2001 and decided that the second to eighth applicants should be accredited as the MUSU delegates. The Annual State Conference on 1 December 2001 was postponed to 8 December 2001 due to a lack of a quorum and was further postponed to 19 January 2002, again, for lack of a quorum.
The National Conference for NUS was fixed for 9 December 2001. The second to eighth applicants received notice of the Conference. Five of the seven MUSU delegates attended the National Conference and the remaining two attended by proxy. The MUSU paid the registration fees required to be paid in respect of their delegates.
On the evening of 9 December 2001, the NUS Executive met to consider the Accreditation Committee’s decision in respect of the accreditation of the MUSU delegates. The Executive resolved that the issue of the accreditation of MUSU delegates should be determined by the National Conference. On 10 December 2001, the National Conference resolved that the delegates whose accreditation was in question not be allowed to vote on their own accreditation and that they only be allowed speaking rights. The National Conference further resolved that the accreditation of MUSU be reviewed and that it be accredited with the delegates elected for Melbourne University for the 2000 Conference as the delegates for the 2001 Conference. It was resolved that four persons who had been delegates to the 2000 Conference be accredited.
The applicants challenge these resolutions of the National Conference of NUS as being beyond power. They contend that the accreditation of the second to eighth applicants should be recognised and that the second to fifth respondents should not be recognised as the accredited delegates. The NUS refused to set aside the decision of the National Conference on 10 December 2001.
The Annual Victorian State Conference of NUS was called for 19 January 2002. On 18 January 2002, the applicants commenced this proceeding seeking injunctive relief restraining NUS from preventing the second to eighth applicants from exercising their rights as delegates to the Victorian State Conference to be held on the following day. The applicants also sought injunctive relief restraining the second to fifth respondents from purporting to act as delegates of MUSU at that Conference.
The jurisdictional basis for the application was expressed to be s 49 of the Associations Incorporation Act and s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1993 (ACT). Section 49 of the Associations Incorporation Act provides:
“A member of an incorporated association who is deprived by a decision of the association of a right conferred on the member, as a member, by the rules of the association, may apply to the court for an order to vary or set aside the decision.”
An application for urgent interlocutory injunctive relief came on for hearing before Heerey J on 18 January 2002. His Honour concluded that having regard to the delay in commencing the proceeding, he did not consider it reasonable or fair to force the respondents into a contested application and he dismissed the application.
On 8 March 2002, the applicants filed an amended application which, in substance, sought declarations that:
·the resolutions of the National Executive of NUS on 9 and 10 December 2001 were void and of no effect;
·the second to eighth applicants, rather than the second to fifth respondents, were the delegates entitled to participate in the National and Victorian State Conferences of NUS for the year commencing 1 December 2001.
The amended application also sought injunctions restraining:
·NUS from convening a State Conference of the Victorian Branch of the NUS with the attendance and participation of the second to fifth respondents as delegates of MUSU rather than the second to eighth applicants;
·the second to fifth respondents from attending and participating in the Annual Victorian State Conference of NUS as delegates of MUSU.
On the same day, the applicants filed a statement of claim in which they set out the basis for the allegations that the resolutions passed on 9 and 10 December 2001 were ultra vires and in breach of the Constitution, Regulations and by‑laws of NUS.
A directions hearing was held before Weinberg J on 20 March 2002 when his Honour gave directions for the filing of a defence by the respondents by 15 April 2002 and the conduct of a mediation by 24 May 2002. Weinberg J also said that he would give consideration to having the matter transferred to the Federal Magistrates’ Court if an early hearing could be arranged.
On 28 March 2002, the second applicant received a letter by facsimile transmission from NUS under the signature of the national president. The letter enclosed a notice of another meeting of the Victorian State Conference of NUS to be held on 13 April 2002. The letter asked the second applicant to inform the delegates of the meeting. The notice referred to the meeting and provided that:
“This is to pass Policy for the State Branch for 2002, hear reports of 2001 State Office‑bearers and elect new State Office‑bearers for 2002.”
The NUS has refused to give an undertaking sought by the applicants to postpone the election of State Branch officers for the year 2002 until determination of the present proceeding.
According to the applicants, delegates from MUSU hold 113 votes out of a maximum of approximately 477 votes that can be cast at Special State Conferences of the Victorian Branch of NUS. The National President of NUS believed that the maximum number of votes which might be cast at the conference was 438 votes. For present purposes nothing turns on these different views.
The applicants contended that given the size of the vote to be exercised by MUSU delegates, what the applicants called the “control” of the MUSU delegation is critical to the election of officers of the Victorian Branch of NUS. The applicants further contended that should the State Conference proceed on 13 April 2002, the delegates to NUS elected by MUSU, namely the second to eighth applicants, will have no democratic input into the affairs of NUS in Victoria for the year 2002.
On 4 April 2002, the applicants filed a motion seeking interlocutory orders restraining NUS from:
·convening the Special State Conference of the Victorian Branch of NUS on 13 April 2002, or at all, pending the determination of the proceeding;
·conducting an election for officers of the Victorian Branch of NUS at that Conference, or at all, pending the determination of the proceeding.
At the hearing, the applicants submitted that the dis‑accreditation of the second to eighth applicants and their replacement by the second to fifth respondents was ultra vires the National Conference, in breach of the Constitution and Regulations of NUS and a denial of natural justice to the applicants. Accordingly, it was submitted that there was a serious question be to tried on these issues.
The respondents accepted that there was a serious question to be tried as to whether there was conduct by NUS which was beyond power and whether there had been a breach of the Constitution and Regulations of NUS. Counsel for the respondents foreshadowed that a defence would be filed challenging the jurisdiction of the Court based upon s 49 of the Associations Incorporations Act and alleging that everything done at the National Conference in 2001 was within power, either express or implied. However, the respondents submitted that the balance of convenience was against the grant of the interlocutory relief sought.
The applicants submitted that the balance of convenience was in favour of restraining the election of office‑bearers of the Victorian Branch of NUS at the Victorian Branch State Conference as, once elected, they would be able to make decisions and implement policies which later could not be unscrambled. The applicants submitted that the MUSU and its delegates (the second to eighth applicants) wished to participate in the election of the officers of the Victorian Branch and take part in its policy direction. The applicants’ written submissions included the following:
“It may prove politically and legally impossible to unscramble the after effects of an election held now. Campaigns will be started, money will be spent and commitments will be made. Legitimately elected Officers may not be able to overturn the acts of their predecessors.”
It was also submitted that questions of compensation to State officers elected on a disputed vote and later removed by court order might need to be addressed and that a claim for damages could arise against those responsible for the election.
The applicants also submitted, as the evidence disclosed, that at the present time, and until the election of officers to the Victorian State Branch of NUS, the affairs of the Victorian State Branch would be conducted by an executive committee consisting of the president of each NUS student union in Victoria.
The applicants put their submissions on the basis that there was “vast prejudice”, but they were not able to point to any particular aspect of conduct which might be carried out, or policy which might be formulated, by the Victorian State Conference which could have an irreversible or irremediable consequence for, and effect upon, the Victorian State Branch and its constituent members. No specific controversial issue of policy or proposed course of action was identified by the applicants which might occur or be brought into existence. Although the applicants asserted that the MUSU had expended time and resources in formulating policies and ideas to present to the State Conference of NUS in 2002, they did not submit that in due course these policies could not be pursued, notwithstanding what might occur at the State Conference on 13 April 2002. Although the issue of student concession cards was raised, that issue was not developed to the extent to which any prejudice was suggested in relation to that policy if no injunctions were granted.
Although the applicants submitted that because of the size of the vote exercised by the MUSU delegates, what they called “control” of the MUSU delegation was critical to the election of the officers in Victorian Branch so that the MUSU delegates effectively controlled the balance of power in any State branch election, there was no evidence before the Court that the outcome might be different on any particular issue relating to the election of an officer of the State Branch or aspect of policy if the second to fifth respondents voted the MUSU delegates’ votes rather than the second to eighth applicants.
The respondents submitted that tangible elements of prejudice could be identified if the interlocutory injunctions sought were granted. There was evidence from the National President of NUS that at the present time there is no functioning State branch of NUS in Victoria. Although some of the duties of the Victorian State Branch office holders were being performed by National office‑bearers, this was creating an onerous and time consuming burden with the result that some State branch activities were not being performed. There was also an issue in relation to the access of National office bearers to funds allocated to State branches.
The National President of NUS set out in an affidavit a number of matters which demonstrated that the inability of NUS to have a State functioning branch with State elected officers was having an effect on the ability of NUS to carry out a number of its required functions. I refer, by way of example, to Victorian participation in NUS national day of action on 13 May 2002 and the monitoring of activities of governments, universities and the media in relation to education. These matters tended to move the balance of convenience against the grant of interlocutory relief, particularly where no specific policy issue was identified as being in jeopardy if no injunctive relief was granted.
The respondents submitted that if NUS member organisations were dissatisfied with NUS services, they could choose to disaffiliate from NUS by a referendum of their students. The National President expressed the belief that if the situation of not having a functioning State branch continued, NUS was at great risk of members disaffiliating. However, I am not prepared to act upon such a generalised statement. It is of little value in considering the balance of convenience unless there can be demonstrated that there is a particular move to disaffiliate contemplated or apprehended.
Nevertheless, I consider it important for the continued operation of the Victorian State Branch that there be a functioning State Executive which has responsibility under S16 of the Schedule to the NUS Regulations:
(a) to manage the State branch, including:
(i) setting the budget for the State branch;
(ii) regularly monitoring the finances of the State branch;
(iii) employing staff for the State branch on behalf of NUS; and
(iv)authorising the publication of material for the State branch on behalf of NUS;
subject to National Executive; and
(b) to implement the policy of NUS and State policy in that State.
The applicants submitted that until the elections for the State Executive were held, the State branch could be managed by the Presidents of the member organisations, as being effectively the State Executive: S14 and S15 of the Schedule to the NUS Regulations. I do not consider that S14 and S15 have the effect that until the State President and the other State officers are elected, the Presidents of member organisations constitute an effective and properly constituted State Executive.
Taking all these matters into account, I have reached the conclusion that the balance of convenience is against the grant of the interlocutory relief sought. I accept that this may have the result that delegates who ultimately may be held to have been invalidly appointed will participate in the election of branch officers and the formulation of policy. I take into account the fact to which I have referred, that there is no particular issue or policy identified which may not be capable of remedy, change or reversal in the future if the second to eighth applicants are found to be the proper MUSU delegates.
Although MUSU, by its elected delegates, wishes to have a significant say in the election of State officers and the formulation of State policy, it does not appear that that control may not ultimately be able to be exercised after the conclusion of the proceeding if it is held that NUS has acted ultra vires in relation to any particular policy issue.
Further, although the applicants said, and the respondents did not deny, that the delegates from MUSU, whoever they may be, held the balance of power in relation to the votes cast at the State Conference and that the exercise of those votes would determine the outcome of the election, there was no evidence that there would be any different outcome on any election for a particular office or in the determination of any policy issue or aspect of conduct of the affairs of the State branch if the second to fifth respondents voted rather than the second to eighth applicants.
The application for interlocutory relief will therefore be refused and the motion filed on 4 April 2002 dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.
Associate:
Dated: 19 April 2002
Counsel for the Applicants: A P P Rodbard-Bean Solicitor for the Applicants: B2B Lawyers Counsel for the Respondents: P Rozen Solicitor for the Respondents: Maurice Blackburn Cashman Date of Hearing: 9 April 2002 Date of Judgment: 10 April 2002
SCHEDULE OF PARTIES
MELBOURNE UNIVERSITY STUDENT UNION INCORPORATED First Applicant
DARREN KENNETH RAY Second Applicant
ALEXANDRIA HICKS Third Applicant
PETER MARCZENKO Fourth Applicant
ANDREA DAVID Fifth Applicant
BRAD TUTT Sixth Applicant
ANITA CASTANHO Seventh Applicant
ARI SHARP Eighth Applicant
and
NATIONAL UNION OF STUDENTS INCORPORATED First Respondent
XANTHE WHITTICHE Second Respondent
JODY HUNTER Third Respondent
BEN CASS Fourth Respondent
STEVE LANCHASHIRE Fifth Respondent
0
0
0