Melbourne University Student Union Inc v National Union of Students Inc

[2002] FCA 47

FEDERAL COURT OF AUSTRALIA

Melbourne University Student Union Inc v National Union of Students Inc
[2002] FCA 47

PRACTICE AND PROCEDURE – interlocutory injunction – application too late

MELBOURNE UNIVERSITY STUDENT UNION INC AND OTHERS V NATIONAL UNION OF STUDENTS INC AND OTHERS
V 37 OF 2002

HEEREY J
18 JANUARY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V37 OF 2002

BETWEEN:	MELBOURNE UNIVERSITY STUDENT UNION INC and OTHERS APPLICANT
AND:	NATIONAL UNION OF STUDENTS INC and OTHERS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	18 JANUARY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for an interlocutory injunction is dismissed.

2.        Costs be 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	V37 OF 2002

BETWEEN:	MELBOURNE UNIVERSITY STUDENT UNION INC and OTHERS APPLICANT
AND:	NATIONAL UNION OF STUDENTS INC and OTHERS RESPONDENT

JUDGE:	HEEREY J
DATE:	18 JANUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The second to eighth applicants were in September last year elected as delegates of the first applicant, the Melbourne University Student Union Inc, as that union's delegates to the first respondent, the National Union of Students Inc.  The election was attended by some controversy, including a contested hearing in the Magistrates’ Court and an application to an internal electoral tribunal. 

2. At the National Union Conference on 10 December 2001 it was resolved not to accept the second to eighth applicants but rather accept as delegates of the Melbourne Union delegates from the previous year.  They are the second to fifth respondents in the present application.

3. The applicants commenced this proceeding this morning seeking various relief and also interlocutory relief in the form of an injunction restraining the National Union from preventing the second to eighth applicants from exercising their rights as delegates in the National Union’s Annual Victorian State Conference to be held on 19 January, that is, tomorrow, and an injunction restraining the second to fifth respondents from purporting to act as delegates of the Melbourne Union at tomorrow’s conference or at all.

4. The preliminary question arises whether this Court should embark on the hearing of the interlocutory injunction application in light of the delay in bringing it forward.  I am not satisfied that the Court should take this course.  The second to eighth applicants formally took office on 1 January this year but it is reasonable to infer that they were well aware of the controversy which had existed since the National Conference some three weeks previously.  But they took no steps until solicitors on their behalf wrote a letter on 11 January complaining about the action of the National Union and seeking a written undertaking no later than 9 am on Tuesday, 15 January.  The letter stated:

   “Failing receipt of such an undertaking, we are instructed to seek declaratory relief in a Court of competent jurisdiction without further notice as a matter of  urgency.”

5. Notwithstanding that threat, no action was taken until approximately 11.30 this morning. 

6. From what I have seen of the affidavit material, it is likely that this dispute raises questions of the proper construction of the rules of the Melbourne Union and the National Union, but if the applicants are right and the meeting proceeds tomorrow, they will still have an argument that any decisions made at that meeting are invalid.  The applicants' material does not suggest that there is any specific threatened action which would cause irreversible harm to them.  All that is said is that officers will be elected and policy decisions will be made which will be “set in concrete”.  In most democratically elected bodies policies change from time to time, depending on the majority view of those who are elected.  There is no evidence advanced as to why that would not happen in the present case.  Nor is there any identification of the policies to which the applicants refer, still less any explanation why they would cause harm to the applicants or anybody else.

7. Having regard to the delay that has occurred I do not think it is reasonable or fair to force the respondents into a contested application.  Any delay to the meeting, which is prima facie lawful, would cause considerable inconvenience, and there does not seem to be any counterbalancing threat of harm which would justify that course. 

8. Counsel for the applicants put forward as an alternative that the election of office-bearers at the meeting tomorrow be postponed, but before that stage is reached I think there would still have to be a satisfactory explanation as to why the Court should intervene at all in light of the delay which has occurred.  For the reasons I have given, I am not satisfied that the Court should so intervene. 

9. The application for an interlocutory injunction is dismissed.  I will reserve costs. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             31 January 2002

Counsel for the Applicant:	Mr A Rodbard-Bean
Solicitor for the Applicant:	B2B Lawyers
Counsel for the Respondent:	Mr S J Moore
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	18 January 2002
Date of Judgment:	18 January 2002