National Sorry Day Committee Incorporated v Helen Moran
[2013] ACTSC 28
NATIONAL SORRY DAY COMMITTEE INCORPORATED v HELEN MORAN & ors
[2013] ACTSC 28 (13 February 2013)
EQUITY – Incorporated Association – Application for Injunction restraining respondents from certain acts – Dispute over membership of executive committee – No evidence as to invalidity of annual general meeting electing current members – Serious issue to be tried exists – Whether balance of convenience favours granting the injunction – Respondents no opportunity to present their case – Action required to break impasse – Balance of convenience favours granting injunction – Application granted
EX TEMPORE JUDGMENT
No. SC 46 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 13 February 2013
IN THE SUPREME COURT OF THE )
) No. SC 46 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:NATIONAL SORRY DAY COMMITTEE INCORPORATED
Applicant
AND: HELEN MORAN
First Respondent
MARTHA WATTS
Second RespondentGEORGE DAVIES
Third RespondentSANDRA KITCHING
Fourth RespondentMARGARET EVANS
Fifth RespondentJYOTSANA C
Sixth Respondent
ORDER
Judge: Burns J
Date: 13 February 2013
Place: Canberra
THE COURT ORDERS THAT:
Until further order of the Court, the defendants are prohibited from interfering with the administration of the plaintiff association by Michael West, Maryanne Allan, Lisa-Marie Jones, Julie Shelley, Brian Marshall, Mark Baumgart and Elizabeth Rice as the executive committee of the association.
Any of the defendants in possession of any property of the association including keys to the association’s office at 2/134 Bunda Street Canberra, and keys to the association’s letterbox are to return it forthwith by delivering it to Minter Ellison Lawyers 25 National Circuit Forrest.
The defendants, jointly and severally, are restrained from representing themselves as members of the association if they are not currently a member, as solely determined by the membership register maintained by the secretary of the association.
The defendants are restrained from using association letterhead without the express consent of the executive officer or the executive committee.
The defendants are restrained from making representations to any provider of goods or services to the association in respect of such provision.
The current application, matter number 46 of 2013, and the winding up application, matter 452 of 2012, are both to be listed before Burns J for directions at 9.30 am on 12 March.
I have before me an originating application dated 11 February 2013 in which, as I understand it, ultimately the plaintiff incorporated association will seek a declaration as to the constitution of the executive committee of that association.
It is clear that at the present time there is a dispute between two different groups who claim to be the appropriately elected committee of the association. I have before me affidavit material, and in particular an affidavit sworn by Siani Jones on 24 December 2012, in which she deposes to the fact that the persons set out in paragraph (1) on page 2 of the Originating Application are the executive committee of the National Sorry Day Committee by reason of an annual general meeting which was held in late 2012.
Mr Markham, who appears on behalf of the defendants to the current proceedings, who are of course the rival executive committee, has put to me from the Bar table his client’s position that the purported annual general meeting held late in 2012 was in fact invalid.
I have of course no evidence before me to that effect. At the present time the only evidence that I have is that an annual general meeting was held and that pursuant to an election held at the annual general meeting the persons that I have referred to as set out in paragraph (1) of the originating application were elected as the executive committee of the association.
Clearly enough, Mr Markham’s clients have not yet had an opportunity to put their side of the case. However, it is abundantly clear from all of the material that something needs to be done in order to break the current impasse. It is clear that there is a real issue to be tried between the parties and in my opinion the balance of convenience lies in making orders by way of interlocutory injunctive orders.
I order that until further order of the Court, the defendants be prohibited from interfering with the administration of the plaintiff association by the executive committee of the association, composed of Michael West, Maryanne Allan, Lisa-Marie Jones, Julie Shelley, Brian Marshall, Mark Baumgart and Elizabeth Rice.
I further order that any of the defendants in possession of any property of the association including keys to the association’s office at 2/134 Bunda Street, Canberra, and keys to the association’s letterbox return it forthwith by delivering it to Minter Ellison Lawyers, 25 National Circuit Forrest.
I will further order that the defendants, jointly and severally:
a. be restrained from representing themselves as members of the association if they are not currently a member, as solely determined by the membership register maintained by the secretary of the association;
b. be restrained from using association letterhead without the express consent of the executive officer or the executive committee, and;
c. be restrained from making representations to any provider of goods or services to the association in respect of such provision.
Now, clearly, we need to have a return date to deal with these issues. The winding up application, as I understand it, has been adjourned to 12 March.
The current application, that is matter number 46 of 2013, and the winding up application, matter 452 of 2012, will both be listed before me for directions at 9.30 am on 12 March 2013.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 25 February 2013
Counsel for the Applicant: Mr B Webster
Solicitor for the Applicant: Bede Webster
Counsel for the Respondent: Mr R Markham
Solicitor for the Respondent: Minter Ellison
Date of Hearing: 13 February 2013
Date of Judgment: 13 February 2013
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