Raue v Morris
[2013] NSWSC 1498
•10 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: Raue v Morris [2013] NSWSC 1498 Hearing dates: 10 October 2013 Decision date: 10 October 2013 Jurisdiction: Common Law Before: Button J Decision: On the plaintiff's undertaking for the period up to and including 4pm on Friday 25 October 2013 not to exercise his powers as a Director of the Board of the University of Sydney Union ("the Union"), the Court orders that:
(1) The defendants be restrained until 4pm on Friday 25 October 2013 from proceeding in their capacity as members of the Board of the Union to entertain or determine the motion prepared by the first, second and third defendants that the plaintiff be found guilty of serious misconduct and cease to hold office immediately.
(2) The summons be listed for directions or further orders before a Registrar of this Court on Wednesday 16 October 2013.
(3) The costs of the motion be costs in the cause.
Catchwords: PRACTICE AND PROCEDURE - application for interlocutory injunction - special resolution to remove director from board of student union - prima facie case established - whether balance of convenience favours granting - whether damages would be a sufficient remedy - whether other discretionary matters prevent granting - existence of other appeal mechanisms relevant but not determinative - undertaking as to damages not determinative - undertaking by applicant not to exercise powers - application granted for two weeks Cases Cited: Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618Category: Interlocutory applications Parties: Thomas Raue (P)
Hannah Morris (D1)
Sophie Stanton (D2)
John Harding-Easson (D3)
Karen Chau (D4)
Kade Denton (D5)
Evelyn Radunz (D6)
Robert Magyar (D7)
Tania Waniganayaka (D8)
Bebe Ahna D'Souza (D9)
Timothy Matthews (D10)
Astha Rajvanshi (D11)
Emma McDonald (D12)
Simone Whetton (D13)Representation: Counsel:
L Doust (P)
G A Sirtes SC (D1-8, 10-13)
Solicitors:
Kemp Strang (D1-8, 10-13)
File Number(s): 2011/303821
EX TEMPORE Judgment
Before the Court is a summons and notice of motion of the plaintiff. Although various forms of relief are sought, all that is sought and in dispute today is order 6 in the notice of motion, which is seeking an injunction to restrain the defendants, pending further order, from proceeding in their capacity as members of the Board of the University of Sydney Union to entertain a particular motion that the plaintiff be found guilty of serious misconduct and that the plaintiff cease to hold office immediately. To be clear, counsel for the plaintiff is seeking an interlocutory injunction only, in what are said to be urgent circumstances to which I shall return in a moment.
Background
To state the background of the matter with great succinctness, the plaintiff is the Vice-President of the University of Sydney Union, to which I shall subsequently refer in in this judgment as "the Union". It is alleged that he behaved improperly by leaking confidential information to the student newspaper Honi Soit with regard to something a police officer supposedly said in the hearing of a member of staff in relation to the relationship between the police and the University authorities. That is all in the context of a number of demonstrations on campus, one of which is said to have led to injuries being inflicted on some persons.
It is proposed that the Board of the Union will consider a motion tomorrow as to whether the plaintiff should be found guilty of serious misconduct and cease to hold office immediately, and therefore there is some urgency about the matter.
Submissions
Counsel for the plaintiff submits that the order sought should be made. With regard to the four well-known factors pertaining to the making of an interlocutory injunction she made the following submissions.
First, there is a prima facie case that, in adopting the proposed motion, the Board would be acting beyond the powers ascribed to it by the Constitution of the Union, to the extent that reliance would be placed by the Board on a particular regulation. The submission is that the regulation is, in truth, as a matter of construction, invalid.
Separately from that, it is submitted that there is a prima facie case that the material in question was not and could not have been, in truth, confidential and, therefore, there could not have been misconduct, serious or otherwise, in the plaintiff revealing it.
Secondly, it is submitted that the balance of convenience favours making an order that expires in two weeks or even one. It is said that there is no great urgency about the Board determining the particular motion against the plaintiff, especially in light of the undertaking that I am informed he would be prepared to give that he, the plaintiff, would not exercise any of his official duties during the pendency of that injunction for the period of one or two weeks.
Emphasis is placed upon the fact that the plaintiff has given the usual undertaking as to damages that is provided in cases of injunctions.
As to the aspect of the balance of convenience with regard to seeking to repair the position of the plaintiff if the order were not made by me today and the plaintiff were wrongfully dismissed tomorrow, it is implicitly submitted that that will be time-consuming, difficult, and, if the dismissal were eventually publicly rescinded, the damage to the plaintiff's reputation would be irremedial. It is also submitted that that process could take quite some time, and in the meantime the plaintiff could well have finished or substantially completed his studies.
Thirdly, with regard to a connected topic, counsel for the plaintiff submits that damages in the circumstances that I have described would not be an adequate remedy.
Fourthly, and finally, it is submitted that there is no discretionary consideration, including but not limited to any behaviour on the part of the plaintiff, that tells against the order being made in his favour.
In short, counsel for the plaintiff submits that there is a triable issue; that the balance of convenience favours the order being made; that damages would be an inadequate remedy; that there are no countervailing discretionary matters; that there would be a period of no more than two weeks before the matter, if necessary, could be further revisited; and, finally, that the plaintiff would give undertakings to protect the position of the defendants and the Union generally.
Senior counsel for the defendants (save for the ninth) submitted, first, that if the regulation in question is not empowered by clause 9.2(e) of the Constitution (a position that he did not, of course, concede) nevertheless it is certainly empowered by the very broad power in clause 9.2(a). In short, his position was that the question of construction is, in truth, unarguable.
Secondly, senior counsel emphasised that the plaintiff has an explicit right of appeal to the University Senate and that right argues against restraint at this stage.
Thirdly, with regard to the second substantive declaration that underpins the relief sought by the plaintiff, he submitted that this Court would be slow indeed to entertain a prospective as opposed to retrospective declaration.
Fourthly, the undisputed behaviour of the plaintiff itself constitutes material upon which one would deny him relief on discretionary grounds.
Fifthly, the undertaking as to damages is, in truth, in the circumstances of the plaintiff's lack of funds, of little or no value.
Sixthly, the behaviour of the plaintiff in seemingly involving the media in a public campaign tells against the relief being granted, as a matter of discretion.
Determination
The purpose of an interlocutory injunction is to preserve the status quo; specifically, the legal and equitable rights of the parties pending a final determination of their rights.
The Court must determine whether preserving the status quo is justified on the basis of four considerations.
First, the probability of the ultimate success of the plaintiff's case. In short, the plaintiff must demonstrate the existence of a serious question to be tried and a prima facie case. A sufficient likelihood of success is adequate for that to be made out: see Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57.
Secondly, whether the balance of convenience favours the grant of an interlocutory injunction, considering in particular the hardship that would be visited upon the parties as a result of the granting of such an order.
Thirdly, the adequacy of damages as an alternate remedy to an injunction.
Fourthly and finally, other discretionary factors.
In short, in my opinion the Court must consider first the nature of the rights asserted by the moving party and, secondly, the practical consequences likely to flow from the interlocutory orders sought: see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 and Australian Broadcasting Corporation v O'Neil.
There is force in the submissions of senior counsel for the defendants. But although it may well be that the plaintiff's approach to the question of construction has its difficulties, merely because there are difficulties does not mean that it is not arguable.
Furthermore, whilst it is true that there is an explicit appeal right afforded to the plaintiff, the nub of his complaint is that the whole sub-structure of the regulations upon which that appeal right is founded is invalid.
Whilst I accept that prospective declarations are rare indeed, all that is before me at this stage is an application for an interlocutory injunction, not the final determination of the merits of the substantive matter.
As to the appropriateness or otherwise of the behaviour of the plaintiff and the contention that that in itself would militate against relief being granted, the fact is that the appropriateness of his behaviour is the issue in dispute, and I respectfully consider that there is a degree of circularity in seeking to use its asserted inappropriateness to deny relief.
It is true that the undertaking as to damages may be of little practical value. On the other hand, as senior counsel for the defendant himself said, it is hard to see how the Union could suffer damage as a result of the orders sought today. In any event, I do not consider that impecuniosity that on the part of the plaintiff should be the determinant with regard to this matter.
Finally, with regard to the question of the media, on the material placed before me at this interlocutory stage, I am not persuaded that there is any matter that tells against him. It may be that the plaintiff is an activist; so be it.
While the prospects of the plaintiff's case are far from certain in the sense of being guaranteed success in the ultimate, I do not consider that it can be said that his case is entirely devoid of merit. In short, I consider that at least a prima facie case can be identified.
Furthermore, I do not consider that the defendants will be unreasonably prejudiced as a result of the grant of a short interlocutory injunction.
I do not consider that it would be appropriate for the plaintiff to be confined in his remedy to damages, as I do not consider that damages would be an adequate remedy in this incident.
Despite the fact that the matter has regrettably been brought before the Court on very short notice, I do not consider there are any discretionary factors that tell against granting a short interlocutory injunction.
For those reasons, I consider that preserving the status quo is justified and it is appropriate to grant an interlocutory injunction.
However, I consider the length of the injunction granted by me today should be no more than two weeks. That is particularly so in light of the position in which the defendants have been placed with regard to evidence and others matters by the lateness of this application.
Furthermore, I consider that the matter should be listed for directions before the Registrar on Tuesday next. Apart from anything else, the issues identified by counsel for the plaintiff seem to me to be within a very short compass. It could well be that the matter could be given a final hearing date very promptly.
Finally, I consider there should be discussions between counsel for the plaintiff and the solicitor for the defendant with regard to the precise form of undertaking to be given by the plaintiff, in accordance with the concerns expressed by senior counsel for the defendants during oral argument. Not only that, I would be assisted as to any order as to costs other than that the costs of today should be costs in the cause.
I will stand the matter down for a period, perhaps until 5.30pm to permit those discussions to take place. If they could be agreed I would be very much obliged by draft orders to give effect to my judgment. They need not be typed, of course.
Orders
On the plaintiff's undertaking for the period up to and including 4pm on Friday 25 October 2013 not to exercise his powers as a Director of the Board of the University of Sydney Union ("the Union"), the Court orders that:
(1) The defendants be restrained until 4pm on Friday 25 October 2013 from proceeding in their capacity as members of the Board of the Union to entertain or determine the motion prepared by the first, second and third defendants that the plaintiff be found guilty of serious misconduct and cease to hold office immediately.
(2) The summons be listed for directions or further orders before a Registrar of this Court on Wednesday 16 October 2013.
(3) The costs of the motion be costs in the cause.
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Decision last updated: 11 October 2013
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