University of Technology Sydney v Gerrard - [2001] NSWSC 368

No judgment structure available for this case.

CITATION: UTS v GERRARD [2001] NSWSC 368

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2200/01

HEARING DATE(S): 30/04/01

JUDGMENT DATE:
7 May 2001

PARTIES :

University of Technology Sydney - Plaintiff
Jessica Gerrard (and the persons whose names appear in Schedule 1 to Summons) - First toTwenty seventh Defendants

JUDGMENT OF: Barrett J

COUNSEL : Mr R.J. Weber - Plaintiff
Mr A.D. Lang - 1-3, 5, 6, 8-14, 17-19, 21-23, 25-27 Defendants
Fourth and Twentieth Defendants in person

SOLICITORS: Minter Ellison - Plaintiff
Slater & Gordon - Defendants

CATCHWORDS: VOLUNTARY ASSOCIATION - Whether election of council valid - Whether University has standing in relation to controversy concerning constitution of students' association - Justiciability of such controversy - Construction of provisions concerning termination of office after subsequent election of officers - Whether several persons may occupy one office - Whether Court will sanction single trustee where instrument requires several trustees - Principles upon which Court will appoint receiver of trust property in jeopardy - Need for other avenues of resolution to be further pursued first.

LEGISLATION CITED: University of Technology, Sydney Act 1989
Conveyancing Act 1919

CASES CITED: Forster v Jododex Pty Ltd (1972) 127 CLR 421
Ibeneweka v Egbuna [1964] 1 WLR 219 at 225
Clarke v Australian Labor Party [1999] SASC 365
Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828
Cameron v Hogan (1934) 51 CLR 358
Baldwin v Everingham [1993] QdR 10
Woodward v Sarsons (1875) LR 10 CP 743
Chanter v Blackwood (1904) 1 CLR 39
Ryan v South Sydney Junior Rugby League Club Ltd (1974) 3 ACLR 486
Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362
Re Khan [1947] QWN 41
Ditcher v Denison (1857) 11 Moore PC 325
Lonsdale v Beckett (1850) DeG & Sm 73
Re Ellison's Trust (1856) 2 Jur NS 62
Yunghanns v Candoora No 19 Pty Ltd (No 2) [2000] VSC 300
Martyniuk v King [2000] VSC 319
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 259
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
Cardile v LED Buildings Pty Ltd (1999) 198 CLR 380

DECISION: 1. Declare that at the election of the University of Technology Sydney Students' Association held in 2000, no persons were validly elected to the Student Representative Council of that Association; 2. Order that the Cross-Claim be dismissed; 3. Order that the remainder of the claims in the Amended Summons be stood over to 9.30 am on Monday, 14 May 2001 before Barrett J

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 7 MAY 2001

2200/2001 - UNIVERSITY OF TECHNOLOGY, SYDNEY v GERRARD & ORS

JUDGMENT

HIS HONOUR:
Introduction

1 The plaintiff, University of Technology, Sydney (“the University”), is a body corporate established by the University of Technology, Sydney Act 1989. In accordance with that Act, it provides higher educational facilities at three campuses in Sydney to some 26,000 students. Section 16(1)(j) of the Act empowers the Council of the University (which is its governing body) to impose fees, charges and fines. In exercise of that power, the Council imposes certain fees on students upon the footing that the fee so imposed on a particular student will be passed on by the University to the University of Technology Sydney Students’ Association (referred to hereafter as “the Association”) as that student’s membership fee.

2 The Association is a voluntary association. Its constitution declares that all persons who are registered students of the University are also, by virtue of that status, members of the Association. Likewise, a person ceases to be a member of the Association upon ceasing to be a registered student of the University. The constitution also says that every member must pay to the Association the prescribed membership fee. It is this fee which the University effectively collects from each student on behalf of the Association. The University currently holds some $1.4m which it has collected from students as Association fees but has not paid to the Association. Its failure to do so is a result of doubts the University entertains as to the proper recipients of these moneys on behalf of the Association and, accordingly, as to who may give a proper discharge.

3 These doubts stem from a combination of two factors. First, it is common ground that although certain actions were taken during 2000 towards altering the Association’s constitution in certain respects, those proposed alterations never became effective under the provisions of the constitution creating machinery for its own amendment. Secondly, persons were purportedly elected to be members of the Association’s Student Representative Council (or SRC) by reference to positions specified in the proposed constitution which never became effective. As will be explained in more detail in due course, the fact that the proposed changes to the constitution never came into effect, coupled with the fact that certain persons were supposedly elected in the ensuing election to positions not provided for in the current constitution (and likewise that no persons were appointed to positions identified by the current constitution), means that there may not be, with one possible exception, any persons answering the descriptions in the current constitution of the persons in whom the property and moneys of the Association are to be vested as trustees.

4 In these circumstances, the University seeks

5 The defendants are the persons supposedly elected as members of the SRC in the November 2000 election. Two of them (the fourth and twentieth defendants) appeared in person and supported the grant of the relief sought by the University. The others, with three exceptions, were represented by Mr Lang of Counsel and opposed the grant of the relief sought by the University, at the same time seeking, by way of Cross-Claim, certain declarations which, at the risk of over-simplification, might be termed declarations that the election in the year 2000 had produced valid and effective results so that the doubts entertained by the University as to the identity of the Association’s trustees were ill-founded. Two defendants (the sixteenth and twenty fourth) submit to the orders of the Court save as to costs. The seventh defendant has not been served and is said by the fourth defendant to be overseas and uncontactable.

6 Certain important matters were common ground and should be recorded as such immediately. First, it is common ground that the Association is in urgent and immediate need of the funds which the University holds and desires to transfer. At the conclusion of the hearing, certain undertakings were given to the Court and I made certain directions to ensure that wages and trade creditors then due could be paid out of the funds held by the University. Such situations of necessity will continue to occur while the present impasse remains. Second, it is common ground that the proposed alterations to the Constitution involved the addition of a new object which formally aligned the Association with the National Union of Students, a body of which it has been a member for some time. Third, it is common ground that alignment with the National Union of Students is a controversial matter in student circles.

7 I should also mention that Mr Weber, counsel for the University as plaintiff, made it clear that his client would not seek any order as to costs, whatever the outcome of the proceedings might be.

8 A matter to be addressed at the outset is that of the standing of the University to bring these proceedings. Mr Lang, counsel for the represented defendants, submitted that the University has no standing.

9 It is true that the University is not a member of the Association and therefore lacks the most obvious of the interests which would justify its invoking the jurisdiction of the Court with respect to the content of the Association’s constitution and the election of persons to offices provided for in that constitution. However, there are other links between the University and the Association. In particular and as has already been mentioned, the University acts as a fee collector for the Association and students are led to believe that Association fees collected by the University will ultimately be received by the proper authorities of the Association and applied to its purposes. This function is underwritten by ss.16(1)(j) and 28(1)(n)(viii) of the Act. The fees the University collects in this way are arguably held by it as a constructive trustee. Secondly, the Council of the University is given by the Association’s constitution a very significant role in relation to the content of that constitution. Under art 23.2 of the constitution, no alteration approved by the prescribed student voting processes is of any effect whatsoever unless and until approved by the council of the University. Third, the University has an obvious interest in the general welfare of its students and in the provision of facilities to them. This is confirmed by s.7 of the Act. Thus, while the University does not occupy the most obvious position of interest in relation to the matters now in controversy (that is, membership of the Association), it occupies a particular and special position in the context of the formulation of the rules by which the Association is governed and also plays an important financial and facilitative role all of which give it a genuine interest in the proper constitution of the Association’s governing body and, in particular, the sub-group of that body which, according to the Constitution, is to act as trustees of the Association’s property.

10 Declaratory relief may be claimed by a person who has “a real interest to establish” the matter in respect of which the relief is sought, the jurisdiction being “a very wide one”: Forster v Jododex Pty Ltd (1972) 127 CLR 421 at 435 per Gibbs J. An even wider description of the jurisdiction appears in Ibeneweka v Egbuna [1964] 1 WLR 219 at 225:

“After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.”

11 So far as appointment of a receiver is concerned, it was observed by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828 that “there is no principle that a receiver may be appointed only on the application of a person who asserts some proprietary interest in the property concerned”. His Honour went on:

“What the applicants before this Court must show is that it has some legal or equitable right which will be protected or enforced by the making of the orders sought and that no other available remedy is adequate for that purpose.”

12 To my mind, the special position the University is given by the Association’s constitution as the final decision-maker on any proposed constitutional change is sufficient to give it standing to seek the declaratory and other relief for which it now applies. Its position in this respect is enhanced by the University’s other interests as an intermediary between students and the Association in the fee collection process (with the consequent obligations as a constructive trustee to account to the Association’s trustees) and as a guardian of the general welfare of its student body. Its actions in seeking the relief it does seek are directed towards the protection of the interests of its students, including financial interests, in their capacity as members of the Association.

13 Mr Lang’s argument that the University lacks standing to bring these proceedings therefore fails. In any event, I note that two of the defendants (the fourth and twentieth) appeared at the hearing and made submissions. Each is a member of the Association. Each expressly supported the proposition that the relief the plaintiff seeks should be granted.

14 A second threshold issue to which Mr Lang referred is that of justiciability of the present controversy in light of the well known principle stated by Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan (1934) 51 CLR 358 as follows:

“The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.”

15 Starke J put the matter thus:

“As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, the internal affairs of any voluntary association, society or club.”

16 The judgments in Cameron v Hogan make it clear, however, that the general rule will yield where the constitution of the voluntary association shows some clear positive indication of an intention to create legal relations. Another factor which reduces the significance of the general rule in more modern circumstances is the availability of declaratory relief: see Baldwin v Everingham [1993] 1 QdR 10.

17 It is clear that the constitution of the Association is intended to be the source of certain legal or equitable rights, at least insofar as it makes provision for the holding and application of property and moneys of the Association by specified persons as trustees. Provisions relevant to the selection, installation and tenure of such trustees are, to my mind, provisions intended to attract such legal remedies as are appropriate to the selection, installation and tenure of any other body of trustees. It follows that where those provisions correspond with, or depend for their operation upon, the provisions concerned with election of SRC members, matters arising in relation to those latter provisions are justiciable on the footing that rights referable to property are involved.

18 In November 1999, the SRC established a working party to look at ways in which the Association’s constitution might be updated and improved. Mr Heath, then president of the Association, was chairman of the working party and presented a draft working paper to the March 2000 SRC meeting. A period of consultation within the student body followed over several months. This consultation led to a revised set of proposals which was considered at a special meeting of the SRC held on 27 June 2000. That meeting resolved to recommend 29 constitutional changes to the members of the Association. Those changes were incorporated into a broadsheet headed “UTS Students’ Association Constitutional Change Proposals” which was used to give notice of the proposed changes in accordance with art 19.16 of the constitution for the purposes of meetings of students on the several campuses. The broadsheet was posted on notice boards throughout the University and was made available to members generally, with some 2,100 copies being printed and made available for distribution. It is common ground that meetings of students approved the proposed alterations detailed in the broadsheet in accordance with the procedures laid down by the constitution. The alterations so approved were then displayed on notice boards in accordance with art 23.3 of the constitution and no formal objection to them was received. The processes involving action at student level were thus completed by about the end of August 2000.

19 In the meantime, Mr Heath, who, as I have said, was then president of the Association, had taken steps towards eventually securing the approval of the Council of the University to satisfy art 23.2 of the constitution. At a meeting of the University’s Student Affairs and Equity Committee held on 5 June 2000, he said that the Association was undertaking a constitutional change process and that a special SRC meeting was scheduled for 27 June 2000 to consider changes to the constitution, with the intention that student meetings should be held during August. The Registrar of the University, Dr Fitzgerald, was present at that meeting and Mr Heath afterwards arranged for copies of the broadsheet to be delivered to Dr Fitzgerald and other senior officers of the University. This happened in late July and early August 2000. The question of the approval of the changes by the University’s Council was placed on the agenda of the meeting of the Student Affairs and Equity Committee scheduled for 6 September 2000 but that meeting was not held. The matter was, however, considered at the next meeting which took place on 23 October 2000. That meeting voted unanimously to recommend the constitutional changes to the Council of the University, subject to advice from the Council’s By-laws and Rules Committee. The matter was placed on the agenda of a meeting of the latter committee to be held on 9 November 2000 but was not considered at that meeting. It was, however, considered at a meeting on 28 November 2000 when the difficulties with the constitutional changes because of the abolition of the positions of secretary and treasurer, being two of the officers included as trustees of the property and funds of the Association, were noted. The committee therefore did not make a recommendation to the Council. The approval of Council under art 23.2 of the constitution has never been given.

20 Purported election of elected members of the Association’s SRC was undertaken in November 2000 on the erroneous footing that the constitutional changes which had been approved by the student body in August 2000 were in force.

21 Those changes did not affect the manner of conducting an election or the election machinery. The provisions of the constitution as to election are brief and were not altered. Nor was there any alteration to the Election Regulations which had been adopted pursuant to the constitution and had been in force for some time. The purported election of November 2000 was thus regularly conducted, in the sense that the procedures adopted were those laid down by the constitution and the regulations made under it.

22 The difficulty is that the offices purportedly filled by election were offices specified in the proposed (but not effectively in force) constitution rather than those specified in the unamended and continuing constitution. It is necessary to examine these matters in some little detail.

23 The unamended and continuing constitution makes provision for the following to constitute the SRC:

· “The elected President, Treasurer and Secretary” - which, as I understand it, all concerned agree refers to “the elected President”, “the elected Treasurer” and “the elected Secretary”.

· “The Campus Convenor and a nominated member of each Campus Committee” - the reference to “Campus Convenor” being a reference to a person elected from and by students of one of the University’s three campuses (art 12.1.1) and the reference to “a nominated member of each Campus Committee” being a reference to a person nominated by a Campus Committee elected by students of a particular campus (that is to say, the nominated member of a Campus Committee, although elected to that Campus Committee by students, takes his or her position on the SRC by virtue of nomination by the Campus Committee rather than by student election).

· “The Student member of University Council” - a reference to the person occupying that position under the Act.

· “A student member of Academic Board to be elected by the Students’ Representatives on the Academic Board” - the Academic Board being a board within the University.

· “A Women’s Officer elected by and from members who are women”.

· “An Overseas Students’ Officer elected by and from members who are Overseas students”.

· “A postgraduate student elected by and from members who are postgraduates”.

· “A total of ten student councillors, elected from the general student population”.

24 Some of these positions are filled by ballot upon which all members are entitled to vote. Others are filled by ballot involving only a particular section of the membership. One (the position referable to the Academic Board) is filled by a selection process. One (the position of the student member of the University Council) is ex officio in the sense that membership of the SRC flows from the holding of the other position.

25 It is appropriate, at this point, to look also at other governance arrangements within the constitution. These involve an executive committee (or, as it termed, simply “Executive”) of the SRC, campus committees as already described, certain standing committees and the trustees of the property and moneys of the Association. The two to which particular attention must be paid are the Executive and the trustees.

26 The Executive of the SRC is to consist of five members, being the President, the Treasurer and the Secretary (all of whom, as already noted, are officers to be elected by the student body), the Education Vice-President and the Assistant Secretary. The last two are to be elected by the SRC from its own membership at the first meeting held after an annual election. The trustees in whom are vested the property and moneys of the Association are the same officers who constitute the Executive, although their status as trustees derives not from their being the Executive but, rather, from their holding the respective offices of President, Treasurer, Secretary, Assistant Secretary and Education Vice-President.

27 Turning to the proposed constitution by reference to which the November 2000 election was erroneously conducted, we find that provision is made for the SRC to consist of:

· “The elected President”

· “The elected General Organisers (2)”

· “The elected Aboriginal and Torres Strait Islander (ATSI) Officer”

· The elected Campus Officers (Kuring-gai Markets and Gore Hill/St Leonards)”

· “The Student Member of University Council elected to University Council with the highest number of votes (across the undergraduate and Post-Graduate elections)”

· “A Women’s Officer”

· “An International Students Officer”

· “Two Postgraduate Officers (one coursework, one research)”

· “A total of twelve student councillors”.

It was by reference to this list and the voting constituencies applied by the proposed constitution to the positions in the list that the November 2000 election proceeded.

28 Mr Weber’s contention was that the November 2000 election miscarried entirely since, to a significant extent, the wrong positions were submitted to the electors to be filled. Mr Lang submitted that, despite the obvious irregularities, the Court should not interfere in the result. He pointed to the fact that the Election Regulations (not affected by the proposed alterations) had been complied with or, at least, that there was no real suggestion that they had not been complied with in any substantive way. He also pointed to the fact that there was no evidence of any complaint to the Electoral Tribunal under the Electoral Regulations established to deal with complaints of irregularity.

29 Mr Lang referred to well-known authorities in the field of parliamentary and company or club elections, particularly Woodward v Sarsons (1875) LR 10 CP 743, Chanter v Blackwood (1904) 1 CLR 39, Ryan v South Sydney Junior Rugby League Club Ltd (1974) 3 ACLR 486 and Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362. But these and most other election cases, including those in the industrial sphere, involve for the most part irregularity of a procedural kind or some form of interference with the exercise of voters’ rights. Here, as I see it, the position is different and the objection is more fundamental.

30 Had the election proceeded in accordance with the constitution, the following would have occurred:

31 Furthermore, these rights would have been exercisable through one election process so conducted as to provide to relevant members opportunities to vote in every case where more than one candidate was standing. This is the effect of art. 6.1 of the constitution and the election regulations. These give no opportunity for one elected office to be filled independently of the others, in the sense that a candidate not successful in relation to one position may stand for another.

32 In the events which happened, nominations were called for election to the following twenty three positions:

· President

· General Organisers (2)

· Aboriginal and Torres Strait Islanders (ATSI) Officer

· Campus Officers (3, one from each campus)

· Women’s Officer

· International Students’ Officer

· Postgraduate Officer (coursework)

· Postgraduate Officer (research)

· Councillors (12)

33 There was eventually only one nomination for the office of President, being that of Ms Gerrard, the first defendant, and, in accordance with reg 5.5 of the election regulations, she was declared elected. For each other position, there was a contest. A ballot was conducted for each such position and one of the candidates was declared elected in consequence of that ballot. In the case of the Campus Officers, the voters upon each ballot were members attached to the respective campuses. In the case of the Women’s Officer, the voters upon the ballot were women students. In the case of the International Students’ Officer, the voters upon the ballot were persons within the definition of “international student” in the proposed constitution (that is, “member holding an International (overseas) student visa”). In the case of each Postgraduate Officer, the voters upon the ballot were students undertaking a postgraduate course as defined by the University. In the case of the General Organisers and the twelve undesignated councillors, the voters were members generally.

34 The only offices for which nominations were called by reference to the titles and voting constituencies in the constitution were those of President and Women’s Officer. There were nominations for four other offices having titles very similar to (and voting constituencies identical with) those in the constitution, namely, the three Campus Officers and the International Students’ Officer. Nominations were called for two Postgraduate Officers and two were purportedly elected by ballot of postgraduate students, although the constitution allows for the election of only one councillor by that electorate. An ATSI Officer was purportedly elected, as were two General Organisers, although no provision is made in the constitution for the election of any of these. No one was nominated or elected as Treasurer or as Secretary, being two central positions provided for in the constitution. Finally, twelve undesignated (or general) councillors were purportedly elected by the members at large, although the number the constitution allows to be elected is only ten.

35 In these circumstances, I am compelled to conclude that the election required by art 6.1 of the constitution was not in reality conducted or, to adopt the language of Lord Coleridge CJ in Woodward v Sarsons (above), that “there was no real electing at all”. An election process was undertaken by reference to a series of offices and positions which, while resembling in some respects those in the constitution, was sufficiently different to make it impossible to say that the effect of that process was to place before the several constituencies the issue of electing candidates to the totality of the nineteen positions available and required to be filled. The constitution views the annual election as a single event comprising a series of nominations followed by a series of separate but related ballots. The totality constitutes what art 6.1 describes as “The election of members of the Executive and the Students’ Representative Council”. A series of nominations and ballots directed towards the election of twenty three persons to twenty three positions, including some which are not recognised by the constitution and excluding some which are so recognised, simply cannot be the single composite “election” to which art 6.1 refers. This situation is distinguishable from one where some vitiating factor such as fraud affects one of the ballots. That kind of factor does not lead to the conclusion (which is inescapable here) that the whole of the process - all nominations and all ballots - proceeded on a fundamental premise that was false.

36 Persons deciding whether or not to stand for election did so by reference to a series of positions which differed in significant ways from those provided for in the constitution. A person standing as a General Organiser, for example, might not have nominated as Secretary. Likewise, someone with a particular desire to be, say, Treasurer might have stood for election to that position had its availability been known, while being unwilling to stand for some other position such as General Organiser. In the same way, someone who nominated for election to one of twelve general councillor positions might not have nominated had they known that there were only ten such positions. In these and other ways, misrepresentation of the nature of the positions to be filled by election, as well as the number of those positions (a total of twenty three according to the misrepresentation, compared with the nineteen under the constitution), could have influenced the choices of members in deciding whether to seek election. There is no way of somehow excising four and selecting nineteen to remain. The same influence was at work within the voting process itself. Voters have purported to elect twenty three councillors when it was open to them to elect only nineteen and they have done so by reference to several positions and offices which are non-existent.

37 Mr Weber raised an additional point. He noted that the assumption which students may be presumed to have made as to the state of the constitution when they voted in November 2000 (that is, that the amendments voted upon in August were in force) would have caused them to believe that, at the time of the supposed election, the Association was bound by the new object formally aligning it with the National Union of Students. Students would therefore have perceived the Association as having a stronger bond with the National Union of Students and a stronger commitment to its policies than comes from mere membership of that organisation. Given that alignment with the National Union of Students is a controversial matter in student circles, it may well be the case, in Mr Weber’s submission, that voters under a misapprehension as to the alignment would vote differently from those not under any such misapprehension, and that members entitled to vote would decide to exercise their right or to refrain from doing so by reference to the misapprehension.

38 While there is some force in this, I am reluctant to go too far into voter motivation and ways in which it might have been affected. It is sufficient, I think, to say that both potential candidates and potential voters as a whole were under a serious and fundamental misapprehension as to the positions available to be filled by election and the results that their votes would achieve - a misapprehension so profound as to cause the procedure as a whole not to be the “election” to which the constitution refers.

39 I conclude that no persons were validly elected to be members of the SRC as a result of the purported election conducted in November 2000.

40 It was urged upon me by Mr Lang that I should apply some kind of principle of general or rough equivalence and make declarations which, in effect, caused some (but not all) of the persons supposedly elected to particular positions in November 2000 to be regarded as elected to differently designated positions.

41 The first claim in the Cross-Claim (paragraph 1) is for a declaration that, at the November 2000 election, the following persons were elected to the following positions and that those persons hold those positions:

42 I am not prepared to make such declarations. In the first place and for reasons already stated, I cannot accept that any person was duly elected to any office by the processes adopted in November 2000.

43 A second reason for declining to make the declaration is that I can see no basis on which it is open to me to regard Ms Brennan and Ms Silove as the “elected Treasurer” and Mr Tolley as the “elected Secretary” referred to in the constitution. The expressions “elected Treasurer” and “elected Secretary”, understood in the whole of the context of the constitution, refer to persons who are elected by the student body to occupy those particular offices. They do not refer to persons who become members of the SRC on some independent basis and are then designated by the SRC itself to be treasurer and secretary.

44 I would not, in any event, accept that several persons together might hold one office (see paragraphs (b), (f) and (i) above). Mr Lang submitted that such a situated is allowed by s.181 of the Conveyancing Act 1919 which says that, unless a contrary intention appears, “the singular includes the plural and vice versa” in “all deeds, contracts, wills, orders and other instruments (whether relating to property or not)”. Mr Lang referred me to Re Khan [1947] QWN 41 where probate was granted to two persons “for so long as they should hold the office of secretary of the corporation of the Mohammedan Mosque”. But that case is not in point, given that the appointment of the two persons to the single office of secretary was expressly described as in accordance with “the rites, rules, laws and usages” of the religious organisation. Even assuming that the constitution of the Association in the present case is an “instrument”, the reference to a single office can only mean that it is to be filled by a single person, so that the context therefore precludes such operation as s.181 might otherwise have. It is not open to the members of the Association, acting in accordance with its constitution, to elect twenty seven persons to be Treasurer and forty three persons to be Secretary, with some form of joint responsibility in each case. Nor, for example, is it open to the Governor to install five persons as Chief Justice of this Court under s.26(1) of the Supreme Court Act 1970 just because s.8(b) of the Interpretation Act 1987says that, subject to any contrary indication, the singular includes the plural. A reference to a single office connotes a single office holdere unless there are clear words to show that there may be multiple holders. “Job-sharing” could be mandated by appropriate alteration of the Association’s constitution but as the constitution stands, it is not.

45 The alternative claim in the Cross-Claim, set out in its paragraph 2, is for declarations as follows:

(a) a declaration that at the November 2000 election, the persons named in paragraphs (a) and (d)-(j) set out above were duly elected to those positions on the SRC and now hold those positions;

(c) an order that the Association forthwith conduct a by-election for the positions of Treasurer and Secretary of the Association pursuant to the constitution and election regulations of the Association.

46 There are insuperable difficulties here too. In relation to the postgraduate positions and the position of Campus Convener at Gore Hill/St Leonards, I am, for reasons already discussed, not prepared to make a declaration that two persons have been elected to a single position. With respect to the general councillors, the fact that ten of the twelve supposedly elected remain after two have voluntarily stood aside provides no firm basis on which it can be said that those ten were elected to the ten positions which were in reality available under the constitution. Furthermore, declaration (b) could only be made if the collection of persons who purported to act on 6 February 2001 constituted the SRC and, for reasons I have given, I do not think that they did. I therefore decline to make declarations in the terms sought in paragraph 2 of the Cross-Claim.

47 Paragraph 3 of the Cross-Claim seeks a declaration that at a meeting of the SRC held on 22 November 2000, Ms Creagh was duly elected as Education Vice-President of the Association and holds that position. As has been noted already, election of the Education Vice-President is a matter to be dealt with by the SRC itself at the first meeting held after an annual election.

48 The minutes of the supposed meeting of 22 November 2000 are in evidence. They show, clearly enough, that the persons present on that occasion were persons supposedly elected by means of the election process undertaken during that month. Because those persons were not in truth elected, the gathering was not a meeting of the SRC.

49 I therefore do not regard it as open to me to make the declaration in paragraph 3 of the Cross-Claim.

50 The fact that, on the view I have taken, no election occurred under the constitution in November 2000 makes it necessary to consider whether the SRC in office before the purported election in that month continues in office.

51 It is clear that the purported election cannot be the source of a claim by any person to have become a member of the SRC and, as I have elaborated, that actions by gatherings of the persons purportedly elected as members on that occasion cannot effectively make appointments which it is open to the SRC to make. But the possibility that the persons duly installed under the constitution before November 2000 might still be in office is one which should be addressed and investigated. Art 4.2 and the definition of “Term of Office” in art 1.2 are relevant to that possibility.

52 Art 4.2, so far as relevant, reads as follows:

“Membership of the Students’ Representative Council shall continue unless terminated by … the expiry of the Term of Office which shall be deemed to expire at 4 pm on the first Sunday in December.”

“Term of Office means: for an elected representative the period between the appointment of the representative after their election and the appointment of representatives at the subsequent election; and for ex-officio members the period between their accepting a position up until the expiry of the conditions that enabled the appointment.”

53 When the definition of “Term of Office” is applied to the construction of art 4.2, that provision assumes the following form insofar as it is concerned with an elected member:

“Membership of the Students’ Representative Council shall continue unless terminated by … the expiry of the Term of Office, that is, the period between the appointment of the representative after their election and the appointment of representatives at the subsequent election, which shall be deemed to expire at 4 pm on the first Sunday in December.”

54 The provision in the form just recited refers to a period the close of which marks the end of the term of office, that close being “the appointment of representatives at the subsequent election”. If that part alone is examined, the term of office cannot come to an end unless and until there has been “the appointment of representatives at the subsequent election”, being the election subsequent to that at which the incumbent was elected. It follows that if, as has happened, an attempt at “subsequent election” is made but miscarries, that attempt does not affect the continuity of the person who holds the relevant office. That person remains in office despite the unsuccessful attempt. If the provision ended there, it would be a quite simple matter to conclude that the SRC as constituted before the November 2000 purported election continues in office today, subject to unrelated factors which may have caused individual offices to be vacated.

55 But some effect must be given to the last part of the provision in the form set out at length above:

“which shall be deemed to expire at 4 pm on the first Sunday in December.”

56 This may indicate one of two things: first, that the office of a particular incumbent may in no event continue beyond 4 pm on that Sunday; or, second, that it is at 4 pm on that Sunday that a person newly elected to hold the office replaces the incumbent.

57 If the first possibility is correct, the words concerned with the appointment of representatives at the election subsequent to that at which the incumbent was elected are deprived of utility and denied meaning. If, come what may, the period of office expires at 4 pm on the first Sunday of December, the art 1.2 definition of “Term of Office” is set at nought.

58 The second possibility lays emphasis upon the selection or appointment of the successor as the main determinant of the end of the term of office. According to that possibility, 4 pm on the first Sunday in December is then fixed as a common change-over point at which the old guard yields to the new in consequence of the election of new incumbents for the several elected positions. Otherwise, the change-over point would be somewhat arbitrary, depending upon the accident of the precise point at which “the appointment of representatives at the subsequent election” occurred in accordance with the election processes.

59 The Privy Council said in Ditcher v Denison (1857) 11 Moore PC 325:

“It is a general rule in jurisprudence that one who reads a legal document whether public or private should not be prompt to ascribe - should not, without necessity or some sound reason, impute - to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use.”

60 On this basis, the first of the postulated verbal approaches should be rejected and the second should be adopted, for it is only the second which gives some effect to both specifications as to expiry of the period of office, that is, 4 pm on the first Sunday in December and appointment of the successor in office. The “Term of Office” as defined has as its essential concluding point the appointment of a successor at the subsequent election and the addition of the deeming by reference to 4 pm on the particular Sunday must be regarded as a gloss for administrative convenience and certainty which does not detract from that essential determinant. One would, in any event, incline for reasons of practical utility to the second possibility. It would, in theory, have been open to those framing the constitution to provide for a sudden and stark vacuum at 4 pm on the appointed Sunday but one would hesitate to suppose that they had intended this unless the words left no alternative.

61 The specification based on the first Sunday in December is, clearly enough, related to the statement in art 6.1 that the annual election is to be conducted in Spring Semester which indicates the latter part of a calendar year. If, for some reason, an election is delayed and, notwithstanding art 6.1, is held after year’s end, the essential determinant of the conclusion of the term of office (being appointment of a successor) will continue to apply but the gloss for administrative convenience and certainty will not apply.

62 The finding that no persons were validly elected to be members of the SRC as a result of the purported election conducted in November 2000 thus leads to the conclusion that every person who held office as a member of the SRC at the time of that purported election continues to hold that office, unless an event mentioned in art 4.2.1 (resignation in writing), art 4.2.2 (removal for persistent absence) or art 4.2.3 (termination of registration at the University) has supervened.

63 Paragraph 4 of the Cross-Claim seeks an order of the Court that the SRC “forthwith elect from its members the Assistant Secretary of the Association”. The finding that persons in office before November 2000 have continued in office means that such an order would be meaningful, at least in the sense that there is an SRC. But there are at least two reasons why the order should be refused. First, the persons who constitute that SRC are not parties to this litigation. Second, there may already be an Assistant Secretary in office. I therefore decline to make the order sought.

64 Again, the finding that persons in office before November 2000 have continued in office subject to other exclusionary provisions of the constitution means that there may well be persons who are the trustees in terms of art 21.1. But it remains to be seen whether any such continuing trustees are available and willing to act. I am therefore not at present prepared to make any order as sought. In addition, I have no reason to think that the University would not transfer the relevant funds to the trustees if and it saw that they remained able and prepared to discharge the duties of trustees.

65 Paragraph 6 of the Cross-claim seeks a declaration that Ms Gerrard, who was at the purported election elected unopposed as President, was duly elected as President and holds that office, together with an order that the University transfer to her as trustee of the Association all property and moneys of the Association currently held by it.

66 My conclusion that the purported election of November 2000 was not the composite election referred to in and required by the constitution means, as I have said, that no persons were elected on that occasion. I am therefore unable to declare that Ms Gerrard was so elected. But even if that were possible, it is clear that art 21.1 reflects an unqualified intention that there should always be five trustees. In those circumstances, a court of equity will not countenance the appointment of a single natural person as trustee: Lonsdale v Beckett (1850) DeG & Sm 73; Re Ellison’s Trust (1856) 2 Jur NS 62. I decline to make the order sought in paragraph 6 of the Cross-Claim.

67 The conclusion that there is, at least in theory, still an SRC in office changes the complexion of the plaintiff’s application for the appointment of a receiver. Before making any such appointment, I would need to be satisfied that the SRC which, in accordance with that conclusion, is theoretically capable of functioning is either practically unable or unwilling to do so. The possibility of receivership will remain alive unless it is seen that the members of that SCR who are, under art 21.1, the trustees of the property and moneys of the Association have resumed control of those matters and that arrangements for new elections have been put in train. Whether the persons in question proceed in this way will no doubt depend on a number of factors, including whether they remain registered at the University (see art 4.2.3).

68 The jurisdiction to appoint a receiver to trust property which is in jeopardy is well established. The nature and scope of the jurisdiction are discussed in some detail in two recent decisions of Warren J of the Supreme Court of Victoria: Yunghanns v Candoora No 19 Pty Ltd (No 2) [2000] VSC 300 and Martyniuk v King [2000] VSC 319. Her Honour sets out the relevant principles at length at paras 64 to 76 of the judgment in the former and paras 14 to 32 of the judgment in the latter. I am content simply to adopt those paragraphs by reference.

69 It is also well established that receivership is a remedy of last resort and is not to be ordered lightly. It was described by the Victorian Court of Appeal in National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 259 as “an irresistible invasion” which no court will order unless convinced of its necessity. In light of the fact that SRC members are, as discussed above, theoretically still in office I am not, at this point, convinced of the necessity of the appointment of a receiver to preserve the property and money of the Association. It is appropriate that a short time be allowed to discover whether continuing SRC members can and will act to put matters into order. The time must be short given the clear need for the financial affairs of the Association to be restored to a firm footing virtually immediately so that the funds held for the Association’s account by the University can be paid over and payment of salaries and creditors in the usual way can resume. The application for appointment of a receiver can be revisited in the light of whatever develops in relation to those matters.

70 The fact that the application for the appointment of a receiver was described as interlocutory caused me to ask whether the plaintiff proffered to the Court the usual undertaking as to damages: see National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 and Cardile v LED Buildings Pty Ltd (1999) 198 CLR 380 at footnote 55. Mr Weber submitted that, as the application was not ex parte and had been fully presented and argued as if on a final basis, there was no real need for any such undertaking. Upon reflection, I accept that position and indicate that if the application is pursued and it appears that an appointment is justified, I will not regard absence of any such undertaking as an obstacle to grant of the relief sought.

71 Mr Lang drew my attention to evidence that University authorities have expressed themselves supportive of certain attempted measures of the general kind envisaged by the Cross-Claim - specifically, action by the supposedly elected SRC to call a new election and, in the meantime, to appoint from its own ranks persons with the titles or designations of those who are to be the trustees under art 21.1. Mr Lang sought to use this as a basis for arguing that the University is somehow estopped from pursuing the claims in the Amended Summons. I do not see the matter that way, although it may be that the University’s conduct in that respect could be viewed as relevant to the exercise of the discretion the Court undoubtedly has in relation to the remedies sought. But even allowing for that conduct, I believe that the declaration sought in paragraph 1 of the Amended Summons should be made and that, subject to what I have already said, the question of appointment of a receiver should continue to be addressed.

72 I have already mentioned the fact that the fourth and twentieth defendants, each of whom is a member of the Association and was a candidate at the purported election, made submissions to the Court and supported the grant of the relief claimed by the University. Otherwise, those parties made complaints related to particular acts said to amount to irregularities in relation to the conduct of the purported election. Given the principal finding in relation to the election, it is not necessary to address those matters.

73 I am conscious of the fact that the seventh defendant was not served and took no part in the proceedings. Ordinarily, the Court would not make an order affecting such a person. But the seventh defendant is, I am told, one of the twelve persons purportedly elected as general councillors and, as the others were represented by counsel and there is nothing to suggest that the position or interest of the seventh defendant is in any way distinctive, I shall proceed notwithstanding.

74 I make the following declaration and orders:

75 I make no order as to costs.

******

Last Modified: 05/08/2001

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University of Technology Sydney v Gerrard [2001] NSWSC 368

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CITATION:	UTS v GERRARD [2001] NSWSC 368
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2200/01
HEARING DATE(S):	30/04/01
JUDGMENT DATE:	7 May 2001
PARTIES :	University of Technology Sydney - Plaintiff Jessica Gerrard (and the persons whose names appear in Schedule 1 to Summons) - First toTwenty seventh Defendants
JUDGMENT OF:	Barrett J

COUNSEL :	Mr R.J. Weber - Plaintiff Mr A.D. Lang - 1-3, 5, 6, 8-14, 17-19, 21-23, 25-27 Defendants Fourth and Twentieth Defendants in person
SOLICITORS:	Minter Ellison - Plaintiff Slater & Gordon - Defendants
CATCHWORDS:	VOLUNTARY ASSOCIATION - Whether election of council valid - Whether University has standing in relation to controversy concerning constitution of students' association - Justiciability of such controversy - Construction of provisions concerning termination of office after subsequent election of officers - Whether several persons may occupy one office - Whether Court will sanction single trustee where instrument requires several trustees - Principles upon which Court will appoint receiver of trust property in jeopardy - Need for other avenues of resolution to be further pursued first.
LEGISLATION CITED:	University of Technology, Sydney Act 1989 Conveyancing Act 1919
CASES CITED:	Forster v Jododex Pty Ltd (1972) 127 CLR 421 Ibeneweka v Egbuna [1964] 1 WLR 219 at 225 Clarke v Australian Labor Party [1999] SASC 365 Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828 Cameron v Hogan (1934) 51 CLR 358 Baldwin v Everingham [1993] QdR 10 Woodward v Sarsons (1875) LR 10 CP 743 Chanter v Blackwood (1904) 1 CLR 39 Ryan v South Sydney Junior Rugby League Club Ltd (1974) 3 ACLR 486 Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362 Re Khan [1947] QWN 41 Ditcher v Denison (1857) 11 Moore PC 325 Lonsdale v Beckett (1850) DeG & Sm 73 Re Ellison's Trust (1856) 2 Jur NS 62 Yunghanns v Candoora No 19 Pty Ltd (No 2) [2000] VSC 300 Martyniuk v King [2000] VSC 319 National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 259 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 Cardile v LED Buildings Pty Ltd (1999) 198 CLR 380
DECISION:	1. Declare that at the election of the University of Technology Sydney Students' Association held in 2000, no persons were validly elected to the Student Representative Council of that Association; 2. Order that the Cross-Claim be dismissed; 3. Order that the remainder of the claims in the Amended Summons be stood over to 9.30 am on Monday, 14 May 2001 before Barrett J