March 04, 2023

Trindall v NSW Aboriginal Education Consultative Group [2023] NSWSC 85

7 minutes

"Cancel the meeting you've set to remove me!"

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An association relating to the education of First Nations people, D, planned to convene a meeting to consider removing its president, P. P applied to the Court on an urgent basis to restrain D from doing so: [1]

The meeting was set for a Sunday, P having been provided with very little notice. P approached the Court for an urgent hearing on the Friday beforehand, and the Court made the orders sought: [2]

The president said (i) the meeting was not called in accordance with D’s constitution, and (ii) for it to proceed would be to deny procedural fairness i.e. the chance to respond to criticism: [6]

The president had been involved in education for 40 years, was a life member of D, and had been elected president in 2021: [15]

P said that if their role as president was to end, they may need to reapply for their existing job, with a risk they might fail: [16], [42]

D’s work includes seeking, and then applying, funding. The evidence suggested P would argue that they deserved credit for $20m in funding for the association: [26]

Evidence suggested a power struggle and the passing of a motion of no confidence in P in December 2022: [28] – [30]

In January 2023, lawyers for the 8 other members of the management committee wrote to P setting out complaints and seeking a response: [31]

The complaints included complaints of misusing D’s funds: [32]

P denied the complaints: [38]

P was sick in hospital at the time of the hearing and would not recover in time to attend the meeting in any case: [43]

P satisfied the criteria for an interlocutory injunction: proving (i) there was a serious question to be tried and (ii) the balance of convenience favoured an injunction: [47]

The obligation of the association to afford P procedural fairness arose by inference: [49] – [51]

For the meeting to proceed would offend that requirement due to: P’s illness, the lack of particulars of the claims made, and the lack of time given to respond to the claims: [52] – [55]

As such, the Court found that a serious question arose: [58]

The Ds could not show any prejudice arose from the delay, the risk of the president incurring costs that were not reasonably identifiable was not apparent: [61]

P would likely suffer serious reputational loss if the meeting was to go ahead: [63]

Indeed, the D may suffer loss of funding for removing its president in circumstances where procedural fairness appears that it may have been denied. The external funding D relies on may be put at risk: [64]

P would almost certainly suffer financial loss if the meeting went ahead, where D would be unlikely to suffer loss: [65]

The balance of convenience was met and the injunction granted: [68], [71]

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