Cancel the meeting you’ve set to remove me!
Trindall v NSW Aboriginal Education Consultative Group Inc [2023] NSWSC 85
In the recent decision of Trindall v NSW Aboriginal Education Consultative Group Inc [2023], the Supreme Court of New South Wales considered an application for an interlocutory injunction.
An association relating to the education of First Nations people, the defendant, planned to convene a meeting to consider removing its president, the plaintiff. The plaintiff applied to the Court on an urgent basis to restrain the defendant from doing so.
The meeting was set for a Sunday, the plaintiff having been provided with very little notice. The plaintiff approached the Court for an urgent hearing on the Friday beforehand, and the Court made the orders sought.
The president said that the meeting was not called in accordance with the defendant’s constitution, and for it to proceed would be to deny procedural fairness, i.e. the chance to respond to criticism.
The president had been involved in education for 40 years, was a life member of the defendant, and had been elected president in 2021.
The plaintiff 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.
The defendant’s work includes seeking, and then applying, funding. The evidence suggested the plaintiff would argue that they deserved credit for $20m in funding for the association.
Evidence suggested a power struggle and the passing of a motion of no confidence in the plaintiff in December 2022.
In January 2023, lawyers for the 8 other members of the management committee wrote to the plaintiff setting out complaints and seeking a response.
The complaints included complaints of misusing the defendant’s funds.
The plaintiff denied the complaints.
The plaintiff was sick in hospital at the time of the hearing and would not recover in time to attend the meeting in any case.
The plaintiff satisfied the criteria for an interlocutory injunction: proving there was a serious question to be tried and the balance of convenience favoured an injunction.
The obligation of the association to afford the plaintiff procedural fairness arose by inference.
For the meeting to proceed would offend that requirement due to: the plaintiff’s illness, the lack of particulars of the claims made, and the lack of time given to respond to the claims.
As such, the Court found that a serious question arose.
The defendants could not show any prejudice arose from the delay, the risk of the president incurring costs that were not reasonably identifiable was not apparent.
The plaintiff would likely suffer serious reputational loss if the meeting was to go ahead.
Indeed, the defendant may suffer loss of funding for removing its president in circumstances where procedural fairness appears that it may have been denied. The external funding the defendant relies on may be put at risk.
The plaintiff would almost certainly suffer financial loss if the meeting went ahead, where the defendant would be unlikely to suffer loss.
The balance of convenience was met, and the injunction was granted.
This case illustrates the importance of procedural fairness with respect to an order for an interlocutory injunction. If you are seeking such orders, there must be a serious question to be tried. If you would like advice in relation to corporate disputes, please do not hesitate to reach out to our team.
*This article was prepared with the assistance of Christie Preston*
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