UTS v GERRARD

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 (a) a declaration that at the election held in 2000, no persons were validly elected to the SRC of the Association; and (b) an order for the appointment of a receiver and manager of the property and moneys of the Association intended to be vested in its trustees and of the assets and undertaking of the Association, together with ancillary relief. 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.