University of New England v Samantha Aber & Ors [2005] NSWSC 1353

New South Wales Supreme Court

CITATION : University of New England v Samantha Aber & Ors [2005] NSWSC 1353

HEARING DATE(S) : 9 December 2005

JUDGMENT DATE : 9 December 2005

JUDGMENT OF : Brereton J

CATCHWORDS : PROCEDURE - Discovery and interrogatories - subpoenas and notices to produce - setting aside - relevance.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW), r 21.11

Portal Software v Bodsworth [2005] NSWSC 1115 CASES CITED : University of Technology, Sydney v Gerrard [2001] NSWSC 368

University of New England PARTIES : Samantha Aber

FILE NUMBER(S) : SC 6000/05

Ms M Allars (Plaintiff) COUNSEL : Mr S Wells (Defendants)

Abbott Pardy & Jenkins (Plaintiff) SOLICITORS : McMahons National Lawyers (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 9 December 2005

6000/05 University of New England v Samantha Aber & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: By summons filed on 24 November 2005 the University of New England (the University) as plaintiff claims orders appointing a receiver and manager to the assets of the University of New England Students' Association (UNESA), and conferring on the receiver the powers of the Council and Executive of UNESA, of which the defendants constitute the current executive. The summons describes those assets as being held "on trust for the use and benefit of members, for the time being", of UNESA. It is unnecessary for me to decide, for present purposes, whether that accurately describes their nature, but I should not be taken as acceding to the proposition that it does. 2 The summons has been before the Court on a number of occasions, and is presently next returnable before the Expedition Judge on 16 December 2005. The urgency which attends the hearing of the summons arises from the circumstance that the University contends that the current Council, Executive and office bearers of UNESA will cease to hold office under the Constitution on 31 December this year, and that annual elections not having been held, there are no replacements, so that there will be a vacuum in the governance and constitution of UNESA from 1 January 2006. Again, it is not necessary for me, on this application, to resolve, even on an interlocutory basis, whether there is substance in that contention, though again, I should not be taken to acceding to the proposition that there is [cf University of Technology Sydney v Gerrard [2001] NSWSC 368]. It suffices to say that it is plainly urgent enough that the issues be resolved sooner rather than later. 3 On 30 November 2005, when the summons was first returnable before the Court, directions were made which, inter alia, granted leave to the parties to issue Notices to Produce returnable before the Registrar on 5 December 2005. 4 The plaintiff University served a Notice to Produce on the defendants returnable on 5 December 2005, which was dated 1 December 2005. It required production of documents described in 12 numbered paragraphs, as follows: 1. Current Constitution and Regulations of the University of New England Students' Association ("UNESA").