Cox v The Animal Welfare League of New South Wales (No 2) [2017] NSWSC 1348

Supreme Court New South Wales

Medium Neutral Citation: Cox v The Animal Welfare League of New South Wales (No 2) [2017] NSWSC 1348 Hearing dates: 4 October 2017 Decision date: 04 October 2017 Jurisdiction: Common Law Before: Ball J Decision: The plaintiff's motion filed 28 September 2017 dismissed. Catchwords: EQUITY – Equitable remedies – Injunctions – Whether applicant can obtain interlocutory injunction restraining the board of the defendant company from imposing disciplinary sanctions on her Cases Cited: Cox v The Animal Welfare League of New South Wales [2017] NSWSC 374 Category: Procedural and other rulings Parties: Deborah Cox (Plaintiff) The Animal Welfare League of New South Wales ACN 000 533 086 (Defendant) Representation: Counsel: C Adamson (Solicitor) (Plaintiff) EAJ Hyde (Defendant)

Solicitors: Chris Adamson (Plaintiff) Carter Newell Lawyers (Defendant) File Number(s): 2017/76968 Publication restriction: Nil

EX TEMPORE Judgment 1. The plaintiff, Mrs Deborah Cox, has been an active member of the defendant, the Animal Welfare League of New South Wales (the AWL), for the past 17 years or so. 2. Prior to 13 May 2017, Mrs Cox was a member of the board of the AWL. She was not re-elected at an election for members of the board of the AWL that was held on 13 May 2017. In these proceedings, Mrs Cox challenges the validity of that election on various grounds going to the way in which the election was conducted and seeks to be reinstated as a director pending a further election. 3. On 16 August 2017, the AWL served on Mrs Cox a notice that the board was proposing to consider a resolution to censure, fine, suspend or expel Mrs Cox as a member pursuant to cl 5.3 of the AWL's Constitution. Originally it proposed to consider that resolution on 12 September 2017. However, the meeting was postponed until 10 October 2017 due to the death of Mrs Cox's husband on 27 July 2017. 4. The notice dated 16 August 2017 attached a schedule setting out details of matters that the board proposed to consider in determining whether to take any disciplinary action against Mrs Cox. It also indicated that Mrs Cox would be given an opportunity to make oral and written submissions to the board concerning the proposed disciplinary action. The matters identified in the notice largely concern the commencement of these court proceedings and Mrs Cox's conduct in relation to them. 5. By a notice of motion filed on 28 September 2017, Mrs Cox seeks, among other things, an interlocutory injunction restraining the board from taking any further steps in the disciplinary proceedings until the determination of these proceedings - that is, until the Court determines Mrs Cox's claim concerning the validity of the election held on 13 May 2017. 6. Mrs Cox's claim for an interlocutory injunction is put on two broad bases. First, she claims that she has a prima facie case that the current board was invalidly elected, and consequently is not able to impose any disciplinary sanctions on her. Second, she submits that it is already obvious that the current board is biased against her, and consequently is incapable of giving her a fair hearing. Mrs Cox submits that if the interlocutory injunction is not granted she will suffer irremediable damage to her reputation if the board decides to take disciplinary action against her. 7. There are two difficulties with the first way in which Mrs Cox puts her application. First, there was no evidence before me dealing with the strength of her case that the election was invalid. 8. Mr Adamson, who appeared for Mrs Cox, sought an adjournment of the application to permit her to adduce further evidence on that matter. However, I refused that application. Mrs Cox has been on notice of the proposed disciplinary proceedings since 16 August 2017. The AWL would require time to reply to any additional evidence that she filed. It is doubtful that that could have been done before 10 October 2017. 9. Second, Mrs Cox has already made an unsuccessful application to restrain the holding of the meeting. In refusing that application, Ward CJ in Eq considered it would be better for the meeting to proceed, for the board to be elected and to deal with any consequences later: Cox v The Animal Welfare League of New South Wales [2017] NSWSC 374. 10. In my opinion, it would not be consistent with that approach if the Court were now to restrain the board on an interlocutory basis from taking any action because it has not been validly elected. Consistently with the approach taken by Ward CJ in Eq, it would be more appropriate to allow events to take their course and for the Court to grant ancillary relief if, ultimately, Mrs Cox is successful in the main proceedings. 11. As to the second way in which Mrs Cox puts her case, I am not satisfied that she has established a prima facie case that the board is biased or that it has already made up its mind to take disciplinary action against her. The only evidence that Mrs Cox points to is friction between her and two of the board members and statements made at the Annual General Meeting of the Far South Coast Branch of the AWL by the CEO and one of the AWL's directors, Ms Richardson. The CEO is alleged to have said that the board had determined that Mrs Cox not be permitted to hold any position on the branch executive, and Ms Richardson is alleged to have said that the board did not have to give reasons for its decision and the decision was a unanimous one. 12. In my opinion, this evidence is not sufficient to establish a prima facie case that the board is incapable of considering impartially the question of whether disciplinary action should be taken against Mrs Cox. 13. In any event, in my opinion, the balance of convenience is against granting an injunction at this stage. No decision has been taken by the board. It is unclear what, if anything, the board will do. No disciplinary action may ever be taken. If it is, there is nothing to prevent Mrs Cox from applying for an injunction restraining the board from giving effect to the decision pending a final resolution of the matter. The Court will be in a better position at that stage to determine whether an injunction should be granted. 14. I do not accept that in adopting that course Mrs Cox will be exposed to the risk of irremediable prejudice to her reputation if the board resolve to take disciplinary action against her. It must already be apparent that there is a dispute between her and the AWL. Any disciplinary action that might be taken is likely to be seen as an incidence of that dispute; and Mrs Cox's reputation within the AWL is more likely to be affected by the ultimate outcome of that dispute rather than a decision of the current board concerning Mrs Cox's conduct in relation to that dispute. 15. For those reasons, in my opinion, the notice of motion should be dismissed. 16. The AWL has been successful in resisting Mrs Cox's application. There is no reason why it should not have its costs if it is ultimately successful in the case. The order that I make is that the costs of the motion should be the defendant's costs in the cause with the intention of course that those costs not be assessed until the proceedings are finally disposed of.