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Raue v Morris nears the end

John Gooding reports on the final day of proceedings in the NSW Supreme Court.

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The last day of Raue v Morris ended on Friday afternoon, with the legal counsel of both parties giving their closing submissions. The final decision of the Supreme Court of New South Wales could be delivered as early as tomorrow, but may be left for the New Year.

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Earlier this year the Vice President of the University of Sydney Union Tom Raue provided Honi Soit with information from a confidential report authored by the University of Sydney Union. This provoked the President of the USU, Hannah Morris, along with Honorary Secretary John Harding-Easson and Honorary Treasurer Sophie Stanton, to move a motion to expel Raue. This in turn led Raue to apply for an interlocutory injunction, which triggered legal proceedings that have dragged on for over two months.

Morris said she could not comment on the case directly as it is still ongoing. At the time of publication Raue said he could not respond to our questions as he had not received advice from his lawyer regarding our enquiries.

Throughout the case the main points of contention have been whether Raue’s actions constituted misconduct serious enough for the board to be able to expel him and whether the board has the constitutional power to expel Raue at all.

There were no witnesses left to examine following previous sessions before the court. As such the day was reserved for closing submissions. Raue was represented by Lisa Doust, whilst Morris and the other defendants (with the exception of Bebe D’Souza) were represented by junior counsel David Robertson. The case was presided over by Justice Geoffrey Bellew.

The USU constitution specifies situations where a board director may cease to hold office (such as through resignation or missing six board meetings in any one year). Doust argued that the USU has no explicit ability to expel a director of the board, as there is no mention of removing a director by way of a vote from other directors.

As such, Doust claimed that the board would need to alter the constitution with a two-thirds majority at an Annual General Meeting or a referendum of at least four thousand members to grant the board such a power. She argued for the prospect of a democratic resolution.

However, the constitution does specify that a director ceases to hold office if they cease to be a member of the union. There is also a clause within the constitution that allows the board to expel a member if they are, in the opinion of the board, “guilty of misconduct”. Robertson argued that through this mechanism the board is able to constitutionally expel directors by expelling them as members.

In response to Robertson’s argument, Doust argued that if any of the 13,000 ordinary members of the USU had come across the report by chance and had disseminated the information in a similar way to Raue, their actions would not justify expulsion due to misconduct.

Robertson also suggested that the USU is not an entirely democratic entity, given the University of Sydney Senate’s level of discretion over USU activities. The Senate has the power to appoint two directors to the board and veto any proposed changes to the constitution.

When asked about the notion that the USU is not democratic, Morris said that the power of the Senate to veto constitutional changes is “rarely used, and to my understanding [is] simply a safeguard against corruption and fraud.”

Whether or not Raue had committed a breach of confidence, and thus an act of serious misconduct, was also a matter of debate. Doust posited that that individual quote from the NSW police officer was not information related to the USU at all, and thus could not feasibly be considered confidential information even though it was contained within a confidential report.

Robertson argued that even if the quote was not confidential information, Raue had still committed a breach of confidence by revealing the existence of the report in the first place. Robertson also argued that Raue was clearly aware of this notion, as the Honi Soit article in question referred to the report as ‘confidential’.

No board directors apart from Raue himself were present.

(Disclosure: the author of this article is a member of the USU. He’s mostly in it for the beer.)

(Correction 24/12/13: This article originally stated that David Robertson was senior counsel and that he was representing Bebe D’Souza.)