Allen, Francis and Anor v Henderson, Frederick Horatio and Ors

[1983] FCA 83

Re: FRANCIS ALLEN AND LESLIE ALAN SEMPLE PARK
And: FREDERICK HAGGER AND THOMAS HORATIO HENDERSON AND THE BUILDING WORKERS
INDUSTRIAL UNION OF AUSTRALIA
Re: FRANCIS ALLEN AND LESLIE ALAN SEMPLE PARK
And: FREDERICK HAGGER, THOMAS HORATIO HENDERSON, P. SIDERIS, N.G. PARKER, J.P.
FRENCH, K.V. HALL AND THE BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA
Nos. WA 1,2 and 3 of 1983
Conciliation and Arbitration Act 1904
4 IR 100

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Conciliation and Arbitration Act 1904 - application for orders to perform and observe rules of registered organization - suspension and dismissal of branch organizers from "office" within meaning of s.4 of the Act - power to suspend branch organizer - rules of natural justice - bias - compliance with notice requirements of branch rules

Conciliation and Arbitration Act 1904, ss.4, 115(1), 141.

HEARING

PERTH

#DATE 6:5:1983

ORDER

1. In applications Nos. WA 1 and WA 2 of 1983 the respondent Thomas Horatio Henderson perform and observe the rules of the Federal organization by treating as null and void the suspension of the applicants as organizers of the Western Australian Branch of The Building Workers' Industrial Union of Australia on 2 February 1983.

1. In application No. WA 3 of 1983 the respondents Frederick Hagger, Thomas Horatio Henderson, P. Sideris, N.G. Parker, J.P. French and K.V. Hall perform and observe the rules of the Federal organization by treating as null and void the resolution of the committee of management carried at its meeting on 25 February 1983 suspending and dismissing the applicants as organizers of the Western Australian Branch of the Building Workers Industrial Union of Australia.

1. In applications Nos. WA 1 and WA 2 of 1983 the applicants have liberty to apply within 14 days to extend the operation of para.1 of the order to the respondent Frederick Hagger.

1. In application Nos. WA 1 and WA 2 of 1983 and in application No. WA 3 of 1983 the applicants have liberty to apply within 14 days to extend the operation of paras. 1 and 2 of this order to the respondent The Building Workers Industrial Union of Australia.

JUDGE1

There are three applications before the court. Two have been consolidated and, at the request of the parties, the third was heard together with them. To understand the issues raised by the applications it is necessary to say something about the personalities involved.

The Building Workers Industrial Union of Australia, one of the respondents, is an organization registered under the provisions of the Conciliation and Arbitration Act 1904 ("the Act"). I shall refer to it as "the Federal organization". It has a Western Australian branch which I shall refer to simply as "the Branch". The name of the Branch is The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, State Branch of the Building Workers Industrial Union of Australia. The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers is a union registered under the provisions of the Industrial Arbitration Act 1912 of Western Australia. I shall refer to it as "the State union". The State union has no direct involvement in these proceedings but some reference to it is necessary because its affairs and those of the Branch were not always conducted with due regard for the separate corporate existence involved in federal and state registration.

The applicants Francis Allen and Leslie Alan Semple Park are members of the Federal organization and until their suspension and subsequent dismissal each was a Branch organizer. That position is an "office" within the meaning of s.4 of the Act. Each of the applicants is also a member of the State union and is employed by it as an organizer.

Within the Branch the highest governing body is the state council, comprising members of the committee of management and branch councillors (rule 16 of the Branch Rules). State council meets bienially or as specially convened in accordance with rule 16(d).

The executive body of the Branch is the committee of management consisting of the president, two vice-presidents, secretary, assistant secretary and six committee members. Two of the respondents, Frederick Hagger and Thomas Horatio Henderson, are respectively secretary and assistant secretary of the Branch, and as well, hold comparable offices in the State union.

The Federal organization is also a respondent in the consolidated applications. The respondents in the third of the applications are the Federal organization and six members of the committee of management including Mr. Hagger and Mr. Henderson.

Some reference must also be made to another body, the Building Trades Association of Unions of Western Australia, registered in the State Industrial Commission. It is an association of unions concerned with the building trade. It consists of the State union involved in these proceedings, The Plumbers and Gasfitters Employees' Union of Australia, West Australian Branch, Industrial Union of Workers; The Operative Painters and Decorators Union of Australia, West Australian Branch, Union of Workers; The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers; The Operative Plasterers and Plaster Workers Federation of Australia (Industrial Union of Workers) Western Australian Branch; and The Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch.

In February this year there was trouble between Mr. Park and Mr. Allen on the one hand and Mr. Hagger and Mr. Henderson on the other. The trouble sprang from an account opened on 27 May 1981 with the Commonwealth Savings Bank of Australia, James Street branch. This was the bank and branch for financial transactions of the Branch and of the State union. The account was opened in the following name :

"Western Australian Carpenters & Joiners Bricklayers and Stoneworkers Industrial Union of Workers - State Branch BWIU

North West Account".

It will be seen that the account was in the name of the Branch.

The signatories were Mr. Henderson, one of the respondents and Mr. K.M. Burgess, another Branch organizer. Apparently the bank did not require a list of names authorised to operate the account but was content that it be conducted pursuant to authority already given in regard to other accounts of the Branch. This meant that a cheque could be drawn on the account, signed by the secretary or assistant secretary on the one hand and a branch organizer on the other.

The account came about in this way. About May 1981 some of the unions in the Building Trades Association agreed to open an office at Karratha. The purpose was to provide someone on the spot to deal with industrial problems in what was then an area in which a great deal of development was taking place. The State union or Branch (perhaps both) agreed to make one of its then organizers, Mr. G. Young, available for this purpose. It agreed to accept responsibility for Mr. Young's salary and to provide a car for him. All other expenses were to be met from an account to be established to which those unions or branches of federal organizations (again it was not made clear) agreed to contribute on a monthly basis. The Western Australian Cleaners, Caretakers, Lift Attendants, Window Cleaners, Attendants and Watchman's Industrial Union of Workers Union was to make contributions on a more irregular basis as it did not stand to derive the same benefit from the North West office as did the other unions.

To give effect to this arrangement Mr. Henderson opened the account to which I have referred. He could not point to any resolution of the Building Trades Association, the Federal organization, the Branch or the State union expressly authorizing the establishment of the account. Nor was any express authority ever given by any of the bodies concerned to the operation of that account by any particular person.

Mr. Henderson and Mr. Hagger claimed that at all times they regarded the account as relating to the affairs of the Building Trades Association and therefore not an account required to be audited by the Branch as part of its financial operations. The precise status of the account has been the subject of debate before the court and is not easy to characterize. I am satisfied that the account was not and was not intended to be part of the financial operations of the Branch. So far as the Branch was concerned, its relationship was one of a contributor on a monthly basis. It was not strictly a Building Trades Association account since not all members of the Association participated in the North West organization; and one union, the Cleaners and Caretakers Union, which did contribute, was not a member of that Association. Since these proceedings were commenced the name of the account has been changed to "Three Unions North West Account". This more accurately reflects the fact that the account is contributed to and operated for the benefit of the Branch (or State union), the Plumbers and Gasfitters Union and the Operative Painters Union, leaving aside the lesser involvement of the Cleaners and Caretakers Union.

It is not necessary for me to express a firm view as to the precise status of the account. I accept that it was established in good faith by Mr. Henderson, believing that he was thereby giving effect to the agreement made by those unions concerned in the establishment of the North West office. But equally I accept that to give the account its original title led inevitably to a belief on the part of some persons including the applicants and Mr. Rogers, the president of the Branch, that the account was part of the financial operations of the Branch. So viewed it was also inevitable that it would lead to concern on the part of persons connected with the Branch because the account did not feature in the financial transactions which the committee of management was called upon to approve from time to time. Nor did it feature in the audited statement of the affairs of the Branch.

It is against that background that the events of February 1983 must be viewed. It would be unreal not to recognize that there was in any event some illfeeling between the applicants and Mr. Rogers on the one hand and Mr. Hagger and Mr. Henderson on the other. This tended to militate against a situation in which a fuller explanation on the part of Mr. Hagger or Mr. Henderson and a greater willingness to listen on the part of the applicants might have avoided these proceedings.

It seems that some time before February 1983 Mr. Allen and perhaps Mr. Park did countersign one or more cheques drawn on the north west account. But I accept that each had misgivings about the account and I am satisfied that each was genuinely concerned at being called upon to countersign a cheque on an account when the authority to do so was not clear to them. Earlier Mr. Allen had discussions with Mr. Rogers about the account and Mr. Park had approached the Branch's accountant. This had done nothing to lessen their misgivings.

On 24 January 1983 Mr. Park was presented by Mr. Henderson with two cheques drawn on the north west account and asked to sign them. He declined to do so without more information about the account. On 26 January Mr. Park attended a meeting of the committee of management. Although not a member of that committee, organizers were entitled to attend its meetings and, to speak with the permission of the president (Branch rule 23(3)). At that meeting Mr. Henderson reported that some of the organizers had refused to sign cheques and that he (Henderson) wished a direction from the committee of management. It was resolved that

"the organizers be informed that the question of the North West account has been settled by the Committee of Management, and the State Council. Any further refusal to carry out instructions will be considered as a breach of the organizers duties, under the rules and that the Secretary of the Building Trades Association be invited to address the next Committee of Management Meeting".

Before the resolution was passed Mr. Park was given permission to speak. He told the meeting that he was the Branch organizer referred to and that he could not sign cheques unless he was given enough information about them.

On 2 February 1983 Mr. Henderson asked both Mr. Allen and Mr. Park to countersign cheques drawn on the north west account. Mr. Allen said that he was not prepared to do so unless he was satisfied that the payment was proper. Mr. Henderson then produced part of the minutes of the committee of management meeting held on 26 January which included the resolution to which I have referred. He then called upon Mr. Allen to countersign the cheque or be suspended. Mr. Allen replied "I will need to have further information about it". Mr. Henderson then told him he was suspended. On the same day and, it would appear, on the same occasion, Mr. Henderson produced a cheque to Mr. Park drawn on the north west account and asked him to countersign it. Mr. Park said he would not do so unless he knew what it was all about and was then told : "You've refused to sign the cheque. You're suspended".

There was some issue between Mr. Allen and Mr. Park on the one hand and Mr. Henderson on the other as to the precise words used and as to what warning the applicants were given before their suspension. However I am satisfied that each applicant made it clear that he was not arbitrarily refusing to countersign a cheque, rather they he required more information before doing so. I accept that each applicant was genuine in his attitude. And it is a fact that the applicants were never expressly authorised to operate the north west account. Nor was it explained to them, if it be the case, that their authority to operate accounts of the Branch extended to that account. Mr. Allen challenges his suspension on the ground that :

(a) it was contrary to the rules of natural justice in that he was not given notice of nor was he present at the meeting on 26 January 1983 when the resolution was passed, and

(b) his suspension was carried out by an officer of the Branch who was not empowered to suspend an organizer.

Mr. Park challenges his suspension on the grounds that :

(a) it was carried out in a manner contrary to the rules of natural justice,

(b) it was carried out by the assistant secretary of the Branch who was not authorised to suspend a Branch organizer,

(c) there is no power under the Branch rules to suspend a branch organizer, and

(d) the action was carried out without the lawful authority of the state council or committee of management.

There is no substance in the contention by Mr. Allen that he was not given notice and was not present at the committee of management meeting on 26 January 1983. That was not a disciplinary hearing. It was a meeting of the committee at which a view was expressed regarding the duties of organizers and the signing of cheques. That meeting did not purport to suspend anyone.

It is not correct to say that there is no power under the Branch rules to suspend an organizer. Rule 17(n) empowers the committee of management to suspend Branch officers in accordance with that rule and the other rules referred to. But of course it was not the committee of management that purported to suspend either Mr. Allen or Mr. Park on 2 February 1983. It was Mr. Henderson, the assistant secretary, and he did not assert at the time or during this hearing that in suspending the two organizers he was carrying out an instruction given to him by the committee of management or acting pursuant to any delegated authority. As regards the suspension, the question is essentially whether or not Mr. Henderson had power to do what he did.

In my view Mr. Henderson did not have power to suspend either Mr. Allen or Mr. Park. The respondents did not contend that he had express power to do so but they argued that there was an implied power by reason of his position as "senior executive" of the branch. It should be noted that Mr. Henderson was the assistant secretary but it was argued that at the time he was carrying out the duties of secretary. The analogy suggested was with the senior executive of a company. This submission overlooks the true position of an organizer. He is not merely an employee. An organizer is elected to that position for a term of four years pursuant to rule 26 of the Branch rules and he is therefore the holder of an "office" as that term is defined in s.4 of the Conciliation and Arbitration Act. His position is controlled by the rules of the Branch in accordance with the provisions of the Act (Conciliation and Arbitration Regulations reg. 115(1)(d)(iv)). It is true that rule 23(4) provides that organizers "shall be under the direction and control of the Branch Secretary and carry out duties determined by State Council or COM". But I am unable to read into that provision a power in the secretary to suspend an organizer. In my view such a step must be taken by the committee of management or by state council pursuant to the rules.

Mr. Allen and Mr. Park each obtained a rule nisi on 7 February 1983. Thereafter certain events occurred that led to the bringing of the third application.

On 21 February 1983 Mr. Allen and Mr. Park each received notice of a meeting of the committee of management to be held on 25 February 1983. The notice was under the name of Mr. Hagger as secretary, though issued by Mr. Henderson. It recited that at the meeting "the following disciplinary motion will be discussed". It is as well to set out the motion in full :

"Pursuant to the Rules of the Union and particularly rules 17(l); 17(n); 21(a); 21(1); 21(m); 21(r); 22; 23(4); 25 and 29 the Committee of Management is asked to consider and resolve upon disciplinary action against Organisers Brothers Francis Allen and Leslie Alan Semple Park as a result of their refusal on the 2nd day of February 1983 to comply with requests and directions from the Assistant Secretary, Brother Thomas Horatio Henderson such requests relating to the countersigning of cheques properly drawn upon the North West Account and their refusal constituting "knowlingly refusing to comply with the Rules, or the decisions of Council or the Committee of Management, or knowingly refusing to carry out the policy of the Branch" within the meaning of subrule (n) of rule 17 of the Union Rules and thereby being liable to be found guilty of 'a substantial breach of the Rules of the Branch or a gross misbehaviour or gross neglect of duty' within the terms of rule 25 of the Union Rules".

The notice concluded by requesting the recipient to attend the meeting, which he might address in his own defence and where he might present such evidence as he and the committee of management might consider appropriate. It concluded with notice that, should the recipient not attend, the committee might hear evidence and determine the matter "in accordance with the Rules of the Union notwithstanding your absence".

Despite the reference to rules of the union, the matter proceeded before this court on the basis that it was the Branch that was concerned.

Neither Mr. Allen nor Mr. Park attended the meeting. There are before the court the minutes of what was described as a special committee of management meeting held on 25 February 1983. The accuracy of those minutes was not contested although the respondents did not contend that they reflected all that was said. Present at the meeting were Mr. Rogers (president) as chairman, Mr. Sideris (vice-president), Mr. Hagger (secretary), Mr. Henderson (assistant secretary), all of whom were members of the committee ex officio. The committee also comprises six committee members five of whom - Messrs. Hall, French, Thistlewaite, Withnall and N.G. Parker - were present. The remaining member of the committee, Mr. Fisher, was not notified of the meeting, the reason given by Mr. Henderson and Mr. Hagger being that he had been in the country for some time and that notices of previous meetings had been returned unclaimed. There was some dispute as to how long Mr. Fisher had been away from Perth and whether he would have received a notice sent to him. Mr. Fisher did not give evidence and in the end I do not think that particular aspect is of much importance. The respondents acknowledged that no notice was sent to Mr. Fisher. The other person entitled to be present as a member of the committee was Mr. D.C. Parker, the other vice-president, whose apology was received.

When the meeting began Mr. Rogers commented that it had been called contrary to the provisions of the rules of the organization and of the union. He added :

"Therefore, it is my duty, as the elected Branch President to disallow this meeting to proceed.

I formerly (sic) declare the meeting closed".

The point of Mr. Roger's comment was that rule 27 of the Branch rules provides that the committee of management shall meet at least once in each three months. Rule 17(l)(1) reads :

"(1) A special meeting of the COM may be called by the Branch President and Branch Secretary when requested in writing by at least three members of the COM".

On Saturday 19 February Mr. Henderson showed Mr. Rogers a document described as "notice of demand for a special meeting of the committee of management", calling upon the Branch president and Branch secretary to convene such a meeting to consider a motion in terms similar to the notice received by Mr. Allen and Mr. Park. The notice of demand was signed by Messrs. French, Parker and Hall, three committee members. Mr. Rogers declined to sign the notice, taking the view that it was within his discretion so to do. Nevertheless, Mr. Henderson caused notice of the meeting in the name of the secretary to be sent to each member of the committee of management, together with a copy of the notice of demand with the motion attached thereto.

On the motion of Mr. Hagger, seconded by Mr. Hall, it was resolved (6 for and 3 against) that the president's declaration be overruled "and that the meeting as constitutionally notified proceed". Mr. Sideris took the chair.

The minutes record that the state secretary

"then addressed the Committee of Management on the subject of the special meeting, and gave a report on events leading up to the Suspension of Bro. F.M. Allen and Bro. L. Park. He read extracts from the BWIU Minute Book, referring to the North West activity and progress associated with the Pilbarra (sic) Projects".

The conclusion I draw from the evidence is that while Mr. Hagger did address the meeting as recorded, the principal account of events was given by Mr. Henderson who, although assistant secretary, appears to have played the leading role in these events. This may have been due in part to the fact that Mr. Hagger had been ill and that at the time the secretarial duties were being performed largely by Mr. Henderson.

A resolution was then distributed to those present and was passed by six members to one. Again I think it necessary to set out this resolution in full :

"RESOLUTION BY COMMITTEE OF MANAGEMENT
The Committee of Management at a duly convened special meeting notice of which had been given to the members thereof and to Organisers Brothers Francis Allen and Leslie Alan Semple Park and having heard and considered the evidence placed before it hereby resolves:

1. That Brothers Francis Allen and Leslie Alan Semple Park be and hereby are suspended without pay from their duties as Organisers as from 9.25 a.m. on the 2nd day of February 1983 until 6.22 p.m. on this day the 25th day of February 1983 and further that from 6.22 p.m. this day the said Brothers be and hereby are dismissed from their positions as Organisers of this Union; and

2. That pursuant to item 1 of this resolution the said Brothers Francis Allen and Leslie Alan Semple Park be ordered and directed to return to the Secretary within 24 hours all Union credentials and Union property including Union right of entry cards, credit cards and keys.

3. That the Committee of Management approves of, endorses and ratifies the actions of the Secretary and Assistant Secretary in temporarily suspending Brothers Francis Allen and Leslie Alan Semple Park as from 9.25 a.m. on the 2nd day of February 1983 in the interests of the proper administration of the Branch and its office; and

4. The Committee of Management being concerned for the welfare of workers and their families and in particular the families of Brothers Francis Allen and Leslie Alan Semple Park hereby directs the Secretary to pay to the said Brothers Francis Allen and Leslie Alan Semple Park out of Union funds a sum of money equal to their wages lost as a result of the suspension ordered in item 1 hereof such payment being made without prejudice and entirely ex gratia on the part of the Union".

The applicants challenge the validity of the decision dismissing them as organizers of the Branch. They do so on a number of grounds, some of which may conveniently be dealt with together.

The applicants contend that, in the light of Mr. Rogers' refusal to call the meeting held on 25 February, there had been a failure to comply with rule 17(l)(1) of the Branch rules. The respondents argue that the word "may" in that sub-rule must be read as "shall". They point to the difficulties that can arise if the rule is not so read, especially if it is the conduct of the president or secretary or both that is being called in question. By their refusal to call a meeting, it was said, they could stultify any action proposed to be taken against them.

I am unable to read "may" as "shall" simply because of consequences that may otherwise ensue. Rule 17 itself is replete with the use of "shall" and I see no reason why the shift in language to "may" in sub-rule (1) should not be recognised. However, it does not follow that on a request by at least three members of the committee of management, a meeting called by the Branch secretary, without the concurrence of the Branch president, is inevitably invalid. The committee of management sits as a domestic tribunal although its proceedings are controlled by its rules and those rules must meet the criteria imposed by the Conciliation and Arbitration Act. On the other hand, although a domestic tribunal, it may deal with the livelihood of persons elected to office by members of the Federal organization. I regard as applicable the statement by Megaw L.J. in Reg. v. Hull Visitors, ex parte St. Germain (1979) 1 QB 425 at pp.450-451. Referring to proceedings of boards of visitors in respect of offences against discipline, his Lordship said :

"It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly - fairly, having regard to all relevant circumstances - and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely a technical, injustice, which was capable of remedy".

Failure to obtain Mr. Rogers' concurrence to the holding of the meeting on 25 February 1983 was a breach of the Branch rules. When considering the validity of the action taken by the committee of management and whether this court should interfere with that decision, the absence of Mr. Rogers' concurrence is a relevant but by no means conclusive consideration.

The applicants further contend that they were not given the requisite notice of the meeting. In advancing argument on this point, counsel for the applicants relied upon the rules of both the Federal organization and the Branch.

I do not regard the rules of the Federal organization as at all relevant on this point. It is true that rule 25 of those rules makes the rules of the Federal organization binding on all branches and that rule 27 proscribes branches from making rules inconsistent with the rules of the Federal organization. But in my view there is no inconsistency involved; nor is there anything in the rules of the Federal organization dictating the period of notice to be given for the calling of the meeting of the committee of management held on 25 February. Counsel for the applicants pointed to rule 15 sub-rule 9 of the federal rules where provision is made for the imposition of a penalty against officers of the Federal organization but only after an officer has been summoned to attend a meeting at least 7 days prior thereto. But rule 15 is concerned with the functions and powers of the national conference which is the supreme governing body of the Federal organization. It is not warranted to import a rule controlling the operations of the national conference into a branch rule concerned with the conduct of the committee of management.

Rule 17 of the Federal organization deals with the composition and powers of the national executive which is the executive body of the Federal organization. Sub-rule 21 para. (i) provides that the national executive may :

"Ensure that . . . Branches carry out the rules and decisions of the union and subject to rule 19 impose penalties, (i.e. fines not exceeding the sum of twenty dollars, suspension, expulsion or dismissal from office), on officers . . . for knowingly refusing to comply with the rules or the decisions of the National Conference or the National Executive".

That same paragraph provides that no penalty shall be imposed unless an officer has been summoned to attend the meeting seven days prior thereto. But a reading of para. (i) makes it clear that the reference to the imposition of penalties is where an officer is charged with a breach of the rules or decisions of the national conference or national executive. Again I am unable to import the procedural requirements of that paragraph into a Branch rule concerned with the activities of the committee of management.

Any requirement for notification applicable to the meeting of 25 February 1983 must be found in the rules of the Branch. And it is to be found in rule 29(d). To understand rule 29, some reference should be made to rule 25 which provides that an officer may be removed from office by majority decision of the committee of management provided that he shall not be dismissed unless he has been found guilty, in accordance with the rules of the Branch :

"(i) of misappropriation of the funds of the Branch;

(ii) or a substantial breach of the Rules of the Branch;

(iii) or a gross misbehaviour, or gross neglect of duty;

(iv) or has ceased, according to the Rules of the union to be eligible to hold office."

Rule 25 continues with a provision that any officer so removed shall have a right of appeal to the state council. That rule says nothing about the procedures to be followed before an officer of the branch may be removed from office. But rule 17(n) empowers the committee of management "Provided rules 25 and 28 are adhered to", to suspend, expel or dismiss from office a branch officer "for knowingly refusing to comply with the Rules, or the decisions of Council or the Committee of Management, or knowingly refusing to carry out the policy of the Branch". Rule 25 has already been mentioned. Rule 28 is concerned with the duties of members and appears to have no relevance to the matter of disciplinary action against organizers. Counsel accepted that what was intended was a reference to rule 29 dealing with the misconduct of members.

Rule 29(d) provides that charges under "these Rules" (which in any event is wide enough to draw in rule 25) shall be made in writing and the member so charged shall be summoned to attend a meeting of the committee of management by written notice "giving the short substance of the charges and notifying the time and place of meeting". Sub-rule (d) continues :

"Such notice shall be posted to his last known place of abode not less than five (5) days . . . before the date of such meeting".

Counsel for the applicants contends that this is a requirement of 5 clear days notice. Counsel for the respondents argues that the day of posting notice and the day of the meeting can both be taken into account for the purpose of calculating the period of 5 days.

In my opinion the expression "not less than five (5) days" means 5 clear days. See Ayres v. Chacos (1972) 19 FLR 468 and the authorities referred to therein. That means 5 days exclusive of the date of posting the notice and of the day of the meeting. In their joint affidavit filed in support of the third application, Mr. Allen and Mr. Park deposed to receiving notice of meeting on 21 February. It would seem that this was a reference to the handing of the notice to each of them by Mr. Henderson on that day. Notice was in fact posted to each of them on 20 February. In either case there was a failure to give the applicants the requisite 5 clear days notice of meeting.

Failure to comply with this rule is a matter of importance. But again, in the context of a domestic tribunal, it does not provide a conclusive reason for the court setting aside a decision of that tribunal. It is a matter to be taken into account in considering the fairness of the proceedings.

The applicants further contend that the notice of meeting did not give them information regarding the charge they had to meet. I do not accept this. The notice makes it clear that it was alleged against the applicants that they had refused on 2 February 1983 to comply with requests and directions from Mr. Henderson to countersign cheques on the North West account and that their refusal was in contravention of rule 17(n) of the Branch rules.

It is then said that the notice of meeting presumed the guilt of the applicants and that the committee of management had already determined that they were guilty. That second contention is based upon a circular issued under the name of Mr. Hagger as state secretary, and sent to sub-branch secretaries and job delegates before the meeting. The circular certainly makes clear the views of its author and it can hardly be said that he could approach the meeting with an open mind.

The notice of motion is not formulated as a charge, that is it does not make allegations against the applicants. Rather it calls upon the members of the committee "to consider and resolve upon disciplinary action" against them as a result of their refusal to comply with the requests and directions of Mr. Henderson and their refusal to comply with the rules, "thereby being liable to be found guilty" of a substantial breach of the rules or gross misbehaviour or gross neglect of duty within rule 25.

The way in which the notice of motion is couched is open to criticism, a criticism which is not disposed of by saying that the notice was prepared by laymen who may not have appreciated all the nuances involved. It was in fact prepared by the Branch's legal advisers. It would be too strong to say that it assumes the guilt of the persons charged, although it goes close to doing so.

The last ground of attack upon the decision of the meeting of 25 February is that the decision was contrary to the principles of natural justice. This is in part a catchall in so far as the various grounds already discussed may be seen as aspects of natural justice. But, as a ground in its own right, it is largely directed at the participation of Mr. Hagger and Mr. Henderson at the meeting and their conduct in voting for the dismissal of Mr. Allen and Mr. Park.

The applicants concede that Mr. Hagger and Mr. Henderson were entitled to be at the meeting, not only because it was they who were presenting the case against the applicants but because they were members of the committee of management. But, it was said, having presented that case they should not have participated in the decision to dismiss the applicants. The resolution dismissing the applicants was passed by six votes to one so that, in one sense, the vote of Mr. Hagger and Mr. Henderson was not crucial. Nevertheless, it is not submitted by the respondents that that fact was enough to answer any other criticisms that might properly be made of the decision.

It may be accepted that, in the context of disciplinary proceedings taken by a registered organization against a member, the mere fact that a member lays a charge and then by virtue of his office sits as a member of the tribunal to hear the charge does not of itself vitiate proceedings. Campbell v. Higgins (1957) 3 FLR 317. But that is not the gravamen of the applicants' complaint. It is their submission that by reason of their active part in the events giving rise to the suspension of Mr. Allen and Mr. Park on 2 February 1983, their initiative in the calling of the meeting of 25 February and the formulation of the charges against the applicants, and their very direct participation in the meeting of 25 February, Mr. Hagger and Mr. Henderson had prejudged the outcome of that meeting; that they came to the meeting with an invincible bias against the applicants and that they should have done no more than speak as to the facts on which the committee was required to come to a decision.

I accept that submission. Mr. Henderson and Mr. Hagger were not only accusers in a formal sense. Mr. Henderson, in particular, was the very person who had suspended or purported to suspend the applicants; the acceptance of his account of those events was essential before any charges could be established against the applicants. The circular to which I have already referred, sent to sub-branch secretarites and job delegates, not merely presents the case against the applicants but makes clear the view of the author that the applicants have breached the rules and that their suspension was warranted. Added to this is the role played by Mr. Henderson and Mr. Hagger in the calling of the meeting and the formulation of charges against the applicants. I stress that I regard those aspects of their conduct as no more than a link in the chain. If nothing else emerged it would be wrong to criticise the secretary and assistant secretary from taking a step which was a logical one for someone in their positions to take.

But it is clear that at the meeting of 25 February Mr. Hagger and Mr. Henderson did not confine themselves to a report on objective facts but were in truth arguing the case for the dismissal of the applicants. In the totality of those circumstances they assumed the roles of prosecutors, witnesses, advocates and judges. They should not have done so and there was a denial of natural justice to the applicants. See Australian Workers' Union v. Bowen (No. 2) (1947) 77 CLR 601, Cleworth v. Barrow (1978) 20 ALR 359. The other breaches of rules add strength to this conclusion.

In all the circumstances it would have been better for the charges against the applicants to be heard by state council and for the roles of those participating to be clearly defined. There is a right of appeal to state council from the decision of the committee of management. The applicants did not exercise that right but the respondents did not submit that this stood in the way of the relief the applicants were seeking.

I am satisfied that in terms of s.141 of the Act there was a failure on the part of Mr. Henderson to observe the rules of the Branch in suspending the applicants on 2 February 1983. I am also satisfied that there was a failure on the part of the members of the committee of management to observe the rules and the requirement of natural justice in dismissing the applicants on 25 February 1983.

The respondents have not complained of the presence of the Federal organization itself as a respondent although doubt has been expressed whether an organization, as distinct from individual officers, may be the subject of an order under s.141 of the Act. The matter was discussed by Joske J. in Egan v. Harradine (1975) 6 ALR 507 at pp.523-524. In the circumstances I do not propose to make any order against the organization but I shall give the applicants an opportunity to apply for such an order. Also I am not satisfied that an order against Mr. Hagger is appropriate in the consolidated applications but the applicants will have liberty to apply on that matter as well.

The order of the court will be as follows : 1. In applications Nos. WA 1 and WA 2 of 1983 the respondent Thomas Horatio Henderson perform and observe the rules of the Federal organization by treating as null and void the suspension of the applicants as organizers of the Western Australian Branch of The Building Workers' Industrial Union of Australia on 2 February 1983.

2. In application No. WA 3 of 1983 the respondents Frederick Hagger, Thomas Horatio Henderson, P. Sideris, N.G. Parker, J.P. French and K.V. Hall perform and observe the rules of the Federal organization by treating as null and void the resolution of the committee of management carried at its meeting on 25 February 1983 suspending and dismissing the applicants as organizers of the Western Australian Branch of the Building Workers Industrial Union of Australia.

3. In applications Nos. WA 1 and WA 2 of 1983 the applicants have liberty to apply within 14 days to extend the operation of para.1 of the order to the respondent Frederick Hagger. 4. In application Nos. WA 1 and WA 2 of 1983 and in application No. WA 3 of 1983 the applicants have liberty to apply within 14 days to extend the operation of paras. 1 and 2 of this order to the respondent The Building Workers Industrial Union of Australia.