Armstrong, Jan v Elliot, Rob
[1997] FCA 553
•25 JUNE 1997
CATCHWORDS
INDUSTRIAL LAW - registered organisations - performance and observance of rules - rule to show cause - application by branch to observe rules by treating as null and void and of no effect a resolution of the National Executive that no union resources be used in the bringing of legal proceedings against former assistant branch secretary - application for interim relief - balance of convenience
Workplace Relations Act 1996 s209
Nicholson v Pitt& Ors (unreported, IRCA, Marshall J, 15 November 1995)
JAN ARMSTRONG -v- ROB ELLIOTT, MICHAEL WILLIAMSON, KAYE DARVENIZA, PETER CLAPHAM, ROS HARVEY, IRIS KNIGHT, MARGARET BARRETT, KAYE CAHILL, KATHY JACKSON, SAM EICHENBAUM, BRADFORD GOULDING, MICHAEL HALL, DANIEL HILL, JEFFREY JACKSON, WILLIAM MASSEY, WILLIAM MILES, ZITA MITCHELL, DONALD MURPHY, JORGE NAVAS, STEPHEN POLLARD, JUDY RICHMOND, KIM RYAN, GREGORY ROGERS, CRAIG THOMSON, ALBERT TOLLEY, LLOYD WILLIAMS
VG 273 of 1997
Before: MARSHALL J
Place: PERTH (heard in Melbourne)
Date of hearing: 19 JUNE 1997
Date of judgment: 25 JUNE 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )
No. VG 273 of 1997
BETWEEN: JAN ARMSTRONG
ApplicantAND:ROB ELLIOTT, MICHAEL WILLIAMSON, KAYE DARVENIZA, PETER CLAPHAM, ROS HARVEY, IRIS KNIGHT, MARGARET BARRETT, KAYE CAHILL, KATHY JACKSON, SAM EICHENBAUM, BRADFORD GOULDING, MICHAEL HALL, DANIEL HILL, JEFFREY JACKSON, WILLIAM MASSEY, WILLIAM MILES, ZITA MITCHELL, DONALD MURPHY, JORGE NAVAS, STEPHEN POLLARD, JUDY RICHMOND, KIM RYAN, GREGORY ROGERS, CRAIG THOMSON, ALBERT TOLLEY, LLOYD WILLIAMS
Respondents
CORAM: MARSHALL J
PLACE: PERTH (heard in Melbourne)
DATE: 25 JUNE 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application for interim relief is dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )
No. VG 273 of 1997
BETWEEN: JAN ARMSTRONG
ApplicantAND:ROB ELLIOTT, MICHAEL WILLIAMSON, KAYE DARVENIZA, PETER CLAPHAM, ROS HARVEY, IRIS KNIGHT, MARGARET BARRETT, KAYE CAHILL, KATHY JACKSON, SAM EICHENBAUM, BRADFORD GOULDING, MICHAEL HALL, DANIEL HILL, JEFFREY JACKSON, WILLIAM MASSEY, WILLIAM MILES, ZITA MITCHELL, DONALD MURPHY, JORGE NAVAS, STEPHEN POLLARD, JUDY RICHMOND, KIM RYAN, GREGORY ROGERS, CRAIG THOMSON, ALBERT TOLLEY, LLOYD WILLIAMS
Respondents
CORAM: MARSHALL J
PLACE: PERTH (heard in Melbourne)
DATE: 25 JUNE 1997
REASONS FOR JUDGMENT
This is an application for interim relief in proceedings which were commenced by a rule to show cause, granted on 11 June 1997, calling upon the respondents to perform and observe the rules of the Health Services Union of Australia (“HSUA”) by treating as null and void and of no effect a resolution of the National Executive made on 1 May 1997. The contents of the resolution are set out later in these reasons.
BACKGROUND
The parties and the rules
The applicant, Ms Armstrong is the Branch Secretary of the Victoria No. 1 Branch of HSUA (“the Branch”). HSUA is an organisation registered under the Workplace Relations Act 1996 (“the Act”). The respondents comprise the vast majority of the members of the National Executive of HSUA. The first respondent, Rob Elliott, is the National Secretary of HSUA. Pursuant to rule 21 of the rules of HSUA the National Council is “... the supreme governing body of the Union ...” and has “... the management and control of the affairs of the Union ...”. Rule 27 vests the management of the affairs of HSUA between meetings of National Council in the National Executive, “... subject to (the) rules and to the decisions of National Council...”.
Rule 44 provides as follows:
“44 - RIGHTS OF BRANCHES
(a)All Branches shall be completely and absolutely autonomous within the ambit of these Rules, and shall be responsible for their own Government and administration. The Branch shall be the basic unit of the Union, and shall possess full and adequate powers to conduct its own affairs and to seek its objectives under the Rules. The control of the Branch resides exclusively in the members of the Branch, who shall be bound by these Rules. This Rule can never be altered except by a ballot of all financial members of the Union. Such alteration to be carried must receive a majority vote of two-thirds of the financial members of the Union.
(b)Subject to the Rules, or Federal Policy, nothing shall alienate the right of members assembled in the General Meeting to determine the policy of the Branch. The decision of properly constituted General Meetings shall be binding on all members of the Branch.
(c)Where the National Council is satisfied that a Branch has failed to carry out these Rules of the Rules of the Branch or to comply with the requirements of any Industrial Arbitration Law or of any Industrial Registrar, it shall have power to call a general meeting of financial members of that Branch and to take such steps as may be necessary to enforce due compliance with the Rules and/or the law.”
Rule 47(a) provides that:
“(a)The Government, management and the control of the affairs of each branch shall, subject to these rules and any proper direction of the National Council or the National Executive be vested in a Branch Committee.”
Rule 55 provides that:
“55 - BRANCH SECRETARY
The Secretary shall be the chief executive officer of the branch and subject to these Rules, have charge of the general conduct, administration and business, of the branch. He/she shall be the investigating and organising officer of the branch and shall be the officer to sue and to be sued on behalf of the branch. The Secretary shall be ex-officio, a member of all committees and Sub-Committees of the branch. ”
Rule 57 provides that:
“57 - BRANCH TRUSTEES
The Branch Trustees shall invest the funds of the branch and otherwise deal with the property and funds of the branch as they may from time to time be directed by the Branch Committee.”
The Facts
In or about August 1995, Mr Jeff Jackson resigned his office as Assistant Secretary of the Branch. On 27 February 1996, the Branch Committee of Management resolved “to instruct solicitors to bring proceedings against J. Jackson for recovery of monies owed to the union”. On 14 May 1996 proceedings were issued in the name of the Branch against Mr Jackson in the Melbourne Magistrates Court (“the Magistrates Court”). The Branch claimed that Mr Jackson had wrongly claimed expenses and had removed certain property of the Branch and had failed to return such property. The proceeding was discontinued after solicitors for Mr Jackson filed a Defence submitting that the Branch was not a juristic person. A fresh complaint was issued in the Magistrates Court on 26 June 1996. The plaintiffs in the new proceeding are Ms Armstrong and the Branch Trustees, Mr Gillespie and Mr Carroll. A notice of defence was filed by solicitors acting for Mr Jackson on 8 July 1996. A pre-trial hearing occurred at the Magistrates Court on 15 October 1996 when the matter was adjourned for mention on 21 January 1997. On 4 April 1997, the matter was fixed for hearing on 7 July 1997.
After the Branch Committee resolution, but prior to the issuing of the first proceeding in the Magistrates Court, the National Executive, on 21 March 1996, resolved to instruct Mr Elliott to hold an investigation into the matters raised against Mr Jackson and to report back to National Executive after his investigation. Ms Armstrong declined an invitation by Mr Elliott to participate in the investigation. On 24 October 1996, Mr Elliott delivered a written report to National Executive in which he outlined the results of his investigation. The report effectively exonerated Mr Jackson in relation to the matters raised against him by Ms Armstrong.
On 1 May 1997 the National Executive resolved as follows:
“In light of the exoneration of Jeff Jackson in respect to any suggestion of impropriety or improper dealing with the resources of the Union (see minutes of National Executive meeting October 1996), National Executive hereby resolves:
1.to confirm that Jeff Jackson owes the union neither monies nor any property,
2.to confirm that no legal action by the Union is being taken or is to be taken against Jeff Jackson in the Victorian Magistrates Court or elsewhere for the recovery of monies or property,
3.to direct that any action purportedly being brought in the name of the Union against Jeff Jackson be struck out,
4.and that no Union resources be used in the bringing of any legal action against Jeff Jackson in the Victorian Magistrates Court or elsewhere by any person (corporate or actual person) including any officer of the HSUA or branch thereof for the recovery of monies or property.”
This resolution is sought to be impugned by the rule to show cause. The interim relief sought by Ms Armstrong is that the respondents treat the resolution as being of no effect pending the hearing and determination of the rule to show cause.
THE COMPETING CONTENTIONS
Mr Howells, of counsel, who appeared for Ms Armstrong submitted that there was a serious question to be tried in the proceeding. That question concerns the ability of the Secretary of the Branch to sue on behalf of the Branch for the purpose of defending the Branch fund without the Branch’s autonomy being infringed by the National Executive. Mr Kenzie, QC, who appeared for Mr Elliott, did not seek to pursuade the Court that there was no serious issue to be tried. The competing contentions of counsel concerned the balance of convenience. On that issue Mr Howells contended that if no interim relief was granted and Ms Armstrong and the trustees continued their proceedings in the Magistrates Court, they might be subject to disciplinary charges under the rules of HSUA. Mr Kenzie contended that the balance of convenience did not lie in Ms Armstrong’s favour. He referred to the fact that Ms Armstrong had delayed some six weeks from the making of the resolution before seeking relief in this Court. He also referred inter alia to Ms Armstrong’s refusal to co-operate with the investigation carried out by Mr Elliott into the matters raised against Mr Jackson.
CONCLUSION
As discussed in Nicholson v Pitt& Ors, (unreported, IRCA, Marshall J, 15 November 1995) the role of the Court in the context of an application for interim relief in a proceeding under s209 of the Act is to do justice as best it can and make a decision which is the fairest and most convenient temporary arrangement pending a full trial of the proceeding.
In my view, justice is best served in the circumstances by the Court refusing to grant interim relief. If interim relief is granted and the Magistrates Court proceedings continue unencumbered by the National Executive resolution of 1 May 1997, the effect of the resolution would be severely impaired without the Court having an opportunity to test its validity at trial. If interim relief is not granted it is a matter for Ms Armstrong and the trustees to determine whether they wish to proceed with their case in the Magistrates Court on 7 July 1997. I agree with the submissions made by Mr Kenzie that the prospect of Ms Armstrong and the trustees facing disciplinary action under the rules for pursuing the Magistrates Court proceedings is remote. They would only face the prospect of being removed from their offices pursuant to charges which would be heard by the Branch Committee of Management, being the very body of persons which unanimously endorsed the taking of proceedings in the Magistrates Court. In my view, the chance of adverse consequences applying to Ms Armstrong and the trustees under the rules pending the hearing and determination of the rule to show cause is slight. Further, the Court has received no cogent explanation for Ms Armstrong’s delay in seeking a rule to show cause in this Court or the Industrial Relations Court of Australia whilst that Court had the requisite jurisdiction. An earlier seeking of the rule might have enabled the final determination of the entire proceedings under s209 of the Act well before 7 July 1997.
In circumstances where an applicant seeks interim relief which is identical to the final relief sought, the Court should be reluctant to grant such relief unless a clear case is made out for such relief. I do not believe that a clear case for interim relief has been established in the instant circumstances. I reject the application for interim relief. A directions hearing in the proceeding will occur at 10.15 am on 7 July 1997.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of his Honour Justice Marshall.
Associate:
Dated: 25 June 1997
APPEARANCES
Counsel for the Applicant: S Howells
Solicitor for the Applicant: Holding Redlich
Counsel for the first Respondent: R Kenzie QC
Solicitor for the first Respondent: Slater and Gordon
There was no appearance for the other respondents
Date of hearing: 19 June 1997
Date of judgment: 25 June 1997
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