Bingham, W.M. v Gallagher, N.L

Re: WILLIAM MARTIN BINGHAM
And: NORMAN LESLIE GALLAGHER; THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES'
AND BUILDERS' LABOURERS' FEDERATION and DAVID PILLAR
Nos. V.8 and V.11 of 1985
Industrial Law
11 IR 457

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Burchett J.

CATCHWORDS

Industrial Law - prescribed convictions - eligibility to be candidate or for office - interim holding of office pending hearing - effect of appeal against conviction - Court's discretion - interlocutory relief.

Conciliation and Arbitration Act 1904, ss.132B, 132C, 132D, 132E, 132F, 132G, 132H.

Re Magna Alloys & Research Pty. Ltd. (1975) 1 ACLR 203

Re Ferris (1983) IR 342

Commissioner for Railways (NSW) v. Cavanough (1935) 53 CLR 220

Z v. AZ and AA-LL (1982) QB 558.

HEARING

MELBOURNE
#DATE 3:9:1985

ORDER

That the Thirdnamed Respondent not declare in any manner whatsoever the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order.

That the First, Second and Thirdnamed Respondents be restrained from by themselves or by any agent declaring or announcing or taking any steps to declare or announce or confirm any declaration or announcement of the poll for the position of Branch Secretary of the Victorian Branch of the Secondnamed Respondent, the Australian Building Construction Employees' and Builders' Labourers' Federation until further order.

That the Secondnamed Respondent, by itself, its officers, agents and employees, be restrained from calling on or inviting the Thirdnamed Respondent or any other person appointed Victorian Branch Returning Officer of the Secondnamed Respondent to declare in any manner whatsoever the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order.

That the Secondnamed Respondent, by itself, its officers, agents and employees, and its Branch Executive Committee, be restrained from convening, fixing, summoning or holding a Special Meeting or an ordinary meeting of the Victorian Branch of the Secondnamed Respondent, a purpose or the business of which is to declare the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order.

That the Firstnamed Respondent be restrained from summoning or fixing or causing to be summoned or fixed a special meeting or an ordinary meeting of the Victorian Branch of the Secondnamed Respondent, a purpose or the business of which is to declare the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order.

I release the Respondent David Pillar from his undertaking
to the Court, upon condition that he comply with the orders of the Court so far as they relate to him.

I reserve leave to the respondents to apply for dissolution of these injunctions or any of them on three days notice.

I reserve any question under s.132H(2), in respect of Mr. Bingham's costs, till the final determination of his application.

JUDGE1

By sections 132B to 132J inclusive of the Conciliation and Arbitration Act 1904, a legislative policy is implemented, comparable with that long established in respect of directors promoters and managers of companies, to protect organizations and the public against office-holders with certain sorts of recent criminal records. The criminal offences the subject of these provisions are referred to as "prescribed offences", and include, among others, "an offence under a law of the Commonwealth, of a State, of a Territory, or of another country, involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than three months" (s.132F(1)(a)). A conviction will be sufficiently recent for the provisions to operate upon it during a period of five years since the conviction or, if a term of imprisonment was served, since the convicted person's release from prison.

The legislation recognizes that, notwithstanding his recent prescribed offence, a person may be able to show he ought not to be barred from office, or ought to be barred only for a lesser period than five years. Accordingly, jurisdiction is given to the Court, which includes power to grant leave to such a person to continue to hold an office, or to become or continue to be a candidate for election, or to be appointed to an office, in an organization. The Court is required, by s.132E, to have regard to:

"(a) the nature of the prescribed offence;

(b) the circumstances of, and the nature of the person's involvement in, the commission of the prescribed offence;

(c) the general character of the person;

(d) the fitness of the person to be involved in the management of

organizations, having regard to his conviction of the prescribed offence; and

(e) any other matter that, in the opinion of the Court, is relevant."

The Court is also given a separate power, by s.132B(5), to make declarations whether a person is not, or was not, eligible to be a candidate, or to be elected or appointed to an office.
But the Court's jurisdiction is not to be regarded as narrowly confined in either type of application. S.132G confers a jurisdiction on the Court "with respect to matters arising under" the sections (ss.132B, 132C and 132D) dealing with grants of leave and declarations.
As Bowen C.J. in Equity (as he then was) pointed out in Re Magna Alloys & Research Pty. Ltd. (1975) 1 ACLR 203 (a decision which Morling J. applied to the provisions presently under consideration in Re Ferris (1983) 4 IR 342), the Companies provisions proceeded on the basis that a relevant conviction should be a bar to office unless the person concerned could show that, notwithstanding that conviction, a discretion should, by way of exception in his case, be exercised in his favour. Although the discretion may be said to be exercised in his favour, it is a discretion reposed in the Court to enable a protective provision in the interests of the organization and of the public to be applied flexibly and fairly. When the discretion is exercised, the interests which the legislation serves are not subordinated, but rather vindicated in the precise manner best suited to the particular case.
The plan of the draftsman was to deal separately with the question of continuance in office, and the question of eligibility for office. So far as eligibility is concerned, s.132B(1) provides that a person convicted of a prescribed offence "is not eligible to become, or to continue to be, a candidate for an election, or to be elected or appointed, to an office within any organization" unless, to put it summarily, he was granted leave to be a candidate for election, or to be appointed to an office, "or to continue to hold an office within an organization", or, though he was refused leave, the Court specified a period which has elapsed, or a period of five years has elapsed since the conviction or, if a term of imprisonment was served, since his release from prison. As I have previously indicated, there is also a power conferred upon the Court, by s.132B(5), to declare, amongst other things, that a person is not or was not eligible to become a candidate, or to be elected to an office.
By s.132C, provision is made for application for the leave contemplated by s.132B(1). It is perhaps noteworthy that the section is drafted so as to refer to a person who desires to be a candidate for election or appointment to "an office" and who applies to the Court for leave in respect of his candidacy for "that office", notwithstanding that s.132B(1) does not in terms disqualify a person who was granted leave in respect of an office from candidacy for any other office. S.132B is precise in its provision that the leave will relate only to "that prescribed offence" the subject of the application, but does not limit the effect of a granting of leave to a candidacy for the particular office referred to in the application for leave.
As s.132B(1) is drafted, once leave is granted, the provision simply does not operate in respect of the person to whom it has been granted, so far as the particular conviction the subject of the grant of leave is concerned. Yet s.132C(2) provides for a grant of leave which is specific to candidacy for a particular office, the office the subject of the application, which is referred to as "that office".
There is a specific provision in s.132C(4) denying any entitlement to make an application (whether for leave to be a candidate or for leave to hold an office) where a previous application of either kind has been made "in relation to that conviction", a provision which underlines the fact that it is not contemplated that the applicant would have to apply again before standing for some other office.
In relation to the situation where a person who holds an office within an organization is convicted of a prescribed offence, provision is made by s.132B sub-secs. (2),(3) and (4) for the automatic loss of office at the expiration of a period of 28 days, unless an application is made to the Court within that period, but if an application is made to the Court, the office will not be lost during a period of 3 months or any extension of that period granted by the Court, pending the determination of the application to the Court. There is a separate section governing the making of an application for leave to continue to hold office, s.132D. That section provides, as in the case of candidacy, that the Court may either grant leave (in this case to continue to hold the office in question), or refuse leave but specify a lesser period of disqualification than 5 years, or simply refuse leave to continue to hold the office. If a person is refused leave to continue to hold an office, he thereupon ceases to hold that office (s.132D(3)). There is again a provision limiting the convicted person to one application, whether for leave to be a candidate or for leave to continue to hold an office.
An important difference between the provisions concerned with candidacy for office, and those concerned with continuance to hold office, is the provision in the latter case for a temporary continuance in office pending the final decision by the Court; in the case of candidacy there is no such provision. Unless leave is granted, the convicted person is simply not eligible. It is this feature of the legislation which throws up the particular problem with which I am concerned.
Norman Leslie Gallagher (to whom I shall refer as Mr. Gallagher), an applicant both for leave to continue to hold office and for leave to become and continue to be a candidate for election to an office, is a person who is said to have been convicted upon a number of counts each of which related to a prescribed offence. He is the Victorian Branch Secretary of the respondent, the Australian Building Construction Employees' and Builders' Labourers' Federation ("the Union"), and his name has in fact been included in a ballot for the same position for a further term of office in respect of which an election, I have been informed, is presently taking place. The view was apparently taken by those advising Mr. Gallagher, and also by the Union, that as his application for leave to continue to hold office had been lodged in time, and the statutory extension until determination of that application had not expired, he was automatically entitled to be a candidate to continue in the same office. I do not think this is correct, having regard to the structure of the provisions to which I have referred earlier in this judgment.
Mr. Gallagher does not desire to pursue his applications for leave at the present time, because he has an appeal pending to the Court of Criminal Appeal of Victoria against his convictions, due to be heard on Wednesday 4 September 1985. Even when the hearing of that appeal is completed, and the decision given, there will of course remain the possibility of an application for special leave to appeal to the High Court of Australia. Mr. Gallagher has the support of the Union in his desire to defer consideration of his applications until the appeal process is completed.
On the other hand, the sole candidate for election to the position of Victorian Branch Secretary of the Union in opposition to Mr. Gallagher, Martin Bingham (to whom I shall refer as Mr. Bingham), has brought an application for a declaration that Mr. Gallagher is not eligible to continue to be a candidate for election, or to be elected. I am asked by him to refuse to defer the matter further and to make a declaration. At the hearing of argument on 26 August 1985 I was also asked by Mr. Ryan, senior counsel for Mr. Gallagher, to make an interim order permitting Mr. Gallagher's candidacy. I do not think the structure of the sections permits me to do that. There is no such thing as an interim candidate. A person who desires to be elected to an office will either have leave to be a candidate, or he will not. I cannot of course grant Mr. Gallagher leave to be a candidate under s.132C at this stage, if only because there is no evidence of the matters to which I would be required by s.132E to have regard. In any case, Mr. Ryan does not ask me for anything other than an interim order which, as I have said, I do not think it is open to me to grant.
In support of the proposition that I should not, at this stage, make the declaration Mr. Bingham seeks, but should stand the applications over, I was given an undertaking by counsel for the Union's returning officer, David Pillar, who is also a respondent to Mr. Bingham's application, in the following terms:

"That Mr. Pillar undertakes not to declare the result of the ballot for the election of the Victorian Branch Secretary before 20 September 1985."

Mr. Hinkley of counsel stated that he gave that undertaking to the Court on instructions from Mr. Pillar.

The strength of the case for an adjournment is, quite simply, that a successful appeal would result in Mr. Gallagher no longer being a person who could be described as convicted of a prescribed offence. Indeed, if his convictions are quashed (see Crimes Act 1958 of Victoria, s.568(2)), they will be "avoided ab initio", with the result that "the judgment reversed is the same as no judgment" (Commissioner for Railways (NSW) v. Cavanough (1935) 53 CLR 220 at p 225). In the case I have cited, an employee of the Commissioner for Railways was convicted of an offence which, it was alleged, fell within a section of the Government Railways Act to the effect that "an officer convicted of felony shall be deemed to have vacated his office". He appealed, and his conviction was quashed. It was held he was entitled to receive his salary during the period between his conviction and his successful appea1. At p.224 in the joint judgment of Rich, Dixon, Evatt and McTiernan JJ. it is stated:

"In our opinion he is so entitled because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office."

Starke J., in a separate judgment, at pp.227-8 said: "But the consequence of a reversal of a judgment or conviction is that it is annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost."

Unfortunately, the draftsman of the sections I am considering has made no express provision for a case of a conviction which is quashed upon appea1. In that situation, it seems to me that there are strong reasons for refraining from making a declaration which would be wholly dependent upon a state of affairs which an appeal judgment might entirely set aside. At the same time, I accept the proposition that unless the interests of other parties, including the Union, compel me to do otherwise, I should not insist upon a prompt hearing of Mr. Gallagher's applications at the very time that he is prosecuting his appeals against his convictions.
A grant of a declaration is a discretionary remedy, and the grant of an adjournment is also, in my opinion, in these circumstances within my discretion. As s.132B(5) confers a jurisdiction to declare that "by reason of the operation of ...s.132C... a person ...was not eligible... to be elected... to an office within an organization", it would not be too late to grant such a declaration, assuming Mr. Gallagher's appeals fail, even after the declaration of a poll actually or purportedly made in Mr. Gallagher's favour. However I do not think it would be in accordance with the policy of the sections to which I have referred to permit a declaration of a poll to be made whilst Mr. Gallagher remains a convicted person and has not obtained the leave of the Court. It was for this reason that I accepted on 26 August 1985 the undertaking proffered by Mr. Hinkley. If the union desires Mr. Gallagher to have the opportunity, and he desires to have it, to put before the Court in support of his applications all of the relevant material, at a time subsequent to the hearing of his appeal, it seems to me that to delay the declaration of the poll should occasion no problem. He will remain in office until then, or until the determination of his applications, so long as the existing or any future extension permits him to do so. It is not a case where the Union is asking the Court for a declaration that a person convicted of a prescribed offence has ceased to hold an office within the organization (see s.132B(5)(b)). In this case, the Union is seeking no order against its convicted office-holder.
At the hearing on 26 August I was at first minded to give an urgent decision on the following Wednesday 28 August 1985. I was dissuaded from this course by the undertaking given by the respondent David Pillar, the operation of which at least until 9th or 10th September counsel for the Union accepted in argument, and by the submissions of Mr. Ryan on behalf of Mr. Gallagher:

"MR. RYAN: It is not as urgent in our submission as next Wednesday. It is obviously in everybody's interests that the matter be resolved as soon as possible.

HIS HONOUR: When is the poll to be declared?

MR. RYAN: The poll is to be declared at the next branch meeting on 8 October.

HIS HONOUR: What you are saying is, it is not perhaps at this stage as urgent as Wednesday because nobody's position really is changed until 8 October?

MR. RYAN: That is right."

The matter has now been brought back before me, pursuant to leave which I granted to serve short notice, on the basis of evidence that a public announcement has been made, purportedly on behalf of the Union and Mr. Gallagher, to the effect that the poll will be declared at 5.30PM today. There has been no repudiation of that announcement by Mr. Gallagher or the Union. On the contrary, other evidence appears to support its reality.

Mr. Bingham seeks injunctions to restrain any declaration or announcement of the poll for Branch Secretary. The Respondents have submitted there is no urgency, and that the threatened declaration of the poll will not change the applicant's position. They have also made a number of specific objections to the form of orders sought in the Notice of Motion.
I do not agree that Mr. Bingham does not show grounds for interlocutory relief. The relief is sought to ensure the reality of an undertaking given by the 3rd Respondent, and to ensure that during an adjournment, the grant of which has been sought by the 1st Respondent, supported by the 2nd Respondent, the candidacy the subject of the litigation will not be transmuted, by actions of the Respondents, into a renewed office lacking the leave of the Court.

I think the evidence does raise sufficient grounds to fear that a formal declaration of the poll is intended by the Respondents, despite their submissions to the contrary. I think this evidence is sufficient to justify an interlocutory restraint.
It should not be overlooked that the situation would not have arisen had I acceded to Mr. Bingham's application for a declaration of the ineligibility of Mr. Gallagher, which I am adjourning for the reasons given in this judgment.
So far as the 3rd Respondent is concerned, he has reiterated his undertaking, but has not dealt in detail with the applicant's solicitor's letter, which I think did reasonably demand a more forthcoming response, having regard to the announcements which have been evidenced. In any case, I think the circumstances justify an order which will have a somewhat enlarged ambit. For these reasons, I will make an order against the 3rd Respondent, and, as it will not be in the same terms as the undertaking, release him from those terms upon condition he comply with the order of the Court.
I think it will be sufficient protection if I restrain the Respondents in the manner I shall indicate, and of course it will be open to the Applicant to notify any officer or scrutineer of the orders I shall make, in reliance on the law as stated in the fairly recent Court of Appeal decision in Z. v. AZ and AA-LL (1982) QB 558.
I think it is preferable to make the orders "until further order", so that, on the one hand, it will be clear they apply only until dissolved or varied, and on the other, a renewal of this application will not be necessitated merely by some further, perhaps quite short, delay.
In the circumstances, I will not make the declaration which Mr. Bingham seeks, at this time, and I accede to the application of Mr. Gallagher, supported by the Union, to adjourn all the applications to a date to be fixed following upon a directions hearing. However, s.132G(1) confers a jurisdiction "with respect to matters arising under" sections 132B, 132C and 132D. Pursuant to that jurisdiction and the powers conferred upon me by the Federal Court of Australia Act 1976, I order that the declaration of the poll for the position of Victorian Branch Secretary of the Union shall not be made until further order of the Court in that regard, and I make orders as follows:

(1) An order as sought in paragraph (1) of the Notice of Motion, subject to the substitution for the words "before the 20th September 1985" of the words "until further order", that is to say an order that the 3rd named Respondent not declare in any manner whatsoever the result of the ballot for the 1985 election of the Victorian Branch Secretary of the second named Respondent until further order.

(2) An order that the 1st, 2nd and 3rd Respondents be restrained from by themselves or by any agent declaring or announcing or taking any steps to declare or announce or confirm any declaration or announcement of the poll for the position of Branch Secretary of the Victorian Branch of the second Respondent, the Australian Building Construction Employees' and Builders' Labourers' Federation until further order.

(3) An order in the terms contained in paragraph (3) of the Notice of Motion but to operate until further order, that is to say "That the Secondnamed Respondent, by itself, its officers, agents and employees, be restrained from calling on or inviting the Thirdnamed Respondent or any other person appointed Victorian Branch Returning Officer of the Secondnamed Respondent to declare in any manner whatsoever the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order."

(4) An order in the terms set out in numbered paragraph (4) of the Notice of Motion also to operate until further order, that is to say "That the Secondnamed Respondent, by itself, its officers, agents and employees, and its Branch Executive Committee, be restrained from convening, fixing, summoning or holding a Special meeting or an ordinary meeting of the Victorian Branch of the Secondnamed Respondent, a purpose or the business of which is to declare the result of the ballot for the 1985 election of the Victorian Branch Secretary of the Secondnamed Respondent until further order".

(5) An order that the Firstnamed Respondent be restrained from summoning or fixing or causing to be summoned or fixed a special meeting or an ordinary meeting of the Victorian Branch of the second named Respondent, a purpose or the business of which is to declare the result of the ballot for the 1985 election of the Victorian Branch Secretary of the second named Respondent until further order.

I reserve leave to the respondents to apply for dissolution of these injunctions or any of them on three days notice.
I reserve any question under s.132H(2), in respect of Mr. Bingham's costs, till the final determination of his application.

[1985] FCA 451

03 SEPTEMBER 1985