Brahim, J.P. v Ide, D

[1991] FCA 334

JUDGMENT NO. 334 / .. 41 . . ..- , ,

IN THE FEDERAL COURT OF AUSTRALIA )

-	E	U	g	1
INDUSTRIAL DIVISION	1

No. Q1 16 of 1991

BETWEEN: JEFFREY PHILLIP BRAHIM. NORMAN HARRY

MURDOCH, PETER FRANCIS UNDERWOOD,

DAVID GEORGE BYRNE. MARGARET JOYCE

-	N	A	L
RICHARD CLARKE AND HUBERT GEORGE WEBB

Applicants

AND: DENNIS IDE. WALTER MALCOLM RUTHERFORD,

TERENCE JOSEPH MELLAFONT. DON KINMAN.

GEORGE DAVIS

First Respondents 1

AND: NATIONAL UNION OF STOREWORKERS. PACKERS,

RUBBER AND ALLIED WORKERS

Second Respondent

No. Q1 17 of 1991 t l %

BETWEEN: WALTER MALCOLM RUTHERFORD 1, . 6

Applicant 1:

AND: JEFFREY PHILLIP BRAHIM. NORMAN HARRY

MURDOCH, PETER FRANCIS UNDERWOOD.
DAVID GEORGE BYRNE, MARGARET JOYCE
LANE, NOELA ETHYL JOHNSON, MICHAEL

RICHARD CLARKE AND HUBERT GEORGE WEBB

office at 17 Cribb Street, Milton.

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.	RECEIVED
DATE OF ORDER:	27 MAY 1991
WHERE MADE:	BRISBANE

t

THE COURT ORDERS THAT UNTIL FURTHER ORDER:	i
I .

1. The Respondents in Q1 16/91 do not occupy the Union C* .

2.    The Respondents do not remove any papers, books, files, computers and equipment or any other objects from the office at 17 Cribb Street, Milton.

3.    The Respondents permit and do not obstruct the entry to the Union office at 17 Cribb Street, Milton and the attendance at that office of a security guard engaged by the Applicants on behalf of the Union to guard and protect the Union's property.

4.	The applicants grant to Walter Malcolm Rutherford full and free access during ordinary working hours to :
(a) the office and office equipment; and (b) the computers; and
(c) the files, the financial and other records and the correspondence of the Queensland branch of the Union;

and for that purpose do permit him to have the assistance of office staff and other employees of the Queensland branch of the Union.

THE COURT FURTHER ORDERS THAT:

5.    The Applicants in Q1 16/91 supply on or before 31 May, 1991 to the Respondents particulars of the rule or rules of the Organization the performance or observance of which is in question as contemplated by Order 4 Rule 15(5a).

6. Jeffrey Phillip Brahim, Norman Harry Murdoch, Peter
Francis Underwood, David George Byrne, Margaret
Joyce Lane, Noela Ethyl Johnson, Michael Richard
Clarke and Hubert George Webb appear before the

Federal Court of Australia, Brisbane in the State

of Queensland on the 24th day of June, 1991 at

10.15 o'clock in the forenoon, to show cause why
the following order should not be granted upon
the grounds set forth in the affidavit of Walter
Malcolm Rutherford sworn the 23rd day of May 1991
and filed herein.

(a) That the Respondents perform and observe the
rules of the organization by treating as null
and void and as of no effect resolutions
purportedly carried on 9 May, 1991 by the
Committee of Management of the Queensland
Branch of the organization and purportedly
convicting the Applicant of -

(i)    misappropriating the funds of the union, and

(ii) gross neglect of duty, and

(iii) gross misbehaviour

and purporting to remove the Applicant from
the office of secretary of the Queensland

Branch of the organization.

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

INDUSTRIAL DIVISION

I No. Q1 16 of 1991

BETWEEN:  JEFFREY PHILLIP BRAHIM. NORMAN HARRY
MURDOCH, PETER FRANCIS UNDERWOOD,
DAVID GEORGE BYRNE, MARGARET JOYCE
LANE. NOELA ETHYL JOHNSON, MICHAEL
RICHARD CLARKE AND HUBERT GEORGE WEBB

Applicants

AND:  DENNIS IDE, WALTER MALCOLM RUTHERFORD,
TERENCE JOSEPH MELLAFONT. DON KINMAN,
GEORGE DAVIS

First Respondents

AND:  NATIONAL UNION OF STOREWORKERS. PACKERS,
RUBBER AND ALLIED WORKERS

Second Respondent

No. Q1 17 of 1991

BETWEEN: WAZlTER MALCOLM RUTHERFORD

Applicant

AND :  JEFFREY PHILLIP BRAHIM. NORMAN HARRY
MURDOCH, PETER FRANCIS UNDERWOOD,
DAVID GEORGE BYRNE, MARGARET JOYCE
LANE. NOELA ETHYL JOHNSON. MICHAEL
RICHARD CLARKE AND HUBERT GEORGE WEBB

Respondents

CORAM: PINCUS J.

PLACE: BRISBANE

m: 27 MAY 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter, Mr. Hall, with his customary

succinctness and helpfulness, has drawn my attention to two points. I agree with him on one and not on the other. The first point is that there is some obscurity as to the effect

of the order which Spender J. made on 18 April 1991. His
honour made provision, by paragraph 5 of that order, for
access by Mr. W.M. Rutherford to office and office equipment

and other chattels.

The subsequent history of the matter was that I made

an order about the same subject on 16 May, which was extended

on 17 May to 23 May. On 23 May I was not asked to make any

further order and therefore there is no question of collision

with Spender J.'s order.

Mr. Hall says that the understanding on 23 May was

that my order would be continued, but it was not, so that, to give effect to the understanding, it would seem that I should

remake the order of 16 May. However, since it was defective

in form, I propose to remake it in such a way as to include

within it the terms which Spender J. included in paragraph 5

of his order of 18 April. At least, that is what I propose to

do unless there is some further suggestion made by counsel.

The other point which Mr. Hall made is that he

argues that orders of this Court have placed the committee of
management in a position to spend money on the litigation, and
that the orders which have that effect should be limited. He
also suggests that there is a question whether or not the
resolutions of the general meeting of 15 May have put an end

to the committee's powers.

The fourth motion which, according to Exhibit D to

Mr. Brahim's affidavit of 16 May, was passed on 15 May was as

follows :

"That the President and Secretary be authorised as
follows to allow for the proper conduct of the
affairs of the Union:

1.  To employ such staff as is necessary until an election is held

2.   To open and operate Bank Accounts for the Union

3 .	To remove such property as they see fit from the premises at 17 Cribb Street Milton to such other office as they may obtain
4.	To take such other steps as they consider necessary in the circumstances provided that such conduct is ratified by a subsequent General Meeting".

When one keeps in mind the proviso to paragraph 4 of

that resolution, namely, that the conduct had to be ratified
at a subsequent general meeting, the general effect of that
resolution was to place the president and the secretary in
control of the affairs of the union subject to veto by a
general meeting; that is, a general meeting has purported to
exercise a power, which can only be given by the rules, to

displace the committee from control of the affairs of the

union.

The argument which Mr. Hall advances is that unless and until it is determined whether or not resolution number 4 is valid, the Court should act on the assumption that it may

be valid and treat the committee of management as at least
provisionally displaced. Mr. Hall frankly confessea that he
is unable to point to any provision in the rules which would
give the general meeting power to pass such a resolution.

I

If there were such a rule, it would seem to me a very odd one, because it would be an inconvenient position that the general meeting should have power to displace the branch committee and replace them by two officials who,

themselves, would have only limited power because the steps
they would take would be subject to ratification at a general
meeting.

However, Mr. Hall says, as I understand him, that I should read into the rules at least an implicit provision

enabling the general meeting to do this. I do not think I

have to decide whether that can be read in or not, but I have
to adopt some view as to how likely an implication that is.

It does not seem to me to be a very likely implication.

If the control of the union is in doubt, then the

Court may or may not act on the basis that those who have raised the doubt gain some rights, that is, gain rights to treat those who are prima facie in control as perhaps

provisionally, on limited argument, a matter which is going to	raised. It is an embarrassing position to have to decide even displaced. It depends upon the strength of the doubt which is	be determined at the trial, but I have to say something about
it. I think that the argument does not seem to have great
strength; that is, I would not be prepared to act in the absence of any such rule as would be necessary to justify resolution number 4, on the basis that it is effective.

The argument that Hr. Hall has advanced that I

5   i

should make some order which is premised on the assumption
that the branch committee no longer controls the union must be

rejected.

The order which I will make is that, until further

order, firstly, the respondents in Q1 16 of 1991 do not occupy the union office at 17 Cribb Street, Milton; secondly, they do not remove any papers, books, files, computers and equipment,

or any other objects from the office at 17 Cribb Street,
Milton; thirdly, the respondents permit and do not obstruct
the entry to the union office at 17 Cribb Street, Milton, and
the attendance at that office of a security guard, engaged by
the applicants on behalf of the union to guard and protect the
union's property; and fourthly, the applicants grant to Walter
Malcolm Rutherford, full and free access during ordinary
working hours to (a) the office and office equipment, and (b)
the computers, and (c) the files, the financial and other
records and the correspondence of the Queensland branch of the

union, and for that purpose do permit him to have the

assistance of office staff and other employees of the Queensland branch of the union.

I order that the applicants in Q1 16 of 1991 supply

on or before 31 May to the respondents particulars of the rule
or rules of the organization, the performance or observance
which is in question, as contemplated by order 4 rule 15 sub-
rule 5(a).

In addition to the order nisi which I have made, Mr.

Hall has argued that I should give interim reiief in terms of (a) and (b). (a) has already been granted. As to (b), there are two questions. The first one is whether or not the

respondent should be restrained from using union resources to

publish materials which canvass the merits or likely outcome

of the proceedings. I do not understand why that should be

done, but the essence of the argument seems to be that it
would be a contempt to do so (which, prima facie, is correct)
and that it would be desirable to encourage the respondents
not to commit a contempt.

The difficulty about making the order is that it has

a subtler effect, which needs to be analysed. If the
respondents were said to be guilty of contempt, then it would
be necessary for an applicant to come to Court and prove that

they had committed contempt within the general law. If I made

such an order as this, there would be a double-barrelled

attack on them:  one, that they had committed contempt under

the general law, and two, that whether or not they had done

so, they had breached this order.

I do not see the point of complicating affairs in

that fashion. Prima facie, it would be unlawful to publish
such a document as Mr. Hall contemplates by sub-paragraph (i),

but I see no justification for making that order. A more

difficult question is raised by (ii). It is likely to be, as

Mr. Hall says, damaging to m. Rutherford and would tend to
deprive him of the fruits of victory if, between today and 24
June, the branch used union funds to suggest that he had been

guilty of that with which he was charged.

!

I would have been inclined to give some relief under

that, except for the intimation which has come from Mr.
Murdoch on behalf of the respondents, and I accept that the
substance of the intimation will be communicated to the
respondents. Therefore, apart from (a), which has already
been granted, the interim relief sought by Mr. Hall will be

refused.

I certify that this and the
six preceding pages are a
true copy of the reasons
for judgment herein of his

Honour Mr. Justice Pincus.

Associate

Date Z+ May lqql