Bramich v Transport Workers' Union of Australia

[1999] FCA 510

FEDERAL COURT OF AUSTRALIA

Bramich v Transport Workers’ Union of Australia [1999] FCA 510

INDUSTRIAL LAW – rule to show cause – whether respondent union’s Federal Council entitled to disband branch – whether rule 23 of respondent union’s rules invalid – whether invalid pursuant to s196(c) of the Workplace Relations Act 1996 (Cth) – whether invalid for failure to afford an opportunity to the branch to make representations as to why it should not be disbanded – natural justice – whether mechanisms provided by the rule for representation of affected members are appropriate – whether the rule offends s195(1)(b)(iv) of the Act.

Workplace Relations Act 1996 (Cth) ss 187A, 195(1)(b)(iv), 195(1)(c), 196(c), 208, 209.

Hansch v Transport Workers’ Union of Australia (1998) 85 IR 310, followed
McLeish v Kane (1978) 36 FLR 80, applied
Thornton v Mackay (1946) 56 CAR 561, referred to
Watson v Transport Workers’ Union of Australia (1946) 56 CAR 347, referred to

Kenney v Operative Painters and Decorators Union of Australia (1954) 81 CAR 166, referred to

Wright v Australian Workers’ Union (1965) 7 FLR 148, referred to
Watson v Australian Workers’ Union (1967) 10 FLR 347, referred to
Higgins v Nicol (1971) 18 FLR 343, referred to
Luckman v Australian Postal & Telecommunications Union (1978) 36 FLR 68, referred to
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129, applied
Lewis v Maynes (1988) 27 IR 113, followed
Imlach v Daley (1985) 7 FCR 457, applied
Campbell v Crawford (1986) 12 FCR 317, followed
Williams v Ward (1984) 8 IR 234, followed

JOHN NELSON BRAMICH AND OTHERS v TRANSPORT WORKERS’ UNION OF AUSTRALIA AND OTHERS

TG 22 OF 1998

MARSHALL J
HOBART
9 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA  DISTRICT REGISTRY	TG 22 OF 1998

BETWEEN:

JOHN NELSON BRAMICH
First Applicant

SEAN SCOTT LAWRENCE
Second Applicant

GARRY JOHN FISHER
Third Applicant

BARRY HANSCH
Fourth Applicant

AND:

TRANSPORT WORKERS' UNION OF AUSTRALIA
First Respondent

STEPHEN PATRICK HUTCHINS
Second Respondent

WILLIAM GEORGE NOONAN
Third Respondent

ROBERT JOHN ALLAN
Fourth Respondent

RICHARD DONALD MARLES
Fifth Respondent

TREVOR PAUL SANTI
Sixth Respondent

HUGHIE JOHN WILLIAMS
Seventh Respondent

ALEXANDER McEACHIAN GALLACHER
Eighth Respondent

JAMES McGIVERON
Ninth Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

9 APRIL 1999

WHERE MADE:

HOBART

THE COURT ORDERS THAT:

1.The rule to show cause be discharged.

2.        The applicant's claim for relief in the accrued jurisdiction of the Court be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 22 OF 1998

BETWEEN:

JOHN NELSON BRAMICH
First Applicant

SEAN SCOTT LAWRENCE
Second Applicant

GARRY JOHN FISHER
Third Applicant

BARRY HANSCH
Fourth Applicant

AND:

TRANSPORT WORKERS' UNION OF AUSTRALIA
First Respondent

STEPHEN PATRICK HUTCHINS
Second Respondent

WILLIAM GEORGE NOONAN
Third Respondent

ROBERT JOHN ALLAN
Fourth Respondent

RICHARD DONALD MARLES
Fifth Respondent

TREVOR PAUL SANTI
Sixth Respondent

HUGHIE JOHN WILLIAMS
Seventh Respondent

ALEXANDER McEACHIAN GALLACHER
Eighth Respondent

JAMES McGIVERON
Ninth Respondent

JUDGE:	MARSHALL J
DATE:	9 APRIL 1999
PLACE:	HOBART

REASONS FOR JUDGMENT

1. This is an application pursuant to ss 208 and 209 of the Workplace Relations Act 1996 (Cth) (“the Act”), in which the applicants seek to impugn the ability of the Federal Council of the Transport Workers’ Union of Australia (“the Union”) to disband the Tasmanian branch of the Union, (“the Branch”).

   Background – The Facts

2. The Union, the first respondent, is an organisation of employees registered pursuant to the Act. At all material times the other respondents constituted the Federal Committee of Management of the Union. Each applicant is a member of the Union who is resident in the State of Tasmania.

3. On 8 March 1995 the fourth applicant, Mr Hansch was elected as an organiser of the Branch. His term of office was due to expire on 20 April 1999. However, on 6 July 1998 the Federal Council of the Union resolved to disband the Branch.

4. After the disbandment of the Branch Mr Hansch continued to be an organiser working in Tasmania and employed by the Union, subject to the supervision of Federal Council, until his employment was terminated by the Union on 7 September 1998.

5. The first and third applicants were formerly members of the Branch Committee of Management until the Branch was disbanded. The second applicant was employed in the activities of the Branch as the North-West Field Officer from March 1995 until November 1996.

6. Prior to 6 July 1998 there were seven branches of the Union. They were as follows:

   ·    Canberra Branch

   ·    New South Wales Branch

   ·    Queensland Branch

   ·    South Australia/Northern Territory Branch

   ·    Tasmanian Branch

   ·    Victorian Branch

   ·    Western Australian Branch

7. On 4 July 1998 the Branch Committee of Management resolved, inter alia, to recommend that:

   “…the Federal Council immediately review the Branch’s continued operations in accordance with Rule 23(1)(e).”

8. On 6 July 1998 at a Special Federal Council Meeting the Federal Council of the Union resolved as follows:

   “The Federal Council on hearing reports of the financial situation of the Tasmanian Branch and the Branch Committee of Management’s recommendation of  the 4^th July 1998, resolves to disband the Tasmanian Branch in accordance with Rule 23(1)(e) as it effectively ceases to function.

   In accordance with Rule 23(3) the Affected Members of the Tasmanian Branch are to be represented directly by Federal Council.

   The Federal Secretary is to develop a business plan and budget for consideration by the next Federal Committee of Management meeting.”

   Background – The Proceeding

9. The proceeding commenced on 28 October 1998 when the Court granted the applicants a rule to show cause. The primary relief sought in the rule was an order pursuant to s208 of the Act declaring rule 23 of the rules of the Union to be in contravention of s196(c) of the Act. Consequential relief was sought pursuant to s209 of the Act calling upon the respondents, other than the Union, to treat the Federal Council resolution of 6 July 1998 as null and void. Further consequential orders were sought relating to the position of Mr Hansch as an elected organiser of the Branch and relating to the first and third applicants as members of the Branch Committee of Management.

10. On 2 November 1998 the applicants sought interlocutory relief in which they contended effectively that the Branch should be re-established pending the final hearing in the proceeding. The Court declined to grant interlocutory relief on the basis that the balance of convenience did not support the re-establishment of the Branch when it was possible that such re-establishment may be short lived if the respondents succeeded at trial. The Court was also concerned at the applicants’ delay in seeking a rule to show cause.

11. On 30 November 1998 the applicants filed a notice of motion seeking that the rule to show cause be amended. The amendment sought alleged that the Federal Council’s resolution of 6 July 1998 was made in bad faith. The Court declined to amend the rule to show cause.

12. The Court refused the amendment because it was not of the opinion that it was open to the applicants to contend that the Federal Council acted in bad faith on 6 July 1998 having regard to the judgment of the Court in Hansch v Transport Workers’ Union of Australia (1998) 85 IR 310. In Hansch (at 312, 313) the Court said:

    “In his submissions before me today Mr Green contended that that resolution of Federal Council of 6 July 1998 was made in bad faith and that it was therefore not made bona fide in accordance with the rules of the organisation, and accordingly was not a valid resolution.  Mr Green accepted that the onus lay upon his client to illustrate, by way of evidence, that the relevant resolution was made mala fide.  Mr Green referred to evidence of the applicant dealing with his treatment by the Tasmanian Branch of the organisation.  It was submitted that it could be inferred that that conduct had in some way affected the decision of the Federal Council.  I do not accept that submission.  Indeed, I did not call upon Mr Read to respond to it.

    There is evidence before the Court of a logical and cogent reason which accords with the efficient administration of the organisation for the branch to be disbanded. That is that it had insufficient funds to continue to function.  It was open to the organisation pursuant to its rules to adopt the course it did.  The fact that one of the members of the Federal Council, Mr Bacon, was also a member of the Branch Committee of Management, really does not assist in showing that whatever animus he may or may not have brought to the resolution on 6 July infected any other member of Federal Council, assuming such animus existed.

    There is simply insufficient evidence before the Court to satisfy me that the applicant has made out his onus of proving that Federal Council was actuated by bad faith in making its resolution of 6 July 1998.  Consequently it is my view that the resolution, on the material before me, is a valid resolution of Federal Council and one that binds members of the organisation.  Mr Green submitted that one could not, by disbanding a branch, remove the officers of that branch.  The Court was referred to various authorities dealing with the power of organisations to amend rules which may impact on the term of officers of organisations.  There was no case directly on point and no case that grappled with the fundamental problem about how an office could possibly survive the extinguishment of a branch upon which it was inexorably dependent;  that is, how can an office exist in a branch of an organisation which no longer exists?

    Mr Green was unable, in all frankness, to assist me on this issue and it appears that logically there is only one answer to this particular question. It appears to be a matter of logic and common sense to reason that if a branch no longer exists it cannot have officials, nor can it have members, nor can it have any particular status as a branch under the rules of an organisation. It must always be borne in mind that there is no requirement for organisations registered under the Act to have branches. Branches are simply organs of administrative convenience and are organs that have been set up by organisations to effectively deliver services to their members.

    There is nothing to stop an organisation operating in a purely central way and having organisers in any area of the country directed solely from a federal office or by the Federal Council and/or the Federal Committee of Management.  It is not for the Court to dictate to organisations their structures and this is apparent from the oft quoted judgment of the Court in Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129. Additional relevant reference may be made to the judgment of a Full Court of the Court in Imlach v Daley (1985) 7 FCR 457.”

13. No additional probative evidence was proferred by the applicants in support of their application to amend the rule to show cause to the evidence which was before the Court in Hansch.

14. Shortly after the hearing of the applicants’ notice of motion the Court set down the trial of the proceeding for 8 April 1998 in Hobart. At the trial Mr Green, a solicitor, appeared for the applicants and Mr Smith, a solicitor in the employ of the Union, appeared for the respondents.

    The Legislative Context

15. Section 196(c) of the Act provides that:

    “The rules of an organisation:

    shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.”

16. Section 187A of the Act provides that:

    “As well as the objects set out in section 3, this Part has these objects:

    (a)to encourage the democratic control of organisations; and

    (b)to encourage members of organisations to participate in the organisations’ affairs; and

    (c)to encourage the efficient management of organisations.”

17. Section 208(2) of the Act provides that:

    “An order under this section may declare that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect.”

18. Section 209(9) of the Act permits the making of orders “giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.”

19. Section 195(1)(b)(iv) of the Act requires the rules of an organisation to provide for:

    “…the control of committees of the organisation and its branches respectively by the members of the organisation and branches;...”

    The Impugned rule

20. Rule 23 of the rules of the Union provides as follows:

    “23.     Disbanding a Branch

    (1)Federal Council has specific power to disband any Branch:

    (a)which fails to comply with any provision of the Rules;

    (b)which fails to comply with any decision of Federal Council;

    (c)the Branch Committee of Management of which acts contrary to law;

    (d)the Branch Committee of Management of which fails to carry out its obligations; or

    (e)which effectively ceases to function.

    (2)If Federal Council acts in accordance with sub-rule (1), it must, subject to sub-rules (3) and (4), immediately act to form a Branch in the area of the disbanded Branch in accordance with rule 18, including:

    (a)appointing temporary Officers to serve the industrial interests of the Affected Members;

    (b)appointing a temporary Trustee or Trustees to manage all funds and property held by the disbanded Branch; and

    (c)calling a meeting of the Affected Members.

    (3)If Federal Council acts in accordance with sub-rule (1), it may determine not to reconstitute the disbanded Branch, and for the Affected Members to be represented directly by Federal Council, if it considers that this will:

    (a)provide an appropriate means for the Affected Members to participate in the affairs of the Union; and

    (b)promote the efficient management of the Union.

    (4)If Federal Council acts in accordance with sub-rule (1), it may determine not to reconstitute the disbanded Branch, and to attach the Affected Members to another Branch, if it considers that this will:

    (a)provide an appropriate means for the Affected Members to participate in the affairs of the Union; and

    (b)promote the efficient management of the Union.

    (5)If Federal Council acts in accordance with sub-rule (4):

    (a)the Affected Members become Members of the other Branch for the purposes of the Rules;

    (b)the funds and property of the disbanded Branch must be transferred to the other Branch;

    (c)Federal Council must temporarily increase the number of persons who are members of the Branch Committee of Management of the other Branch in accordance with paragraph 31(2)(f) until the next ordinary election in the other Branch in the following way:

    (i)A number of additional members of the Branch Committee of Management under paragraph 31(2)(f) must be determined having regard to the relative number of Affected Members compared with the number of Members of the other Branch (even if this means the total number of such members of the Branch Committee of Management exceeds 11);

    (ii)Pending an election for the additional members of the Branch Committee of Management, Federal Council may appoint temporary additional members of the Branch Committee of Management from the Affected Members, to act until the completion of an election;

    (iii)The additional members of the Branch Committee of Management must be elected by and from the Affected Members in accordance with rule 62 to the extent possible; and

    (iv)The additional members of the Branch Committee of Management hold office until the next ordinary election in the other Branch; and

    (d)Federal Council may alter the name of the other Branch to include a description of the area of the disbanded Branch.

    (6)No action taken by Federal Council in accordance with sub-rule (1) affects the membership rights of Affected Members.

    (7)In this rule, “Affected Members” means the group of Members who were enrolled in a Branch immediately before it was disbanded in accordance with sub-rule (1).”

    The Competing Contentions on Validity of rule 23

21. Mr Green submitted that rule 23 is invalid as being oppressive, unreasonable or unjust in the context of s196(c) of the Act because under the rule:

    ·    a branch can be disbanded for vague and uncertain reasons based on the opinion of Federal Council members;

    ·    a branch can be disbanded permanently or indefinitely, depriving persons residing in its former area of operation of the ability to participate democratically in the affairs of the Union;

    ·    no mechanism is provided for notifying an affected branch of a resolution to disband a branch or to allow it to make representations concerning the proposed disbandment;

    ·    Federal Council cannot provide an adequate means of representation for affected members;

    ·    affected members may be allocated to a Branch other than “an adjoining Branch”.

22. Mr Smith submitted that the rules of an organisation must balance considerations of democratic control with considerations relevant to the viability and effective management of the organisation. In support of that submission he referred the Court to s187A of the Act and to the judgment of the Full Court in McLeish v Kane (1978) 36 FLR 80. He also contended that there was no obligation on an organisation to maintain an existing branch structure.

23. Additionally Mr Smith submitted that the powers contained in rule 23 are exercisable by a body consisted of persons who are elected by the membership of the Union. He also referred to the provisions of rule 23 and other rules of the Union which deal with the manner in which affected members continue to be represented.

24. Mr Green referred the Court to some authorities dealing with the power of organisations to supplant the function of branches by imposing picked officials upon them to carry out functions which branch officers were elected to perform. In this context he referred to Thornton v Mackay (1946) 56 CAR 561; Watson v Transport Workers’ Union of Australia (1946) 56 CAR 347; Kenney v Operative Painters and Decorators Union of Australia (1954) 81 CAR 166; Wright v Australian Workers’ Union (1965) 7 FLR 148; Watson v Australian Workers’ Union (1967) 10 FLR 347; Higgins v Nicol (1971) 18 FLR 343 and Luckman v Australian Postal and Telecommunications Union (1978) 36 FLR 68.

25. None of these authorities stand for the proposition that a federal body is unable to validly disband a branch and that any rule permitting the disbandment of a branch is, per se, invalid.  Unlike this case the cases relied on by Mr Green involved situations where rules were struck down as invalid in circumstances where the relevant branches continued to exist but the autonomy of existing branch officials was sought to be curtailed.  In Watson v Transport Workers’ Union of Australia, Piper CJ said as follows (at 348):

    “The test as to whether a rule is tyrannical or oppressive is not how the power thereby conferred has been exercised in a particular case but whether the rule contains in itself the elements of tyranny or oppression so that it could on any reasonably conceivable occasion, be exercised tyrannically or oppressively.  In my view the power in rule 3(f) to suppress or disband a Branch is expressed too broadly;  it gives the Federal Council the absolute power of disbanding any Branch without giving any reason, as no limitations on the power are expressed in the rules nor can I see that any are implied.  Such a power is in my opinion contrary to the general scheme of the management of their affairs in the Branches and must be oppressive to the Branches in the conduct of their business.  No doubt some power of disbanding or suppressing a Branch in proper circumstances is necessary and desirable in the interests of the Union as a whole, but the present power goes further and, particularly when regard is paid to the provisions as to representation by Branches in rule 3(b) and to the fact that there can be only seven branches, gives an autocratic power to the Federal Council to disband or suppress any one branch.”

1. I make two following pertinent observations about that passage from Piper CJ’s judgment which was in part relied on by Mr Green.

   ·    Piper CJ acknowledged that a rule which allowed "disbanding" a branch may be valid.

   ·    Piper CJs concern was that the power to disband was exercisable without limitation.  In this case rule 23(1) provides five foundations upon which disbandment may be based.  The balance of the rule then deals with what flows from Federal Council acting on any one of those foundations.

2. If the power to disband a branch pursuant to rule 23 is seen as giving Federal Council a broad discretion on the issue of disbandment I do not see how that necessarily means that the rule is invalid.  If Watson v Transport Workers’ Union of Australia stands for the proposition that a power to disband in the circumstances of rule 23 is oppressive I decline to follow it, particularly in light of the consistent approach of this Court since Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 where Deane J said (at 164-165):

   “The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members Watson v Australian Workers’ Union, Cassidy v Amalgamated Postal Workers’ Union of Australia; Wiseman v Professional Radio and Electronics Institute of Australasia; Re Airline Hostesses’ Association.”

3. Mr Green submitted in the alternative that rule 23(3) is invalid because it permits disbandment without short term reconstitution thereby leaving one section of any organisation's membership outside a branch.  To test Mr Green's alternative submission the Court put to him whether the subrule would cease to be invalid if in a short space of time some of the other branches of the organisation were also disbanded without contemplation of short term reconstitution.

4. The Court received no cogent submission why, if the alternative submission was correct,  the rule would still be invalid.  It would be a strange result if rule 23 was seen to be invalid today but ceased to be invalid next week having regard to some action taken by the Federal Council in the interim.  Mr Green's alternative submission reveals that the applicants’ essential complaint appears to be not so much the power of the Federal Council to disband a branch but the manner in which it disbanded the Branch.

   Conclusion on validity of rule 23

5. It is an unsound basis upon which to attack the validity of a rule to contend that it may be operated in a capricious manner by those who exercise powers pursuant to the rule.  As Gray J said in Lewis v Maynes (1988) 27 IR 113 at 122:

   “In a sense, any rule giving power to make decisions may be operated capriciously, but the possibility does not bring such a rule into contravention of the Act.”

6. A contention that the rule may be relied upon to disband a branch for vague or uncertain reasons is, in effect, a submission that the rule may be operated capriciously or in bad faith.  It is a submission which is rejected.   It is a consequence of the disbandment of a branch that an affected member is unable to vote in an election for persons wishing to hold office in what was that branch if the Federal Council determines that such members will be directly represented by Federal Council.

7. That consequence does not thereby make rule 23 invalid.  In any event the Federal Secretary and Federal Assistant Secretary of the Union who are members of the Federal Council are elected by the entire membership of the Union and thereby in part represent affected members on Federal Council as well as other members of the Union.  As the Full Court indicated in McLeish there must be a balance between democratic control and the viability of organisations including the viability of branches.

8. It is not oppressive, unreasonable or unjust for members of the Union to be directly represented by Federal Council if they are not attached to a branch.  There is no compulsion for an organisation to maintain a branch structure for all members of the organisation.  In this context I am content to rely upon the passage cited above from Hansch (at 313) in the paragraph concluding with the reference to Imlach v Daley (1985) 7 FCR 457.

9. I also reject Mr Green's submission that rule 23 is invalid because it does not permit a branch to make representations regarding why it should not be disbanded. In Campbell v Crawford (1986) 12 FCR 317 Wilcox J held that (at 341) natural justice did not compel an opportunity for a branch to be heard on the question of rule amendments by a federal body. If the supreme governing body of an organisation is empowered to amend the rules of an organisation so as to affect a branch without consulting branch officers it follows logically that such a body must be empowered to do likewise pursuant to powers it already possesses under current rules and without reference to any existing branch or its officers.

1. Putting it another way, if a rule permitting Federal Council to amend the rules without reference to any branch would be valid it follows, a fortiori, that it is not unreasonable for Federal Council to act to affect a branch pursuant to its existing powers to do so without reference to that branch.  In the instant proceeding the Branch was a creature of the rules of the Union.  It was capable of abolition by rule amendment.  However, the framers of the Union chose the method provided by rule 23.

2. It does not follow that rule 23 is invalid, in fact the contrary is true, having regard to the judgment of Evatt and Northrop JJ in Imlach.

3. I also reject Mr Green's submissions which label the mechanisms provided by rule 23 for representation of affected members as inappropriate. I include in that observation a rejection of the submission that affected members may be allocated to a branch other than an adjoining branch.  So long as the Federal Council has the power to disband a branch and exercises that power in a bona fide way the rule under which it acts cannot be said to be invalid nor can the Federal Council be said to have acted contrary to the rules if it chooses a particular form of representation for affected members.

4. If the decision of the Federal Council is within power the "wisdom or justice” of carrying it into effect is irrelevant.  See Williams v Ward (1984) 8 IR 234 (at 243) per Neaves J. See also Imlach (at 466) where Evatt and Northrop JJ said that the manner in which a power is exercised “does not make the rule conferring the power oppressive, unreasonable or unjust”.

5. An alternative basis of attack upon rule 23 by the applicants was that it offends s195(1)(b)(iv) of the Act by depriving affected members of control of their branch. The rule to show cause did not extend to the making of this submission. However it compels swift rejection in any event on the basis that if a branch is validly disbanded it ceases to have any members who can be said to be impeded in their ability to participate in the affairs of that branch. Given that the attack on the validity of rule 23, by reference to s196(c), has failed and that the submission based on s195(1)(b)(iv) of the Act takes the matter no further, it would be pointless to accede to the application to amend the rule to show cause.

   Remaining Matters

6. It is unnecessary to deal with Mr Green's  remaining submissions as they are all predicated, as he conceded, upon the Court declaring rule 23 to be invalid.  As rule 23 is valid and the Federal Council has taken valid action pursuant to the rule the Branch does not exist.  No such branch has existed since July 1998. See Hansch (at 313). Consequently Mr Hansch ceased to hold office in the Union on 6 July 1998, notwithstanding that the term of his office was not due to expire until 20 April 1999.

7. It follows that Mr Hansch's claim for arrears of wages and superannuation from the termination of his employment on 7 September 1998 must fail. As an employed organiser whose employment was not then related to the holding of an office, Mr Hansch's employment was liable to termination by Federal Council without being afforded the protection provided by s195(1)(c) of the Act.

8. It also follows that on 6 July the first and third applicants ceased to hold office in the Union as the offices to which they were elected ceased to exist when the Branch was disbanded.

9. An additional submission was made by Mr Green which called into question the wisdom of the decision to disband the Branch.  I do no more in response to that submission than repeat what Neaves J said in Williams, as referred to above, pointing out that it is not the Court's role to question the wisdom of a decision made within power.

   Order

10. As no basis has been established for relief pursuant to the rule to show cause and as the relief sought by the applicants for underpayment of Mr Hansch's wages and the like in the accrued jurisdiction of the Court do not raise any additional matters it is appropriate to order that the rule to show cause be discharged and the claims made in the accrued jurisdiction be dismissed.

11. In the event that the Court had been persuaded to make the rule absolute consideration may have had to be given to whether the remaining members of Federal Council, other than the respondents who comprise the Federal Committee of Management, be provided with an opportunity to be heard to make any relief truly effective.  Given the result of this matter the issue does not arise but in future any applicant for a rule should, if he or she seeks to impugn a decision of a body of an organisation seek to make all members of such bodies respondents to the proposed rule to show cause. 

12. It may be that as the judge who granted the rule I should have addressed this issue at an earlier stage but for current practical purposes it is a moot point.  The order of the Court is as follows:

    1.        The rule to show cause be discharged.

    2.        The applicant's claim for relief in the accrued jurisdiction of the Court be dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             9 April 1999

Solicitor for the Applicant:	Mr J Green
Solicitor for the Respondent:	Mr J Smith
Date of Hearing:	8 and 9 April 1999
Date of Judgment:	9 April 1999 (ex-tempore as revised from the transcript)