Briant v Martin

Case [2020] FCA 1009

FEDERAL COURT OF AUSTRALIA

Briant v Martin [2020] FCA 1009

File number: VID 429 of 2020
Judge: SNADEN J
Date of judgment: 17 July 2020
Catchwords:

INDUSTRIAL LAW – applicant dismissed (or purportedly dismissed) from office of secretary of a branch of the Independent Education Union – respondents effected (and otherwise treated as valid) that dismissal – whether applicant guilty of substantial breaches of union rules or gross misbehaviour – whether applicant’s dismissal or purported dismissal was effected contrary to the rules of the union

PRACTICE AND PROCEDURE – application for interlocutory relief under s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) – appropriateness of directions for the observance of union rules – application for interlocutory relief dismissed

Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) – ss 164, 164A, 323 and 329

Federal Court Rules 2011 (Cth) – r 34.06

Cases cited:

AMWU & anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601

Blackadder v Ramsey (2005) 221 CLR 539

Cleworth v Barrow (1978) 20 ALR 359

Cook v Crawford (1981) 52 FLR 1

Johnson v Beitseen (1988) 41 IR 395

Johnston v Cameron [2002] FCA 948

Joyce v Christofferson (1990) 26 FCR 261

Lynch v Hodges (1963) 4 FLR 348

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Yucesan (2008) 169 FCR 202

Re Ferguson (1995) 58 FCR 106

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238

Steuart v Oliver & Ors (No 2) (1971) 18 FLR 83

Magner, Joske’s Law and Procedure at Meetings in Australia (Thomson Reuters, 11th ed, 2012)

Lang, Horseley’s Meetings: Procedure, Law and Practice (LexisNexis, 7th ed, 2015)
Date of hearing: 13 July 2020
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant: Mr M Irving QC with Ms F Knowles
Solicitor for the Applicant: MacLean Legal
Counsel for the Respondents: Mr W Friend QC with Mr Y Bakri
Solicitor for the Respondents: Slater and Gordon Lawyers

ORDERS

VID 429 of 2020
BETWEEN:

ANGELA BRIANT

Applicant
AND:

BRUCE MARTIN

First Respondent

LUCY REEVES

Second Respondent

ROBERT THOMAS (and others named in the Schedule)

Third Respondent

JUDGE:

SNADEN J

DATE OF ORDER:

17 JULY 2020

THE COURT ORDERS THAT:

1.The application for interlocutory relief contained within the applicant’s originating application dated 24 June 2020 is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. By an originating application dated 24 June 2020, the applicant seeks relief under ss 164(1) and 164A of the Fair Work (Registered Organisations) Act 2009 (Cth) (hereafter, the “Act”).  The applicant is a former—and, potentially, the current—branch secretary of the Independent Education Union of Australia (hereafter, the “Union”),…

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AGLC
Briant v Martin [2020] FCA 1009
Case
[2020] FCA 1009
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Briant v Martin involved an application for interlocutory relief by the applicant, a dismissed union secretary, against the union and its executive members. The applicant claimed that her dismissal from the office of secretary of a branch of the Independent Education Union was unlawful as it contravened the union’s rules. The court was required to decide whether the applicant's dismissal was in breach of the union rules and whether the applicant was entitled to interlocutory injunctive relief under section 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth).

The court found that while the applicant had established a prima facie case for interlocutory relief, there were serious questions to be tried concerning the alleged breaches of union rules. The court examined the balance of convenience and determined that the respondents' concerns about potential resignations and further misconduct investigations provided a basis for not granting the relief at that stage. The court concluded that the applicant's evidence regarding her unemployment and mental health effects, while compelling, did not outweigh the respondents' concerns about the union's operations and potential further misconduct.

The court dismissed the application for interlocutory relief, noting that the issues raised were complex and required a full hearing to be adequately resolved. The decision highlighted the importance of adhering to union rules and the careful consideration needed when granting interlocutory relief in such disputes.

Orders

Orders of the court

1. The application for interlocutory relief contained within the applicant’s originating application dated 24 June 2020 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Respectfully, I agree. As his Honour did on that occasion, I shall employ “the traditional language associated with the usual test” but I shall do so conscious of the qualifications thereupon to which the authorities refer.BACKGROUND FACTS The applicant submits that her removal from office as secretary of the Branch and the earlier imposition upon her of constraints upon the manner in which she was to discharge that office each involved contraventions by the respondents of various of the Union’s Rules. To understand those submissions, it is, of course, necessary to delve into the background facts that have led to the present application. Few, if any, of them are in contest. The applicant became the secretary of the Branch in July 2015. In December 2019, she was re-elected to that office for a further three-year term. In September 2019, another union—the Australian Services Union, which represents the employees of the Branch (or some of them)—made complaints about the applicant’s conduct toward some of its members. Those complaints—the existence and initial management of which the applicant did not bring to the Branch Executive’s attention (a fact that assumes some potential significance presently)—were ultimately the catalyst for an investigation that was undertaken at the instigation of the Branch Executive (or, perhaps more accurately, certain members thereof) by a solicitor, Mr Cory Fogliani. Mr Fogliani apparently prepared legal advice arising from his investigation, over which the Branch Executive has (or those members thereof who commissioned it have) maintained a claim of privilege. The applicant has not seen that report (and it is not in evidence before me). The evidence suggests that it was based heavily upon a brief that Mr Fogliani compiled for the purposes of supplying his advice. That brief or “evidence book” (or a draft thereof, the content of which did not materially differ from that of its final form) was provided to the applicant. Mr Fogliani’s advice (hereafter, the “Fogliani Report”) preceded a meeting of the Branch Executive on 6 May 2020. At that meeting, a series of resolutions were passed concerning misconduct “charges” that were to be laid against the applicant. It was resolved that the first respondent (the president of the Branch) should prepare and serve written charges upon her and that a special meeting of the Branch Executive take place on 22 May 2020. It was also resolved that the applicant would be made subject to various controls concerning her ability to make certain payments on the Branch’s behalf, and that she was not to attend the Branch office or communicate with Branch staff unless authorised by the Branch’s president to do so. A written statement of charges—23 in total—was presented to the applicant on 7 May 2020. It is neither convenient nor necessary to recite the charges in detail here. Broadly, they concerned allegations that the applicant had:(1)failed to disclose to the Branch Executive the existence of complaints made against her by some of its staff about the manner in which she had treated or tended to treat them;(2)failed to properly account for certain funds received on behalf of the Branch;(3)acted unreasonably toward Branch staff; and(4)obtained and/or failed to disclose that she had obtained personal benefits—mostly in the form of air travel and related benefits—at the Branch’s expense.

Evidence

Evidence Before The Court

For the reasons that follow, I decline to grant the interlocutory relief that is sought.EVIDENCE The applicant relies upon three affidavits: one that she affirmed on 24 June 2020, another that she affirmed on 7 July 2020 and a third that she affirmed on 13 July 2020. Each was read without objection. The respondents rely upon five affidavits, namely:(1)an affidavit sworn by the first respondent on 9 July 2020;(2)an affidavit sworn by the seventh respondent on 9 July 2020;(3)an affidavit affirmed by the respondents’ solicitor, Daniel Stojanoski on 9 July 2020;(4)a further affidavit affirmed by Mr Stojanoski on 10 July 2020; and(5)a third affidavit affirmed by Mr Stojanoski on 12 July 2020.Each of those affidavits was read without objection. The parties also filed comprehensive and helpful written submissions, for which I record the court’s gratitude.PRINCIPLES TO BE APPLIED The Union is an organisation registered under the Act. Like all such organisations, it operates pursuant to rules that are made and enforced under the statutory regime to which the Act gives effect. Those rules (hereafter, the “Union’s Rules”) provide for the way in which—and the offices and bodies by which—the functions of the Union are divided and discharged. The applicant’s claim for interlocutory injunctive relief is premised upon s 164 of the Act, which provides as follows (by means of subsections that, for reasons neither apparent nor material, are not entirely consecutive):164 Directions for performance of rulesApplication for order directing performance of rules(1)A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.Note: For the meaning of order under this section, see subsection (9).(2)Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.(3)The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.Court may make interim orders(4)At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.(5)An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.Definition(9) In this section:order under this section means an order 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. Inherent in the applicant’s case is a contention that the Branch Executive has operated and is operating in contravention of the Union’s Rules insofar as it (first) imposed restrictions upon the manner in which the applicant was to discharge her duties, and (second) effected and treated as valid her removal from the office of Branch secretary. It is to those alleged contraventions that the applicant seeks to put a stop, including on an interlocutory basis.

Decision

Reasons for decision

The respondents accepted the force in that submission, as do I. It is not so much a discrete basis upon which the court might exercise its discretion to grant interlocutory injunctive relief; but rather an observation that, in order to succeed at trial, the applicant likely needs only to establish one of the other 12 bases upon which she seeks to impugn her dismissal as contrary to the Union’s Rules.Conclusions on prima facie case The applicant has a prima facie case for the interlocutory relief that she seeks (at least insofar as it is directed to her purported dismissal from the office of Branch secretary). Some aspects of her case are stronger than others. Most I do not consider persuasive; but it could not be said that the submissions that the applicant advances are hopeless or foredoomed to fail. There are serious questions to be tried.BALANCE OF CONVENIENCE Both sides led evidence about why interlocutory relief in the form of the applicant’s effective reinstatement to the office of Branch secretary should or should not be granted. The applicant’s evidence was to the effect that:(1)her dismissal has left her unemployed and, at 65 years of age, her prospects of employment in a similar field are limited;(2)to meet her ongoing living expenses, she will be required to access her superannuation, which will be “highly disadvantageous to her”;(3)her dismissal has visited adverse mental health effects, which will not be alleviated unless she is reinstated (or effectively reinstated); and(4)she is presently being denied the fulfilment and enjoyment that she would otherwise derive from her work as the Branch secretary. The respondents’ evidence concentrates upon the problems that, it says, beset the Branch when the applicant was at its helm. It has led evidence about a number of workers’ compensation claims lodged against the Union by employees who claimed to have been inappropriately treated by the applicant. Some of those applications were accepted by the Union’s insurer. Some of the employees that have complained about the applicant’s conduct have only returned to work since the applicant’s dismissal (in one case, from leave; in another, after having resigned). The respondents are concerned that, if the applicant is reinstated (or effectively reinstated), some of the Branch’s staff will resign. The applicant submits that those concerns are overblown and not sustained by the evidence (including the evidence that was led about the workers’ compensation claims recently lodged against the Branch). That contest cannot be resolved at this juncture; but I am satisfied that there is at least some basis for the respondents’ concerns. Furthermore, the respondents have led evidence about additional investigations into the applicant’s conduct that have taken place since her dismissal. They suggest that the applicant may have engaged in other instances of misconduct prior to her dismissal, including in the form of misappropriation of Union funds.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.