Brophy, Patrick & Ors v Mapstone, David John Garland & Ors Bourke, Michael Patrick v Mapstone, David John Garland

[1984] FCA 273

Re: PATRICK BROPHY AND ORS.
And: DAVID JOHN GARLAND MAPSTONE AND ORS.
Re: MICHAEL PATRICK BOURKE
And: DAVID JOHN GARLAND MAPSTONE AND ORS.
Q Nos. 5 and 6 of 1984
Industrial Law
3 FCR 227

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers A.C.J.(1), Keely(1) and Morling(1) JJ.

CATCHWORDS

Industrial Law - performance or observance of rules of organization - dismissal by Branch Council of branch employees occupying non-elected positions of Branch Organiser, etc. - rule providing for motion to become resolution where submitted to each branch councillor and assented to in writing by a majority of councillors - whether rule complied with - effect of presence of additional words on some copies of motion - whether rule required motion to be forwarded to each councillor before votes formally counted - effect on operation of resolution if votes were counted, majority recorded and resolution put into affect before motion forwarded to all councillors.

Whether natural justice applicable to dismissals of employees - dismissals for misconduct - unconditional and unlimited nature of Branch Council's power of dismissal - employees not holders of office under rules or Act and not elected.

Practice and Procedure - costs - Court's power to order costs under s.43 Federal Court of Australia Act 1976 - whether limited by s.197A of Conciliation and Arbitration Act 1904.

Conciliation & Arbitration Act 1904 ss.4, 118A, 141, 197A.

Federal Court of Australia Act 1976 s.43.

Industrial Law - Whether employees of a union not holding elected offices entitled to natural justice before dismissal.

Words and Phrases - "Whether resolutions submitted" when reached certain members after it had been acted upon as having been passed.

HEADNOTE

Held: (1) The provisions of a rule which required a motion to be "submitted" . . . to each member of the branch council" were satisfied where some members of the branch council received the motion after the majority of the members of the branch council had voted in favour of the motion and it had been acted upon.

(2) Such a rule contemplates that the branch secretary will forward a ballot paper to each member of the branch council before a formal count is taken of members' votes.

(3) Employees holding positions as branch organisers or as secretary organisers or industrial officers of a union branch, who were not the holders of an office within the meaning of the Conciliation and Arbitration Act 1904 (Cth), s. 4 were not entitled to be accorded natural justice before being dismissed.

Ridge v. Baldwin (1964) AC 40; Stevenson v United Road Transport Union (1976) 3 All ER 29, applied

McKay v. Oliver (1967) 15 FLR 39; McKay v Australian Workers' Union (1968) 12 FLR 182; McKay v Duncan (1968) 12 FLR 216; Hodgson v Wilkinson (1968) 12 FLR 191; Barnes v Oliver (1970) 16 FLR 366, distinguished.

(4) The jurisdiction of the Federal Court of Australia to award costs is subject to s. 197A of the Conciliation and Arbitration Act 1904, notwithstanding that the expression "the court" is defined by s. 4 of the Act to be the Australian Industrial Court, since that definition gives way to a contrary intention and such a contrary intention is to be discerned from s. 118A of the Act.

Stapleton v. African Lion Safari Pty Ltd (1982) 43 ALR 385, approved

HEARING

Brisbane, 1984, August 9, 10; September 5. #DATE 5:9:1984

APPEAL.

Appeals from judgment and orders of Northrop J.

J. Trew Q.C. and R. Tracey, for the appellant.

C. Hampson Q.C. and P. Amerena, for the respondent.

J. Douglas, for the Attorney-General.

Cur. adv. vult.

Solicitors for the applicant: Patrick J. Mullins & Mullins.

Solicitors for the respondent: A.J. Macken & Co.

G.F.V.

ORDER

1. The appeal be dismissed.

Appeal dismissed.

JUDGE1

These are appeals from a judgment of a judge of the Court dismissing an application brought by the appellants pursuant to s. 141 of the Conciliation and Arbitration Act 1904 ("the Act"). The learned Judge also dismissed an application under s. 140 of the Act, but no order was sought by the appellants in respect of that judgment.

In the latter part of 1982 elections were held for officers of the Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees ("the Branch") which is a branch of the Federated Clerks' Union of Australia ("the Union") an organisation of employees under the Act. At the election a number of existing officers of the Branch were defeated. Subsequently an election inquiry under the Act was conducted by the Full Court of the Federal Court and judgment was given on 3 November 1982 in favour of the persons elected.

On 11 February 1983 the Branch Council dismissed ten employees of the Branch in circumstances to which we shall refer in some detail later in these reasons.

The appellant Bourke is a member of the Branch Council. On 14 October 1983 he commenced proceedings against the twenty other members of the Branch Council and the Union. The central issue in the proceedings was whether a Branch Council resolution of 11 February 1983 dismissing the ten employees employed by the Branch was valid. The ten employees were added as applicants in the proceedings and eight of them, with Bourke, are the appellants in the appeal. The respondents are the members of the Branch Council (other than Bourke) and the Union.

Some of the dismissed employees occupied positions as Branch Organisers in the Branch. Others were either Secretary/Organisers or Industrial Officers in the Branch. Although the Rules of the Branch do not specifically require persons holding those positions to be members of the Union, an implication that they must be members can be drawn from the Rules.

The control and management of the Branch is vested in the Branch Council. It consists of the Branch President, the Branch Vice-President, the Branch Secretary and the Assistant Branch Secretary, who are the four officers of the Branch, together with seventeen district representatives elected in accordance with the Rules. The Branch Council meets at least three times a year but provision is made in the Rules for the holding of extraordinary meetings. Provision is also made by Rule 31(c) for the consideration of motions without the necessity of a Branch Council meeting. This provision is in the following terms:

"31. BRANCH COUNCIL VOTING

. . .

(c) For the convenience of members of Branch Council, a motion moved

and seconded may be submitted in writing to the Branch President, who shall thereupon cause a copy of same to be submitted by the Branch Secretary to each member of the Branch Council, and upon a majority of them giving their assent in writing, such motion shall thereupon become a resolution of the Branch Council, as though same had been passed at a constituted Branch Council meeting."

Rule 32 gives power to the Branch Council to employ and dismiss employees. The rule provides as follows:

"32. EMPLOYMENT OF BRANCH STAFF

The Branch Council may make such additions or reductions to Branch Staff as it considers necessary and shall have authority to suspend or dismiss from office any employee. Branch Executive shall have power to make such temporary appointments to staff vacancies as is considered necessary subject to confirmation by Branch Council or to suspend any Officer or employee of the Branch at any time providing that such Officer or employee shall have the right of appeal to Branch Council."

The duties of Secretary/Organisers and of Branch Organisers are set out in Rules 46 and 47 respectively. Secretary/Organisers' duties include the keeping of a register of all members employed in their district, enrolling new members, issuing official receipts, attending to correspondence affecting their sub-branch or district, attending meetings of Branch Council (without the right to vote) and reporting in writing to the Branch Secretary on matters requiring the Secretary's attention. The duties of Branch Organisers include enrolling new members and accepting entrance fees and contributions, inspecting time and wages books of employers to ascertain that correct moneys are paid to employees, investigating and determining complaints by members, general organising work and investigating any matter as required by the Branch Secretary. They are also obliged to attend meetings of Branch Council and the Branch Executive, but do not have the right to vote thereat.

The employees were not Branch Officers under the rules, were not the holders of an "office" in the Branch within the meaning of s. 4 of the Act and were not required to face an election for appointment or re-appointment and accordingly s. 133(1)(f) did not apply to their dismissals.

The facts surrounding the dismissal of the employees are set out in the judgment of the learned trial judge. The following account of the facts is taken substantially from his Honour's judgment. The November 1982 elections were held after a fiercely fought campaign. A group of candidates, including a number of the respondents, did not hold office prior to the election. Some of the candidates, including most of the respondents, formed a ticket called the "Better Deal" team and campaigned on a programme of reform within the Branch. The respondents Mapstone, Linnane, Callaghan and Woods were members of the "Better Deal" team and were elected to the offices of President, Vice-President, Secretary, and Assistant Secretary respectively. They thus became the officers of the Branch. Following the election the "Better Deal" team had a clear majority of members and supporters on the Branch Council. It became apparent after the election that the new Council proposed to dismiss most, if not all, of the employees of the Branch. Some of those employees had been unsuccessful candidates in the election and were opposed to the "Better Deal" team. The "Better Deal" team was a reforming group and wanted to restructure the Branch to provide what they considered to be a more efficient and better service to members. To facilitate this they wanted to remove employees who they thought might be hostile to them and who they felt could not be relied upon to implement new procedures.

In the proceedings giving rise to the election inquiry undertakings were given by some of the respondents that no employee would be dismissed until the election inquiry was completed. On 10 February 1983 the inquiry was discontinued and the respondents who had given the undertakings were released from their undertakings. Thereupon some members of the Council, including the officers, initiated action to dismiss the ten employees. On 10 February 1983 the respondent Woods told the Secretary that he had proposed a motion, which had been seconded by Linnane, relating to the dismissal of the ten employees. He informed the Secretary that he wanted the motion to be submitted to members of Council pursuant to the provisions of Rule 31(c). Later on 10 February 1983 the President was handed a document containing the motion. That document was in the following terms:

"TO: BRANCH PRESIDENT

FROM: ASSISTANT BRANCH SECRETARY

DATE: FEBRUARY 10 1983

The following formal motion is submitted to you in accordance with Branch Rule 31(c):-

MOVED: C. WOODS

'That the appointment of David Lewis, Patrick Brophy, Gordon McPherson, John Nucifora and Paul Griffiths as Branch Organisers be terminated forthwith.

And that the appointment of Geoff Purcell and Vince McKenna as Secretary/Organisers be terminated forthwith.

And that the appointment of Ted Kowalski and Graham Treacey as Industrial Officers be terminated forthwith.

And that the appointment of John Fox be terminated forthwith.'

SECONDED: D. LINNANE

(SIGNED)

. . . . . . . . . . . . . . . . . .

C. WOODS"

The document was signed by the mover, but not by the seconder. However, it was not argued that the absence of the signature by the seconder invalidated the motion. It is plain that Linnane did, in fact, second the motion. After he had been handed the document the President handed to the Secretary a document in the following form:-

"TO: BRANCH SECRETARY

FROM: BRANCH PRESIDENT

DATE: FEBRUARY 10 1983

In accordance with Branch Rule 31(c), the following formal motion is hereby submitted to you:-

MOVED: C. WOODS

'That the appointment of David Lewis, Patrick Brophy, Gordon McPherson, John Nucifora and Paul Griffiths as Branch Organisers be terminated forthwith.

And that the appointment of Geoff Purcell and Vince McKenna as Secretary/Organisers be terminated forthwith.

And that the appointment of Ted Kowalski and Graham Treacey as Industrial Officers be terminated forthwith.

And that the appointment of John Fox be terminated forthwith.'

SECONDED: D. LINNANE

(SIGNED)

. . . . . . . . . . . . . . . . D. MAPSTONE"

Ballot papers had already been prepared and were addressed to each member of the Branch Council. The ballot papers were under the letterhead of the Branch and indicated that they had been typed at the direction of the Vice-President. They were in the following form:

"February 10 1983.

TO: ALL BRANCH COUNCILLORS AS ADDRESSED

Please be advised that the following formal motion has been moved and seconded and is now submitted to you for postal vote of Branch Council in accordance with Rule 31(c):- MOVED: C. WOODS

'That the appointment of David Lewis, Patrick Brophy, Gordon McPherson, John Nucifora and Paul Griffiths as Branch Organisers be terminated forthwith.

And that the appointment of Geoff Purcell and Vince McKenna as Secretary/Organisers be terminated forthwith.

And that the appointment of Ted Kowalski and Graham Treacey as Industrial Officers be terminated forthwith.

And that the appointment of John Fox be terminated forthwith.'

SECONDED: D. LINNANE

Are you in favour of the above motion? YES ------- NO -------

Signed: . . . . . . . . . . . . . . . C. WOODS Yours faithfully,

(Signed)

BERNADETTE CALLAGHAN

BRANCH SECRETARY.

NOTE: Please return this vote in the stamped addressed envelope provided, to the Branch Secretary by return mail."

There were twenty-one ballot papers and each one contained the name of a member of the Branch Council. Some of the ballot papers had the words "This action to be taken in accordance with Rule 32" inserted at the end of the motion, the whole of the motion and those words being enclosed within inverted commas. On certain other ballot papers inverted commas appeared at the commencement of the motion and nowhere else. It was conceded by counsel for the appellants, and properly so, that Rule 32 was the only relevant rule dealing with dismissal of employees.

On the afternoon of 10 February 1983 Mapstone received his ballot paper, recorded his assent to the motion and returned his ballot paper to Callaghan. Arrangements were made to hand-deliver the ballot papers on 11 February to those members of Council who worked or resided in Brisbane and to two members in the Rockhampton area and to post the ballot papers to the other members of the Council. In the result some ballot papers were posted on 10 February, others (the majority) were handed personally to Branch Council members on the morning and afternoon of 11 February 1983, a few were posted on 11 February 1983 and one was delivered personally on 14 February 1983. Those that were posted on 11 February 1983 were not hand-delivered because it was impracticable to do so.

By the afternoon of 11 February thirteen assents in writing had been received. Thereafter notices of termination of employment were sent to the employees. Each notice stated that "The Branch Council of this Union has voted to terminate your appointment as (Secretary/Organiser) forthwith." and enclosed a cheque for one week's pay in lieu of notice.

After 11 February 1983 assents in writing were received from other members of the Council, while one non-assent was received. Ballot papers were not returned by five of the Council members. The ballots papers which were posted were not received by the addressees until after the notices of termination of employment were sent to the employees.

Upon these facts, the appellants claimed that the Branch Council had not observed the requirements of Rule 31(c) and that accordingly the dismissals were invalid. They further argued that, even if the strict requirements of Rule 31(c) had been complied with, it was not open to Branch Council to terminate the employees' services without complying with the rules of natural justice and affording them a reasonable opportunity of being heard in opposition to the proposal to dismiss them.

The submission that the requirements of Rule 31(c) were not complied with proceeded upon the basis that the provisions of the rule were mandatory in character and that strict compliance with them was therefore necessary. It was then argued that the provisions of the rule had not been complied with in that, first, the motion was not circulated to all members of Council in identical terms, and second, some voting papers were not posted until after the first of the dismissals had been effected.

The learned trial judge found that the requirements of Rule 31(c) were mandatory in character and the correctness of this finding was not challenged before us. However, he found that the facts did not establish that there had been any non-compliance with the requirements of the Rules. Notwithstanding the careful arguments put to us by counsel for the appellants, we are of the opinion that his Honour was correct in so finding.

Notwithstanding the inclusion on some ballot papers of the additional words to which we have referred or the presence or the absence of inverted commas the terms of the ballot papers conveyed in unambiguous words precisely what the proposal was with respect to which the members were being asked to vote. The trial judge correctly held that the additional words did not go to the substance of the motion, they were not capable of causing any confusion and did not constitute a non-compliance with the requirements of Rule 31(c). What that rule relevantly required was that the motion be submitted to each member of the Branch Council. The motion, as moved and seconded, was in fact submitted to each member of the Branch Council. Had the additional words in any way changed the substance or sense of the motion, then the position would have been different. But as this was not the case, there was no departure from the requirement of the Rule.

Counsel for the appellants argued that the motion had not been 'submitted' to members of the Branch Council in accordance with Rule 31(c). He argued that 'submitted' imported the notion of reasonable contemporaneity and that the rule contemplated that each member of the Branch Council would receive his ballot paper at approximately the same time. The validity of the resolution was attacked on the ground that a period of three days elapsed between the receipt of the first and last ballot papers by Council members.

Whilst we accept that some requirement of contemporaneity is contemplated by the Rule we would consider that it is to be applied at the point at which the ballot papers are dispatched by the Secretary. We are satisfied this occurred, having regard to the exigencies of time and of the difficulties occasioned by the widespread area within which the members resided. There may be something to be said for the Secretary engaging the same method of dispatch to all members - for example, distribution of the ballot papers by post. However, there is no requirement to this effect in the Rule and we do not think it can be implied as a matter of law. The fact that it took three days for some ballot papers to reach some members is not a reason for invalidating the resolution.

There is more substance in the argument that some votes were counted prematurely. It is true that Rule 31(c) provides that "upon a majority of (members of the Branch Council) giving their assent in writing, such motion shall thereupon become a resolution of the Branch Council . . ." and that there is no specific requirement in the rule that the votes of members be not counted until all ballot papers have been distributed. Nevertheless, we think there is force in the argument of counsel for the appellants that the rule contemplates that the Branch Secretary will forward a ballot paper to each member of the Branch Council before a formal count is taken of members' votes.

But assuming without deciding that the appellants' argument is correct on this point, it does not lead to the result that the motion was not properly adopted as a resolution and acted upon. Acceptance of the appellants' argument leads only to the result that, instead of the resolution becoming effective on 11 February 1983, it became effective three days later on 14 February by which time ballot papers had been sent to all Branch Council members. On any construction of the rule, by 14 February all of its requirements had been complied with. By that date a copy of the motion had been submitted by the Branch Secretary to every member of the Branch Council, and a clear majority of them had given their assent to it in writing. It thereupon became a resolution of the Branch Council "as though it had been passed at a constituted Branch Council meeting." Thus, even if the dismissals were not effected on 11 February, they certainly took effect on 14 February. We therefore think that, subject to the argument that the employees were denied natural justice, the action taken by the Branch Council was effective to terminate their services as employees of the Branch.

We turn now to consider the argument that the decision to dismiss the employees was a nullity because it was taken in breach of the rules of natural justice. The argument proceeded upon the basis that, because of the importance and status attaching to their positions as Secretary/Organisers, Branch Organisers or Industrial Officers, they were entitled to be heard in their defence before they were dismissed for misconduct. It was accepted that an employer had the right to dismiss a mere employee for misconduct or for any other reason or for no reason without complying with the rules of natural justice. See Ridge v Baldwin (1964) A.C. 40 per Lord Reid at p. 65. But it was argued that when an employee of a union is employed in a position of responsibility it is not competent for the union to dismiss him for misconduct without affording him the right to be heard in his defence. Support for this proposition was sought to be found in Stevenson v United Road Transport Union (1976) 3 All E.R. 28 and, on appeal, (1977) 2 All E.R. 941. However, we think that case is distinguishable from the present. It is clear that the basis of the decision on appeal in Stevenson's Case was that the power of the executive committee of the union to dismiss Stevenson was conditional. It had power to dismiss him only if he failed to give satisfaction to the Executive Committee. This appears from the following passage in the judgment of Buckley L.J. (who delivered the judgment of the court) at p.949:

"The plaintiff was or is employed by the union. The executive committee is, as its name indicates, an executive body established by the union to perform delegated functions on the union's behalf. The extent of its powers are, at any rate for present purposes, to be found in the rules. Under r 15(1) and (2) the committee can dismiss officials of the union, but only if they have failed to give satisfaction to the committee. The words 'so long as they give satisfaction to the Executive Committee' clearly refer, in our opinion, to satisfaction in relation to the performance by the official of his functions and duties as an official of the union. So to be competent effectively to dismiss the plaintiff, the executive committee had, in our judgment, first to reach a conclusion that the plaintiff's performance as an official of the union had been unsatisfactory. This is, we think, clearly a decision of a judicial kind and one which the committee could not fairly reach without letting the plaintiff know in what respects his conduct was considered to have been unsatisfactory, giving him an opportunity to explain his conduct and put his own case. In other words, the case is one of a kind to which that principle of natural justice which is expressed in the maxim 'audi alteram partem' applies."

Earlier in his judgment his Lordship had said (at p.949):

"In our judgment a useful test can be formulated in this way. Where one party has a discretionary power to terminate the tenure or enjoyment by another of an employment or an office or a post or a privilege, is that power conditional on the party invested with the power being first satisfied on a particular point which involves investigating some matter on which the other party ought in fairness to be heard or to be allowed to give his explanation or put his case? If the answer to the question is Yes, then unless, before the power purports to have been exercised, the condition has been satisfied after the other party has been given a fair opportunity of being heard or of giving his explanation or putting his case, the power will not have been well exercised."

In the present case the power of the Branch Council to dismiss the appellants was in no way conditional. Rule 32 gave it power to dismiss any employee for any, or for no, reason. Thus the employees had no greater right to be heard in their defence before they were dismissed than employees of other employers. The general rule referred to by Lord Reid in Ridge v Baldwin (supra) applies. In these circumstances the argument that the employees were entitled to be afforded natural justice by the Branch Council before they were dismissed for misconduct fails.

In McKay v Oliver (1967) 15 FLR 39 the question arose whether an elected organizer employed by a branch of a union was entitled to be heard on the question of his dismissal. Differing opinions on this question were expressed by Spicer C.J. and Joske J. Spicer C.J. said (at pp.42-43):

"In addition to the elected organizers the 'Branch Executive may employ additional Organisers'.

There cannot, I think, be any doubt that the additional organizers are mere employees of the branch executive and that their services may be terminated by the branch executive at any time for any reason or indeed for no reason at all. In relation to their dismissal there can be no question of the application of the principles of natural justice.

The elected organizers are also employed by the branch. They are, it is true, elected for a term but their holding of the office is 'subject to removal as provided in these rules'. They are employees having duties similar to those of the additional organizers. It is clear that despite the term for which they are elected their services can be, at least in some circumstances, dispensed with during that term. Indeed 'the Branch Secretary may dismiss any Organiser for neglect of duty, misappropriation of money or goods belonging to the Union, or if the services of such organiser are not required by the Branch'. An organizer so dismissed has a right of appeal against such dismissal to the branch executive.

I am of the opinion that the branch secretary under this provision has power to dismiss an organizer merely because his services are no longer wanted by the branch. . . .

I am therefore of the opinion that the branch executive has power to dismiss an organizer at will and that in relation to such a determination by it there is no room for the introduction of the principles of natural justice."

Joske J. was of a different opinion. At p.44 he said:

"The plaintiff, being the holder of an office under statute, clearly comes within this statement. The principles of natural justice have not been observed in his purported dismissal and it is therefore invalid."

It is to be observed that in that case the plaintiff was an elected organizer and also the holder of an office, whereas in the present case none of the employees were elected or held an office in the relevant sense. We do not think anything said by Joske J. supports the appellants' argument in this case.

In the same case Kerr J. found it unnecessary to decide the question whether the branch executive should have applied the principles of natural justice in dealing with the dismissal of the organizer. In obiter dicta he expressed the view that, in the case of an elected officer of a trade union in respect of whom the union has only a limited power of dismissal on specific grounds, a decision to dismiss the official can only be taken in accordance with the rules of natural justice. However, it is clear from his observations that it was his view that, in the case of employment of an organizer for no fixed term and with respect to which no special provisions arising from the rules were applicable, an organization registered under the Act might dismiss the organizer without giving him the benefit of the principles of natural justice. In the case before that court it was his view that, on the proper construction of the elaborate rules of the organization in the light of the history of the rule amendments, the rules did accord to organizers who were not elected for fixed terms but merely engaged by appointment, the same protection under the rules of natural justice as those rules provided for elected organizers. See also McKay v. Australian Workers' Union (1968) 12 FLR 182; McKay v. Duncan (1968) 12 FLR 216; Hodgson v. Wilkinson (1968) 12 FLR 191; Barnes v. Oliver (1970) 16 FLR 366. On the facts of the present case, the power of dismissal contained in rule 32 is unconditional and unlimited.

McKay v Oliver (supra) was considered in Barnes v Oliver (1970) 16 F.L.R. 366. In that case the Commonwealth Industrial Court (Spicer C.J., Kerr and C.A. Sweeney JJ.) held that on the true construction of the rules of the organisation there in question, the organisation's Branch Executive, in exercising its power to remove a Branch Secretary for neglect of duty, was bound to observe the principles of natural justice. By Rule 67 of the rules of the organisation it was provided that the Branch Secretary should hold office for five years and he was given extensive duties and responsibilities. He was empowered to convene meetings of the Branch and of the Branch Executive and was entitled to speak and vote at all meetings. The rule provided that the Branch Executive, by a two-thirds majority, should have power to remove the Branch Secretary for neglect of duty, or for the misappropriation of money or goods belonging to the Union. C.A. Sweeney J. (with those judgment Spicer C.J. and Kerr J. concurred) said at pp. 389-390:

"The considerations which have led me to conclude that the branch executive, in purporting to exercise the power conferred by r. 67, was bound to observe the principles of natural justice may be summarized as follows: (1) the great importance of the duties of the branch secretary; (2) the elective nature of the office; (3) the fact that, 'subject to removal as provided in these Rules', he is to hold office for a term of five years; (4) the nature of the investigation necessarily involved in ascertaining the facts relevant to the existence and the exercise of the power; (5) the relevance of any reason which led the secretary to follow a particular course of conduct whether that consisted of a decision to act in a particular way or refrain from acting; (6) the value judgments to be made in deciding the questions whether that course of conduct should be characterized as 'neglect of duty' and should lead to removal from office; (7) the fact that matters relevant to the existence and the exercise of the power might be within the knowledge of the secretary but not known to the executive; (8) the importance of the consequences of the exercise of the power of removal to the secretary and to the members generally."

None of the considerations referred to by C. A. Sweeney J. apply in the present case, and we do not think that the decision in Barnes v Oliver supports the appellants' argument.

In the circumstances of this case there was no scope for the application of the rules of natural justice. The reason they were dismissed was that the "Better Deal" team members, who formed the majority on the Council, wished to replace the appellants with employees who they felt would be more sympathetic to their views and future plans for the Union. The appellants were not dismissed for misconduct. This was the finding of the learned Judge and we see no ground for questioning its correctness. The issue was the subject of careful investigation by him. The resolution which terminated their services made no mention of misconduct of any kind. It is true that there was some evidence before the trial judge that complaint was made by certain Branch Council members in relation to the work performance of some of the appellants, but the evidence did not establish that the Branch Council terminated the appellants' employment because of any alleged misconduct. Counsel for the appellants sought to extract from an edition of the Union's journal published some time after the dismissals that the employees had, indeed, been dismissed for misconduct. Assuming without deciding the admissibility of the journal as against the respondents on this issue, it is our view that an inference contrary to the finding of the learned judge and the direct evidence should not be drawn from the contents of the journal.

It is to be observed that the only basis upon which relief is claimed in this case by the appellants is that as members they are entitled to seek an order under s. 141 of the Act giving directions for the performance or observance of the rules of the organization by the individual respondents. It is not a proceeding for wrongful dismissal. Accordingly the task of the appellants was to point to a rule which expressly or impliedly required those respondents to extend natural justice to the appellants in relation to the proposed dismissal. There was no such rule.

We are therefore of the opinion that the appeals must be dismissed.

The appellants sought to appeal against a "judgment" of the learned trial judge that the court had jurisdiction to make an order for costs against the appellants but, as his Honour had not made an order, no such appeal could be brought. It was submitted by counsel for the respondents that in the event of judgment in these appeals being in favour of the respondents the Court should make an order that the appellants pay their costs. He contended that notwithstanding the provisions of s. 197A of the Act this Court is empowered to make such an order by s. 43 of the Federal Court of Australia Act 1976.

Section 43 is in the following terms:-

"43. (1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge."

Section 197A of the Act is in the following terms:-

"197A. A party to -

(a) a proceeding before the Commission or the Registrar;

(b) a proceeding, including an appeal, before the Court, or before a court of a State or Territory, in a matter arising under this Act; or

(c) a proceeding before the High Court -

(i) being an appeal from a judgment, decree, order or sentence of the Court or any other court under this Act; or

(ii) being a proceeding in respect of an award proposed to be made, made or purporting to have been made, a decision proposed to be given, given or purporting to have been given, or any other act proposed to be done, done or purporting to have been done, under this Act or in respect of a failure to make an award, give a decision or do any other act that is required or permitted by this Act to be made, given or done,

shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

Counsel for the respondents contended that upon its proper construction, in the light of s. 118A of the Act, the expression "the Court" in para. (b) of s. 197A did not include the Federal Court exercising, in its Industrial Division, jurisdiction conferred upon it by s. 118A(1). Section 118A(1) is in the following terms:

"118A. (1) On and after the date of commencement of this Part -

(a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and

(b) a reference in this Act to the Court (other than in sections 104, 105 sub-sections (1) and (2) of section 111 and sections 114, 115, 116, 117, 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as a references to the Federal Court of Australia in its Industrial Division."

If the expression "the Court" in para. (b) of s. 197A includes the Federal Court then the contention must fail. Adopting views expressed by the learned trial judge in this case and in Viner v Australian Building Construction Employees and Builders' Labourers Federation (1981) 38 ALR 550, counsel urged that the expression "the Court" in s. 197A means, by definition in s. 4 of the Act, the Australian Industrial Court and does not include the Federal Court; that by reason of the provisions of para. (b) of s. 118A(1) of the Act the power of the Australian Industrial Court under s. 116 of the Act to make orders for costs against a party to proceedings under the Act is not vested in the Federal Court of Australia; that para. (b) of s. 118A(1) of the Act is concerned with jurisdiction and powers and does not say that references in the Act to the Australian Industrial Court shall be read as references to the Federal Court of Australia; that the Federal Court is not one of the specified courts to which s. 197A is directed and the fact that proceedings in a matter arise under the Act does not make it so.

It must be observed, however, that, although the power of the Australian Industrial Court to make orders for costs under s. 116 is not vested in the Federal Court by s. 118A that section did vest in that court the jurisdiction under the Act of the Australian Industrial Court. Thus when, according to that vesting, the Federal Court exercises jurisdiction in a matter arising under the Act, s. 43 of the Federal Court Act speaks in relation thereto and confers power to make an order for costs except where the proceedings before the Court are of a class in respect of which another Act provides that costs shall not be awarded. Section 197A is such a provision of another Act if the Court referred to in para. (b) s. 197A includes the Federal Court. It inevitably appears however that it does so because of the terms of para. (b) of s. 118A(1). It is apparent that the expression "that jurisdiction" in para. (b) of s. 118A(1) refers to the jurisdiction vested in or exercisable by the Federal Court by para. (a) of that section, namely, the jurisdiction and powers vested in or exercisable by the Australian Industrial Court pursuant to the Act as so vested in or exercisable by the Federal Court pursuant to s. 118A(1)(a) of the Act. It is in respect of matters arising in the Federal Court in its Industrial Division that para (b) of s. 118A(1) provides that a reference to the Court shall be read as a reference to the Federal Court of Australia in its Industrial Division. The present proceedings Do arise in respect of such a matter. Section 4 of the Act provides that therein the expression "the Court" means the Australian Industrial Court except where otherwise clearly intended. In para. (b) of s. 118A(1) there is manifested a clear intention that, in relation to matters arising in the exercise of the jurisdiction vested in it by s. 118A(1), the expression "the Court" in the Act includes the Federal Court and, accordingly, that expression in para. (b) of s. 197A of the Act includes the Federal Court. As the matter before us is an appeal in a matter arising under the Conciliation & Arbitration Act 1904 it is clear that the power of the Federal Court of Australia under s. 43 of the Federal Court of Australia Act to award costs extends to those proceedings but subject to the provisions of s. 197A. This was the conclusion expressed by Ellicott J. in Stapleton v African Lion Safari Pty. Ltd. (1982) 43 ALR 385. Mr. Douglas who appeared for the Attorney General to make submissions on the construction of s. 197A of the Act and Mr. Trew for the appellants supported this conclusion.

In our view the considerations set forth above provide strong support for this conclusion, so strong as to prevail against the contrary view.

There is no suggestion that this appeal was instituted vexatiously or without reasonable cause. Accordingly, although the appeal is dismissed the Court does not award costs to the respondents.