FEDERAL COURT OF AUSTRALIA
Brown v Health Services Union (No 4) [2012] FCA 1376
Citation: Brown v Health Services Union (No 4) [2012] FCA 1376 Parties: CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE v HEALTH SERVICES UNION AND OTHERS NAMED IN THE SCHEDULE
HSUEAST v NSW MINISTER FOR INDUSTRIAL RELATIONS AND OTHERS NAMED IN THE SCHEDULE
File numbers: NSD 621 of 2012
NSD 735 of 2012Judge: FLICK J Date of judgment: 28 November 2012 Catchwords: INDUSTRIAL LAW – registered organisations – dysfunctional registered organisations – scheme of administration – extension of time for completion – extension of time for particular components of scheme – effect of intervening events – whether administrator’s role should cease
PRACTICE AND PROCEDURE – open justice – access to documents on court file – affidavits – presumption in favour of access to evidence relied upon – particular importance of open justice in proceedings of broad public interest – Federal Court Rules 2011 (Cth) r 2.32
Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 200, 256, 265, 315, 323
Federal Court Rules 2011 (Cth) r 2.32
Federal Court Rules (Cth) O 46 r 6
Industrial Relations Act1996 (NSW) s 290B
Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW)Cases cited: Asmar; in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289, referred to
Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609, (2002) ATPR ¶41-873, applied
Brown v Health Services Union [2012] FCA 644, 291 ALR 497, referred to
Brown v Health Services Union (No 2) [2012] FCA 1014, referred to
Brown v Health Services Union (No 3) [2012] FCA 1246, referred to
Katherine Jackson v Peter James Mylan [2012] NSWSC 552, referred to
P v Australian Crime Commission [2008] FCA 1336, 250 ALR 66, cited
Richardson v Commissioner of Taxation [2006] FCA 1306, 64 ATR 267, appliedDate of hearing: 22, 28 November 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 48 Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the New South Wales, Victoria No 1 and Victoria No 3 Branches of the Health Services Union: Mr P Punch of Carroll & O’Dea Lawyers Counsel for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the New South Wales, Victoria No. 1 and Victoria No. 3 Branches of the Health Services Union (financial reporting requirements): Ms C Howell (22 November 2012 only) Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the New South Wales, Victoria No. 1 and Victoria No 3 Branches of the Health Services Union (financial reporting requirements): Slater & Gordon (22 November 2012 only) Solicitor for the Commonwealth Minister for Employment and Workplace Relations: Mr V Gostencnik of Corrs Chambers Westgarth Counsel for the…
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- Case
- [2012] FCA 1376
- Decision Date
CaseChat Overview and Summary
In its decision, the court ruled that the administrator's role should cease upon the declaration of the results of the elections for the offices in the respective branches. It extended the time for compliance with the administration scheme, allowing the process to continue until the declaration of the election results. The court also clarified the timetables for the elections and made specific orders for the appointment of administrators for the branches. Furthermore, the court granted access to certain affidavits and evidence to the public, adhering to the principle of open justice, while maintaining the confidentiality of some specific documents.
The final orders of the court included amendments to the previous orders, adjustments to the timeline for the administration, clarifications on the election schedules, and specific appointments of administrators for the branches. The court also mandated that certain records be kept and provided to the Health Services Union upon request. Additionally, it allowed all persons to inspect specified affidavits and a letter from the Fair Work Australia General Manager, subject to certain exceptions.
Orders
Orders of the court
1 The Orders of the Court made 21 June 2012 (as varied) be amended to insert the following Order numbered 12:
“An order that:
(i) upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the Victoria No. 3 Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be the Administrator and James Simmonds cease to be the Assistant Administrator of that Branch;
(ii) upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the New South Wales Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be Administrator, Brian Daley and James Simmonds cease to be Assistant Administrators; and
(iii) James Simmonds be appointed as Administrator of the Victoria No.1 Branch under the scheme attached as Appendix A.”
2. The time for compliance with paragraph 28 of Appendix A to the Orders made on 21 June 2012 (as varied) is extended to the date upon which the Australian Electoral Commission issues to the Administrator of the Victoria No 1 Branch a copy of the declaration of the results of the elections for the offices in that Branch.
3. Paragraph 25 in Appendix A to the Orders of the Court made 21 June 2012 (as varied) be amended by the addition of the following at the conclusion thereof:
“To avoid doubt:
(vi) the elections for the New South Wales and Victoria No.3 Branch contemplated by clause 24 are to be conducted in accordance with the schedule prescribed by the Returning Officer for those elections as determined by him on or about 5 September 2012 pursuant to Section 193 of the Act and notwithstanding the provisions of Rule 29A of the Rules;
(vii) the elections in the Victoria No.1 Branch contemplated by clause 24 will be conducted in accordance with the schedule prescribed by the Returning Officer for those elections as determined by him on or about 5 September 2012 pursuant to Section 193 of the Act, as such schedule was varied in accordance with the Orders made by Justice Tracey in Matter VID 829/2012 on 16 November 2012 (as varied), notwithstanding the provisions of Rule 29A of the Rules.”
4. Paragraph 29 in Appendix A to the Orders of the Court made 21 June 2012 (as varied) be amended by deleting the contents thereof and inserting in lieu thereof the following:
“29.1 Upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the Victoria No. 3 Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be the Administrator and James Simmonds cease to be the Assistant Administrator of that Branch
29.2 Upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the New South Wales Branch:
(k) The Honourable Michael Francis Moore shall cease to be the Administrator;
(l) the persons declared elected in those elections shall forthwith take up the offices to which they are elected, and to avoid doubt shall do so notwithstanding the provisions of Rule 29A of the Rules;
(m) Brian Daley shall cease to be the Assistant Administrator (NSW);
(n) James Simmonds shall cease to be the Assistant Administrator (Victoria); and
(o) Paragraph 27A shall cease to have effect.”
5. In Appendix A to the Orders of the Court made 21 June 2012 (as varied) insert after Paragraph 29 the following new Paragraph 29A as follows:
“29A Administrator of Victoria No.1 Branch
29A.1 Upon the Honourable Michael Francis Moore ceasing to be the Administrator pursuant to Paragraph 29.2 (a), James Simmonds shall be appointed as Administrator of the Victoria No.1 Branch;
29A.2 From the date of appointment of James Simmonds as the Administrator he may exercise such of the powers and functions of the Administrator under the Scheme as are capable of application to the Administration of the Victoria No.1 Branch, other than paragraphs 2,3,4,9,11,12,13,14,15,17,18,19 and 21;
29A.3 Upon the issuing by the Australian Electoral Commission to the Administrator a copy of the declaration of the result of the election for the offices in the Victoria No.1 Branch, James Simmonds shall cease to be the Administrator;
29A.4 The persons declared elected in those elections shall forthwith take up the offices to which they were elected, and to avoid doubt shall do so notwithstanding the provisions of Rule 29A of the Rules.”
6. The Assistant Secretary-Treasurer of the New South Wales Branch, the Assistant Secretary-Treasurer of the Victorian No. 1 Branch and the Branch Secretary of the Victorian No. 3 Branch:
a. Keep the records of HSU East Branch referred to in section 252(1)(a) of the Fair Work (Registered Orgnaisations) Act 2009 (Cth); and
b. On receipt of a request made by the National Secretary of the Health Services Union, provide those records to the Health Services Union.
7. Leave is granted pursuant to r 2.32(4) of the Federal Court Rules 2011 to all persons to inspect
a. the following affidavits:
(i) the affidavit of Angela Lee McDonald affirmed on 21 November 2012;
(ii) the affidavit of Peter James Punch sworn 6 November 2012;
(iii) the affidavit of Peter James Punch sworn 14 November 2012;
(iv) the affidavit of Peter James Punch sworn 20 November 2012;
(v) the affidavit of Stephen Freeman sworn 21 November 2012;
(vi) the affidavit of Selwyn Leslie Black sworn and filed 27 November 2012 other than Annexures SLB5 and SLB6;
(vii) the affidavit of Selwyn Leslie Black sworn 27 November 2012 and file 28 November 2012; and
b. the letter from the Fair Work Australia General Manager, Ms Bernadette O’Neill to the Court dated 20 November 2012.
8. The parties have liberty to apply on 48 hours’ notice in writing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. The Orders of the Court made 21 June 2012 (as varied) be amended to insert the following Order numbered 12:
“An order that:
(i) upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the Victoria No. 3 Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be the Administrator and James Simmonds cease to be the Assistant Administrator of that Branch;
(ii) upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the New South Wales Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be Administrator, Brian Daley and James Simmonds cease to be Assistant Administrators; and
(iii) James Simmonds be appointed as Administrator of the Victoria No.1 Branch under the scheme attached as Appendix A.”
2. The time for compliance with paragraph 28 of Appendix A to the Orders made on 21 June 2012 (as varied) is extended to the date upon which the Australian Electoral Commission issues to the Administrator of the Victoria No 1 Branch a copy of the declaration of the results of the elections for the offices in that Branch.
3. Paragraph 25 in Appendix A to the Orders of the Court made 21 June 2012 (as varied) be amended by the addition of the following at the conclusion thereof:
“To avoid doubt:
(iv) the elections for the New South Wales and Victoria No.3 Branch contemplated by clause 24 are to be conducted in accordance with the schedule prescribed by the Returning Officer for those elections as determined by him on or about 5 September 2012 pursuant to Section 193 of the Act and notwithstanding the provisions of Rule 29A of the Rules;
(v) the elections in the Victoria No.1 Branch contemplated by clause 24 will be conducted in accordance with the schedule prescribed by the Returning Officer for those elections as determined by him on or about 5 September 2012 pursuant to Section 193 of the Act, as such schedule was varied in accordance with the Orders made by Justice Tracey in Matter VID 829/2012 on 16 November 2012 (as varied), notwithstanding the provisions of Rule 29A of the Rules.”
4. Paragraph 29 in Appendix A to the Orders of the Court made 21 June 2012 (as varied) be amended by deleting the contents thereof and inserting in lieu thereof the following:
“29.1 Upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the Victoria No. 3 Branch of the Health Services Union, the Honourable Michael Francis Moore cease to be the Administrator and James Simmonds cease to be the Assistant Administrator of that Branch
29.2 Upon the issuing by the Australian Electoral Commission to the Administrator of a copy of the declaration of the result of the election for the offices in the New South Wales Branch:
(k) The Honourable Michael Francis Moore shall cease to be the Administrator;
(l) the persons declared elected in those elections shall forthwith take up the offices to which they are elected, and to avoid doubt shall do so notwithstanding the provisions of Rule 29A of the Rules;
(m) Brian Daley shall cease to be the Assistant Administrator (NSW);
(n) James Simmonds shall cease to be the Assistant Administrator (Victoria); and
(o) Paragraph 27A shall cease to have effect.”
5. In Appendix A to the Orders of the Court made 21 June 2012 (as varied) insert after Paragraph 29 the following new Paragraph 29A as follows:
“29A Administrator of Victoria No.1 Branch
29A.1 Upon the Honourable Michael Francis Moore ceasing to be the Administrator pursuant to Paragraph 29.2 (a), James Simmonds shall be appointed as Administrator of the Victoria No.1 Branch;
29A.2 From the date of appointment of James Simmonds as the Administrator he may exercise such of the powers and functions of the Administrator under the Scheme as are capable of application to the Administration of the Victoria No.1 Branch, other than paragraphs 2,3,4,9,11,12,13,14,15,17,18,19 and 21;
29A.3 Upon the issuing by the Australian Electoral Commission to the Administrator a copy of the declaration of the result of the election for the offices in the Victoria No.1 Branch, James Simmonds shall cease to be the Administrator;
29A.4 The persons declared elected in those elections shall forthwith take up the offices to which they were elected, and to avoid doubt shall do so notwithstanding the provisions of Rule 29A of the Rules.”
6. The Assistant Secretary-Treasurer of the New South Wales Branch, the Assistant Secretary-Treasurer of the Victorian No. 1 Branch and the Branch Secretary of the Victorian No. 3 Branch:
a. Keep the records of HSU East Branch referred to in section 252(1)(a) of the Fair Work (Registered Orgnaisations) Act 2009 (Cth); and
b. On receipt of a request made by the National Secretary of the Health Services Union, provide those records to the Health Services Union.
7. Leave is granted pursuant to r 2.32(4) of the Federal Court Rules 2011 to all persons to inspect
a. the following affidavits:
(i) the affidavit of Angela Lee McDonald affirmed on 21 November 2012;
(ii) the affidavit of Peter James Punch sworn 6 November 2012;
(iii) the affidavit of Peter James Punch sworn 14 November 2012;
(iv) the affidavit of Peter James Punch sworn 20 November 2012;
(v) the affidavit of Stephen Freeman sworn 21 November 2012;
(vi) the affidavit of Selwyn Leslie Black sworn and filed 27 November 2012 other than Annexures SLB5 and SLB6;
(vii) the affidavit of Selwyn Leslie Black sworn 27 November 2012 and file 28 November 2012; and
b. the letter from the Fair Work Australia General Manager, Ms Bernadette O’Neill to the Court dated 20 November 2012.
8. The parties have liberty to apply on 48 hours’ notice in writing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
One of the redrafting suggestions made on 22 November 2012 was to separate out the two orders – one order bringing to an end the appointment of the Administrator and the Assistant Administrators; the other order addressing the separate circumstances in respect to the Victoria No 1 Branch. Those orders as redrafted should now be made.Extension of time for completion of the administration Second, an order is sought extending the time for compliance with paragraph 28 of the Schemes approved on 21 June 2012. As at that date paragraph 28 provided as follows:The Administrator shall use his best endeavours to ensure the completion of the administration within 120 days of the date of the Order, or such further time as the Court may allow.On 14 September 2012 that 120 day period was extended to 180 days: Brown v Health Services Union (No 2) [2012] FCA 1014 at [5]-[6]. The order sought on 22 November 2012 was an order extending the time for a further period of 13 days. As drafted, that order had the prospect of itself setting a further time which may also have needed an extension. Given that:·the administration of the State Union, the New South Wales Branch and the Victoria No 3 Branch would be complete in late November 2012; and ·the administration of the Victoria No 1 Branch was also nearing completion, with the results of the elections in that Branch expected to be declared shortly thereafter; it was considered appropriate to not extend time for a specified period of days. The preferable course was to make an order varying paragraph 28 such that the administration of the Victoria No 1 Branch and, thus, the administration in its totality, would cease upon the declarations of the results of the elections for that Branch. The form of order has been redrafted to combat this concern and, as redrafted, should now be made. An order pursuant to s 323? Third, it was previously suggested that consideration should be given to whether any order or direction pursuant to s 323(6) of the Registered Organisations Act should be made to make clear that the timetables for the elections that are presently being undertaken in respect of the New South Wales Branch and the Victoria No 1 and No 3 Branches are effective despite the lack of provision for them in the rules of the respective Branches. The Administrator has suggested that an order should be made “to avoid doubt”. Such an order should be made. REPORTING REQUIREMENTS AND THE APPOINTMENT OF AN AUDITOR Three further issues emerged during the course of the hearing on 22 November 2012, namely:·whether the former HSU East Branch, the Federal Branch, may have contravened provisions of the Registered Organisations Act and whether the Federal Union itself may assume liability for those contraventions; ·whether an auditor had been appointed in respect of the three demerged entities; and ·the steps being taken by the auditor to review the financial affairs of each of the three demerged entities. Some hesitation was expressed as to whether orders should be made bringing the administration to an end in respect to any or all of the three demerged entities prior to these issues being resolved. No conclusion other than that the Administrator has fully discharged the responsibilities entrusted to him under the Schemes is open. But some reservation was expressed on 22 November 2012 as to whether it was desirable to return to the control of the members an entity lacking the financial supervision of an auditor. Non-compliance with civil penalty provisions