Brown v Health Services Union (No 4)

Link copied
Case Copied 37 min read

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 2012
Judge: 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, applied
Date 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…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Brown v Health Services Union (No 4) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2012] FCA 1376
Decision Date

CaseChat Overview and Summary

The case of Brown v Health Services Union (No 4) involved the Health Services Union, with its branches in New South Wales and Victoria, and the registered organisations within it. The court was asked to decide on several legal issues concerning the administration of these unions, including the extension of time for completing the administration, the effect of intervening events on the role of the administrator, and the proper procedures for handling evidence in court proceedings. The court also addressed the principle of open justice and the accessibility of affidavits and evidence to the public.

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

The result has been that Mr Robert Mayberry of Nexia Australia has been appointed for each of the three demerged registered organisations. ACCESS TO THE AFFIDAVIT EVIDENCE Rule 2.32 of the Federal Court Rules2011 provides for those circumstances in which both a party and a non-party may inspect specified documents in a Registry of this Court. Rule 2.32 had as its counterpart Order 46 r 6 of the now-repealed Federal Court Rules. With one qualification, none of the parties opposed the granting of leave, should leave be necessary, to any non-party seeking access to the Affidavits and evidence relied upon in support of the making of the orders on 22 November 2012 and those orders to be made today. Those Affidavits were the following: ·the Affidavit of Angela Lee McDonald affirmed on 21 November 2012;·the Affidavit of Peter James Punch sworn 6 November 2012;·the Affidavit of Peter James Punch sworn 14 November 2012;·the Affidavit of Peter James Punch sworn 20 November 2012;·the Affidavit of Stephen Freeman sworn 21 November 2012; ·the Affidavit of Selwyn Leslie Black sworn and filed on 27 November 2012; and ·the Affidavit of Selwyn Leslie Black sworn 27 November 2012 and filed on 28 November 2012.The evidence also included a letter from Fair Work Australia General Manager, Ms Bernadette O’Neill to the Court, dated 20 November 2012. Each of these Affidavits and the letter were read and relied upon during the course of the present hearing. Many Affidavits in many proceedings, including the present, are simply “taken as read”. There may thereafter be limited disclosure in open court of the contents of those Affidavits. Mere snippets of evidence may be referred to in open court or in a judgment. The one qualification concerns the pleadings in the Supreme Court proceedings which have been annexed to the Affidavit of Mr Black. Access to that pleading should be left to be resolved by the Supreme Court of New South Wales. Subject to that qualification, it is nevertheless important in all litigation to bear in mind that any member of the public has an entitlement to be as fully informed as possible about the nature of the issues or the disputes being resolved. That entitlement does not extend to unfettered access to the court file: P v Australian Crime Commission [2008] FCA 1336 at [19], 250 ALR 66 at 70 per Emmett J. But where Affidavit evidence has been read in open court, access to such material should normally be allowed. In granting a non-party access to statements of agreed facts and outlines of submissions, Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609, (2002) ATPR ¶41-873 thus observed: [7]The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position. Similarly, Allsop J (as his Honour then was) in Richardson v Commissioner of Taxation [2006] FCA 1306, 64 ATR 267 observed:[3]… It is sufficient for me to say that the … approach that I am taking is based on a view which is contained in and underlies O 46, r 6; that is, that, prima facie, a document which stands as a pleading, that is a document which defines the controversy which this court in the exercise of judicial power seeks to quell, should be made public. The reason for this approach is that not only should the public hear what is said at the final hearing of a case or at the arguing of a motion, but also the public is entitled to understand the nature of the controversy which the court is charged with quelling. It is an important governmental function of the third arm of government and the public is entitled to understand its processes and what is happening.

Decision

Reasons for decision

No different approach should be adopted in the present proceedings. The proceedings have attracted some media attention. Of more immediate concern, the orders made on 21 June 2012 affected the interests of those whose offices were vacated by the orders made on that date. The proceedings also affected the interests of members of the registered organisations the subject of those orders. There is no reason why any person who is interested enough to seek access to the material which formed the factual basis upon which the Court is proceeding in making final orders should be denied that access.CONCLUSIONS The outstanding orders as initially sought on behalf of the Administrator, and as redrafted since the adjournment of the hearing from last Thursday to this morning, should now be made. Those orders, it should finally be noted, will not impact upon the proceedings which have been commenced by the Administrator, namely:·a proceeding commenced on 6 November 2012 against Mr Michael Williamson in the Industrial Court of New South Wales seeking recovery of amounts pursuant to s 270 of the Industrial Relations Act; and·a proceeding commenced on 7 November 2012 against five defendants (Mr Michael Williamson, the trustee of his family trust, Katherine Jackson, Peter Mylan and Kerrie Seymour.An application has been made to transfer the Industrial Court proceedings to the Supreme Court so that both proceedings can be heard together. Those proceedings will continue when the elected officers assume control of the State Union.THE ORDERS OF THE COURT IN NSD 621/2012 AND NSD 735/2012 ARE: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:“29.1Upon 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 Branch29.2Upon 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:“29AAdministrator of Victoria No.1 Branch29A.1Upon 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.2From 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.3Upon 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.4The 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); andb.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; andb.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.

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