Cook, R.A. v Crawford, V.G

[1979] FCA 120

I N THE FEDERAL COURT O F AUSTRhLIA -)

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INDUSTRIAL D I V I S I O N

I N THE ImTTER of the Conciliation

and Arbitration A c t , 1904

AND I N THE MATTER of	an A p p l l c a t i o n
11nder Sect ion 141 of	the sald A c t :

BETWEEN: ROBERT ARTHUR COOK, ULICK COLIM

BIGNELL, HAROLD SHOOTER, ROYCE LAWRENCE CUNMINS, K. TYLER and G. WATERS

C l a i m a n t s

AND: G .CRAVJFORD , G. L . SlrIITH , R . FAIRWEAT53

R . I-IEVEY, T . BOURIZE, R. MASTERSON'

and S. MUTTON and PLU>lBERS AND

GASFITTERS EMPLOYEES UNION OF

AUSTRALIA

R e s p o n d e n t s

AND I N THE MATTER of an A p p l i c a t i o n

under Sectlon 141 of the said A c t

BE'L'KZEX : GEORGE ROBERT CRAWFORD

Claimant

AND: R.A. COOK J.S. ARDAY, B R I M J.

PALMER, C.L.H. Im.STWELL, J. WORRALL,

P.J. MOODY, N.W. COh--OLLY, D. EICI~E-L'

BRUCE J. PALMER and B -0' REILLY

R e s p o n d e n t s

(V. N o . 2 3 of 1 9 7 9 )

AND I N THE MATTER of an A p p l l c a t i o n

under Sec t ion 1 7 1 C of the A c t

BETWEEN:	PLUMBERS AND GASFITTERS EMPLOYEES'
UNION O F AUSTRALIA, G . CRALiFORI),
G.L. SMITH, R . FAIRWEATHER, R . HEVEX '
T . BOURKE and S. I.IUTTON

A p p l i c a n t s

AND: ROBERT ARTHUR COOIC

R e s p o n d e n t

D a t e : 7 bTovember 1979 P H T L L I P EVATT J.

REASQiT:: - - FCF. - L;LIDGMENT -

I propose to deliver an oral judgment in the

present interim appllcation. I would have preferred more time to compose complete reasons for judgn~nt. Perhaps the lack of eloquence of some of the phraseology will be apparent but I have

thought it proper to give judgment as soon as possible and to

continue the hearing of the substantive matters in the hope that

evidence and submissions will be finalised before the end of the

four week perlod that has now been set aside therefor.

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Presently before the Court are three matters, namely No.19 of 1979, V.23 and V.24 of 1979. Each matter concerns the	i
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Plumbers and Gasfitters Employees' Union of Australia (the organ-	! 6
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ization), an organization registered under the Conciliatio~l and L -

Arbitration Act 1904 and in particular the Sydney Branch of the P

organization and certain officials of that branch. Pursuant to

an order of the Court made on 4 September last, the three matters	1
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are being heard together. All matters have been listed before

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the Court on previous occasions for directions and for the hearing 1.

of certain other interlocutory applications.	The actual hearing	I
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of the substantive claims commenced on 4 September 1979 and	I
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thereafter on 5,6,7,12,13 and 14 September on which latter date 1

all matters were stood over part-heard to 22 October.	1
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The Court had then indicated that the week commencing 1

22 October and three weeks commencing 5 November had been allocated	1.
for the hearing of the three matters.
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On 10 and 13 August last the Court heard an application'

by Messrs Bignell and Shooter, two of the then claimants in matter

No.19 of 1979, seeking interlocutory orders pursuant to s.141(2)	/. ,
of the Act that, pending the hearing of the matters, the respondents
in matter No.19 of 1979 perform and observe the rules of the	1
organization by treating as null and void the resolution of the
Federal Executive of the organization dated 1 and 2 May 1979
purporting to expel five officials of the Sydney Branch from the
organization and dismissing them from their respective offices in	I
the Branch and that the respondents take no step or action pursuant	l ,
to the said resolution; and for a further interlm order that,	!.
pending the hearing of the proceedings, the respondents recognise	1.
the said flve members as being the holders of then respective	r
offices in the Sydney Branch of the organ~zation.

The Court, on 13 August last, refused the sald	1
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appllcation for such interim orders indicating it would publish 1

its reasons at a later date.	Such reasons were published on . .	- . ---- -	.	.	3	/	1 -
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14 September 1979. The history of the matters before the Court

and of certain facts and surrounding circumstances are set out

in such reasons for judgment.	l
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There is presently a further appllcation before the

Court dated 11 October 1979 wherein the claimant Mr Bignell in

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matter No.19 of 1979 seeks similar lnterlm orders pursuant to s.l41(2j	1
as those earlier sought on 10 and 13 August last. Such further
application was made returnable before the Court on 22 October.	i

Prior to 22 October those representing the claimants 1

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i,n No.19 of 1979 requested that the matters not proceed on

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22 October or on any date during that week in order to meet the	t
convenience of Counsel representing the claimants. The respondents i	!
in matter No.19 of 1979 agreed that the matters should not proceed
durlng that week and, consequently, the hearing of all matters was	I
listed for 5 November together with the second application for	i
such interim orders.

On 5 and 6 November submissions were made by Counsel for and against the granting of such lnterlm orders. The facts L

and surrounding circumstances set out in the reasons for judgment

given on 14 September last in the prior application for interlm

orders are relevant to the present application, but such are not

set out herein. I

Since the hearing of the first application for I

interim orders the remaining three oficlals purportedly dlsmlssed

from their respective offices on 1 and 2 May 1979 were added as

claimants in matter No.19 of 1979.

An affidavit sworn by the claimant Mr Bignell on

11 October 1979 was filed in support of the present application. General Secretary of the organization, sworn 2 November last was filed. Mr Crawford was called for cross-examination on his affidavit.

Si~lce the date of the earlier appllcation it would

appear that in the journal of the organization, published in

August 1979 and circulated to the members of the organiz+tion,	l.
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there are articles setting out vzrious facts and circurr.stances	i

dealing with the matters in dispute. . ./4.. !

It is clear the Federal Executive purportedly acting

under rule 35(14) of the rules of the organizatFon have employed

temporary organisers to organize in the Sydney branch area. An

article in the journal, under the name of the General Secretary, five officials of the said branch, and refers to the question of the collection of members' contributions and suggests that the members of the Sydney branch continue to pay their contributions direct to the temporary organisers referred to, or by remitting amounts of contributions to a postal address in Melbourne, such address being that of the federal office of the organization. In addition, the General Secretary has caused to be forwarded to the Sydney branch members a circular setting out such circumstances and facts.

Further, there is evidence that the said temporary

organisers have been attending at job disputes wlthin the Sydney

branch area and, at least on one occasion, for such an organiser

to purport to appear on behalf of the Sydney Branch before the

Federal Industrial Commission.

Further, the federal officers have caused to be

opened in Sydney an office which has been called in the circular purposes of having made available to the accountant, the books

and on receipts issued "the office of the Sydney branch" of the

organization. Mr Crawford in his evidence stated the circumstances

of how it came about that such office was opened. It would appear

that, pursuant to rule 37, he as General Secretary together 311th a

chartered accountant attended at the registered offlce of the

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of account of the Sydney Branch for audit in accordance with that rule. When he attended at that office he spoke with Mr Cook, one of the claimants in matter No.19 of 1979 who is the chairman of

both the Sydney Brallch of the organization and of the State

registered union. l-Ie was informed by Mr Cook that the office

in Sussex Street wh~ch is shown as the registered office of the

Sydney branch of the organization, in the records of the Industrial Council to the registered state union and not to the Sydney Branch of the Federal organization. Consequently, Mr Crawford was refused access to that offlce by Mr Cook. Mr Crawford has sworn that on other subsequent occasions he has been refused such access.

Registrar was situated in a buildlng owned by the Trades and

It was because of these circumstances that an

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office was opened in Sydney by the Federal offlcers for use

by the said temporary organisers. Letterheads on stationery I

and receipts show the address of this new office as belng that

of the Sydney branch of the organization.

In addition meetings of Sydney branch members

have been convened by either the federal officers or by

the organisers appointed under rule 35(14). Mr Crawford has

sworn that such meetings have not been called on behalf of

the Sydney branch, but have been called in order that such

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,members may meet together so that they can be informed of

current circumstances and hold discussions thereon.

Further, it is clear that the members of the

Committee of Management of the Sydney branch other than the five officials purportedly dxsmissed from office can form a quorum for such Committee of Management Meetings and that

such meetings can be validly called within the provisions

of the existlng rules of the organization.

Additionally the said five dismissed officials are

in fact employed full time officials of the purported state

registered union, and are in fact suffering no financial loss.

The principles to be applied in such applications

as the present application have been referred to in my reasons

for judgment handed down on 14 September last. I am satisfied !

ln No.17 of 1979

that the claimants have shown that they have a fair chance of	l
success in their claim within the meaning of those words as

used by Bowen, C.J. in Parrish's Case (16 A.L.R. 181 at 186).

The defencesraised have indicated that there are complex

questions both of fact and law to be determined before a flnal

determination can be made in the matter.

This then ralses the question of the balance

of convenience as that term is used in cases such as Parrisa

- case.

I am of the view that the facts and cirqmstances

which have been presented to the Court since the earlier

application for interlm orders are such as not to persuade

me that my earller view in thls regard should be varied.

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Accordingly, the sa3.d application is refused.

I o n r t r f y ihrt L h i s a n d t h e +&(c)

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Ruaso:?s fi:' Z;;i.-!:?.snt hcreln or his ]?onour

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