Cook, Robert Arthur v Crawford, G

JU~GMENf No.

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

-77

IN THE FEDERAL COURT OF AUSTRALIA )

)

INDUSTRIAL DIVISION	) N0.19 of 1979
1

IN THE MATTER of the Conciliation	,
and Arbitration Act, 1904
!
AND IN THE MATTER of an application ;
under Section 141 of the said Act BETWEEN:
_	G	-

ROBERI' A

COOK

Clalmant

-	AND:
G. CRAWFORD, G.L. SMITH, S. MUTTON, , R. FAIRWEATHER, R. HEVEY, T. BOURKE , and R. MASTERSON

Respondents

14 September 1979

EVATT J.

REASONS FOR JUDGMENT

By rule to show cause granted on 31 May 1979 the

claimant Robert Arthur Cook seeks orders pursuant to s.141 organization), an organization registered under the Act by treating as null and void resolutions of the Federal Executive of the organization adopted on 1 and 2 May 1979 purporting

of the Conciliation and Arbitration Act 1904 (the Act) that

the respondents hereln perform and observe the rules of the

to expel from membership of the organization five named members

of the Sydney branch of the organization and dismissing the

said five members from then respective offices in that branch

and further that the respondents recognise the said five

members as the holders of their respective offices on grounds

that rr.l3(6) and 35(10)(d) of the rules of the organization

are invalid and on the further ground that each of the five

members were denied natural justice.

The claimant is the Chairman of the Sydney branch

of the organization and was not one of the five members so

expelled or dismissed from office. The seven named respondents

are members of the organization constituting its Federal

Executive.

Rule 13(6) reads:

"13. Offences and Charqes

6. Any member shall have the right to lay

a charge against any member or officer direct to the General Secretary and/or

President. Such charge to be dealt with

by the Federal Executive under the provisions

of Rule 35.

Rule 35(10)(d) as certified pursuant to s.139(4) by the

Registrar on 25 October 1978 reads:

"35.-Federal Executive

(10)(d) for the purposes of Sub-Rules (a)

and (b) hereof the Federal Executive

shall have power to

(i)pending the investigation of the charges or complaints to suspend an

any officer Yfxom .perz6.0?m~~~~~~l

@-E

any of his duties for a period not

exceeding three months;

(ii)to impose a fine not exceeding $200 :

(iii)

found guilty of misappropriation

of the funds of the Union or gross

misbehaviour or gross neglect of

duty or who has ceased according

to dlsmiss from office any officer the office:

(iv) to expel any member.

The sald rule to show cause was made returnable Certain directions laying down the program for the filing of points of claim and points of defence etc. were given resulting in the claimant having to file affidavits in reply on or before 31 July 1979. Accordingly a date early in August for the hearing of the matter could have been for directions hearing on 11 June 1979 when the claimant	and the first named respondent Mr G. Crawford, General
granted but at the request of Counsel for the clalmant the
3 September 1979 was set for the hearing of the matter.
Liberty was granted to all parties to apply to the Court for further orders or directions on 48 hours notice.
At this directions hearing Counsel for the claimant indicated that there was a possibility of an application for interlocutory relief being made but at
that time such relief was not sought. Counsel then stated that it was considered that the most convenient course was for an assurance from the respondents that no action would be taken pursuant to the purported decisions to dismiss

or expel the said five members pending the resolution of

the matter by the Court.

Counsel for Mr Crawford then

indicated that no such assurance was or would be given.

On 27 June 1979 in matter V.23 of 1979 Mr Crawford

was granted an order nisl pursuant to s.141 of the Act calling

upon certain respondents including Mr Cook, the clalmant in

the present proceedings and nine other named respondents

(being the holders of various offices in the Sydney branch

of the organization other than the five members referred to

above) to show cause why certain orders should not be made

givlng directions to those respondents to perform and observe

the rules of the organization in certain respects. The return

date shown in such rule was 16 July 1979 which date was stated

to be the date on which directions would be given by the Court

and when a date would be set for the hearing of the matter.

On that matter coming on for directions on 16 July 1979

Counsel for Mr Cook the claimant herein then pointed out to the Court that two applications in the present matter dated

4 July 1979 had been made returnable for 24 July 1979.	These	I
two applications were then not listed before the Court.

The first was an application by Ulick Colin Bignell

and Harold Shooter for an order that they be added as claimants

present

in the/proceedings.

Both were two of the five officers

purportedly expelled from membership of the organization

and dismissed from office in the Sydney branch of the

organization. Mr Bignell was at the time of the purported

expulsion and dismissal the Secretary whilst Mr Shooter

was then the Assistant Secretary of that branch. The

second applicatlon dated 4 July 1979 was an applicatlon by

the claimants seeking interim orders pursuant to s.141(2) that,

pending final hearing of the rule to show cause herein, the

respondents perform and observe the rules of the organization

by treating as null and void the resolutions of the Federal

Executive of 1 and 2 May 1979 purporting to expel the said

five members from membership of the organization and dismissing

them from their respective offices in the Sydney branch and

that the respondents take no step or action pursuant to the

said resolutions and for a further interim order that pending

the hearing of the proceedings the respondents recognise

the said flve members as being the holders of their respective

offlces in the Sydney branch.

On 16 July 1979 I was unaware that such applications

had in fact been filed and that a return date, 24 July 1979,

had been granted for the hearing of the applications. July 24th,

1979 was not a convenient date for me to hear such applications

owing to court commitments interstate and Counsel were so

informed. Such applications did not necessarily have to be

listed before the Court as then constituted.

Subsequently, an

approach was made to my assoclate to have the said two

applications heard by me on 10 August 1979, which date was

apparently suitable to all parties.

On 10 August 1979 Mr McAlary Q.C. wlth Mr Shaw

appeared for Messrs Bignell and Shooter and for the clalmant

in matter No.19 of 1979 whilst Mr Laurie Q.C. and Mr Gray

appeared for the respondents other than the last named

, .

respondent M r R. Masterson.

Mr Kenzie of Counsel appeared

.	. /6 . .

Eior:,thatcrespondent? whperse~h6oSeC~etarpsp6r5het~e~vka~tle

b!canQhco5ttbe ofga'nrzS$~ons'cle

branch of the organizatlari.

The respondents consented to the adding of Mr Bignall

and Mr Shooter as claimants in matter No.19 of 1979. Mr McAlary

sought leave to add the organization as a respondent to the

proceedings as certain certified rules of the organization

were being challenged in the proceedings.

In vlew of s.l41(8A)

it was ordered that the organlzation be added as a respondent.

Mr Laurie then appeared for the organization.

Mr McAlary submitted that in view of the decision

in Roots -v- Mutton, 32 A.L.R.

6315 it was clear from the

affidavit evidence before the Court that the claimants had

a prlma facie case and were very likely to succeed on the

contention that the rule amendment to the present r.35 and

in particular r.35(10)(d) adopted by the Federal Council at

~ t s

annual meeting in August 1978 and certified, pursuant

to s.139(4), before 1 May 1979 had not been validly adopted

by the Council in accordance with the certified rules of the

organization and that such evidence showed the balance of

convenience to be in favour of the claimants and accordingly

the claimants were entitled to the interim orders sought.

The rule-amendlng rule of the organlzation vhich

was considered in Roots -v- Mutton (supra.) was the then

r.28. This read:

"(1)The rules of the union shall not be amended

except on a resolution carrled by a malority

of the council.

(2) Any member desiring to submit to the

council any proposal to amend the rules

must first submit such proposal to the

meeting of hls branch specially convened

for the purpose.

(3) If such proposal be approved by a

majority of the members present at such

meeting it shall be forwarded to the head

office for submission to the council.

(4)	The general secretary shall prepare an

agenda of any such proposals and fonvard copies of same to all branches, not less than slx(6) weeks prior to the council

meetings to which such proposals are

submitted.

(5) The council may at any time make or

amend any rules, so that the rules of the

union may comply with the requirements of

the Commonwealth Conciliation and Arbitration

Act, or any similar State Act."

In the present proceedings it was the claimants'

contention that a proposed

amendment to k h e a e n W e d z d e s

dealing with the subject matter set out in the present

certified r.35 had been fonvarded by the West Australian

branch of the organization pursuant to r.28(3) and that

such proposal had thereafter been circulated by the General

Secretary to all branches pursuant to r.28(4) but that the

amendment to the present r.35 as adopted by the 1978 Federal

Council was not in the same form as that proposed by the

West Australian branch.

In particular, the West Australian

proposed amendment to that rule did not include any proposal

for the expulsion of a member from the organization at all

and that prior to the amendment to r.35 in August 1978, the

rules made no provision for such expulsion or for the removal

from offlce of any officer.

Mr Laurie then indicated to the Court that r.28

set out above had in fact been amended by the September 1977 vas certified, pursuant to s.139(4), on 1 February 1978.

Such amendment made provision for the re-numbering of r.28

to r.27 and for the deleting of sub-rule (5) thereof and

substituting a new sub-r.(5) which reads:

"5. The Council may at any time make or amend	I
any rules.

Mr Laurie indicated that r.27(5) was in this form	I-
i
I.

as at August 1978 when the Council adopted the amendment to	l, i
the present r.35 and in particular r.35(10)(d) and consequently	!
the decision in Roots -v- Mutton was not applicable in these
proceedings although certain dicta thereln was relied upon
in support of the argument that the amendment to the present
r.35 had been validly adopted by the 1978 Council pursuant to

r.27(5).

This being so, it was submitted that the respondents

had a complete answer to the claimants' arguments in this regard.

Mr Laurie further contended that the evidence

showed that the balance of convenience was such that

interim orders should not be made.

He pointed out that

the five members who had been expelled had been charged

that they, whilst officers of the Sydney branch of the

organizatlon, had (Inter alia) for some period of tlme

(a) encouraged members of the organization to resign from

such organizatlon and either to remain members of the New

South Wales State Union or join that unlon if not then

members thereof xvhilst (b) any new member joining the

State Union who was not a member of the organization was

../g..

discouraged from joining that organization. These charges

it was submitted were most serious and such conduct was

such as to undermine the very foundations of the Federal

organizations.

Further, it was submitted, a tribunal acting

honestly could readily flnd that such conduct amounted to

gross misbehaviour and/or gross neglect of duty within the

meanlng of those phrases in r.35(d)(lO)(iii)

and in s.l33(l)(f)

of the Act.

Mr Laurie also submitted that the expulsions

and dismissals of the five members did not affect then

position in the State Union and they each still retained

their respective offices withln that Union. On the other

hand, the Federal Executive of the organization had under

the rules moved into the Sydney branch of the organization

so that the affairs of that branch were in fact being carried

on.	Further, Mr Laurie submitted that in considering the

balance of convenience the Court should take into consideration that orlglnally the proceedings in No.19 of 1979 were commenced by a person other than one of the flve members so expelled

and dismissed from office; that, in the circumstances, there

had been laches or delay in the bringlng of the application

of interim orders sufflclent, bearing in mind that the date

set for the hearing of the matter was then only some three

weeks off, to deny to the applicants any right to the interim

orders as asked.

Mr Kenzie adopted Mr Laurie's arguments.

Mr McAlary in reply indicated that he had assumed

that it was common ground that his contention that particular

/10. .

amendments adopted at the 1978 Federal Council Meeting had

not been forwarded from any particular branch of the

organization also applied to any rule amendments adopted

at the 1977 Council Meeting.

This was clearly not common

ground.

Whether in fact such was the case, is a matter

which no doubt will be investigated by the claimants.

No argument was placed before the Court by the claimnts on this application as to the strength of their claim that they (or any of them) had been denied natural

justice or that the conduct of the five members alleged

in the various charges could not amount to "gross misbehaviour"

or "gross neglect of duty" referred to in r.35(10)(d)(iii).

At the conclusion of argument on 13 August 1979 the Court then stated that in its view the application for interim orders under s.141(2) set out in the application

dated 4 July 1979 and flled herein should be refused and that

the Court would publish its reasons later.	This the Court
now does.

The principles applicable in applications such

as that under consideration have been discussed by Bowen C.J.

in World Series Cricket Pty. Limited -v- Parish (1977-79)

16 A.L.R. 181. At p.186 after reference to Beecham Group

Limited -v- Bristol Laboratories Pty. Limlted (1968) 118 C.L.R.

618 it was stated :-

"The High Court was seized of the matter under

the Patents Act 1952 and was not exercising

any inherent equitable jurisdiction. Never-

theless, it lnvoked principles developed in

equity to determine how it should exercise

its statutory jurisdiction, though in some

ways departing from those principles, where

the special nature of the patent jurisdiction made it appropriate to do so. The High Court expressed the view that in all cases, including

patent cases, a court, when contemplating granting

or refusing interlocutory relief, must direct it-

self to both the prlma facle strength of the

plaintiff's claim and the balance of convenience. A plaintiff is required to make out a prima facie case, "in the sense that if the evidence remains

as it is, there is a probability that at the

trial of the action, the plaintiff will be held entitled to relief" (ibid at 622 and 470). The strength of the case which the plaintiff must

make out will depend upon the nature of the right

bhich he is seeking to assert, and the consequences

which will flow from the making of the interlocutory

order. However, where the facts are seriously in

dispute, the court will not undertake a preliminary trial of the actlon in order to forecast a probable result, but rather,if the plaintiff has a falr

chance of success (and xvhat will be required will

vary according to the nature of the case), the

court will proceed to look to the balance of	,I
convenience.

In the lnstant case, if the evidence as alleged in the affidavits filed in the claimants' case remains as

it is thereln set out there is probability that at the

trial of the action, the applicants will be held entltled

to relief.

But it is clear that from the points of defence

as to the amendment to the rule amending rule made in

flled and from the matters mentioned by Mr Laurie, particularly that as at 13 August 1979 such evidence was unlikely to remaln as it was alleged in such affidavits.

Further I was, as at 13 August 1979, not satisfied

that the claimants had shown that on the balance of convenience

they were entitled to interim orders as asked.

In this

regard the Court in the exercise of its discretion took

lnto consideration the matters and circumstances referredto

~ a ~ : ~ e ~

hereln including the delay in the making of the

applicatlon for such orders and the fact that the date that

had been granted for the hearing of the substantive matter

was then only some 3 weeks off.

Accordingly the applicatlon for interim orders

was refused.

I ce r t i fy tha t t h i s and the ~ / E V C ~

preceding pages are a t rue copy of the

Reasons for JudgrnenthereinofhisHonour

Jr.

Jus t ice cvfir

Datedt /k&-

147 7

[1979] FCA 91

14 Sep 1979