Cooney, J.A. v Gibbs, J.

[1987] FCA 49

Q 1 'THE FEEEEAL CIYJRT OF AUCTRALIA	I
)
V I I X O R I A D I S T R I C T REGISTRY	l PIG. 'J 1 O f 1987
IMDUC'THIAL DIVISIOPI	l

3

?TEXMIFZR LrJUISE	GIBBS
G. OHS.

Respondents

KEEL'I J.

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I have decided to make interim orders. Mr. John. who

appeared for the respondents Kathleen Matthews and Kathleen Gllbert, did not oppose the making of the orders sought.

Miss M. Hickey, of counsel. who appeared for the respondents

'I'hereae Jcnklns and J l l l Kenned;r and Dr. Buchanan Q.C., who appeared with Mr. Struqnell of counsel for all of the remalnlng respondents, did not contend that the court lacked

power to make either of the tslo orders sought but submitted

.. that the court, in it3 discretion. should refuse to make

either of those orders.

The firrt lntsrlm order that -.as souqht is:

"An order directing that each of the second

to Seventeenth Respondents perform and

ubserve the Rules of the Royal Australian

Nurslng Federation oy reframing from

proceeding to hear and determine the matters

the sub~ect of the notice dated 22nd

December 1966 summmlng Judith Adnlla Cooney

t o show cause why she should not be removed

from the office of Federal Secretary."

Rule 20 of the Royal Australian Nursing Federation's

certified rules includes the following provision:-

"2Q. Removal from office of Federal

Counclllors and Officers

(a1

The Federal Council may remove from

office any officer or member of the

Federal Council at a meeting of the

Federal Council to which the person

d. ?

concerned has beer. summoned In vrltlng

-1gned by ths Federal Secretary gr

Federal Presldent t . 2 show cause wk; he

or zhe should not be so removed. Pro-Iid?d that no m c h person shall be removed from office Unless he or she

has been gu1lty found of

misappropr1atlan of the funds of the Assoclatron. a suSstantla1 breach of the rules ~f the A3soclation. or gross mlsbehaviour or gross neglect of duty.

or has ceased. according to these

rules. to be eliqlble	to	hold	the
offlce.

The applicant contended that the respondent Gibbs, In

exerclsing the power as Federal Presldent of the Federation

to call upon the Federal Secretary to show cause why she

should not be removed from offlce, wa3 under a duty to

exercise that power In good faith and not for any ulterlor or

extraneous purpose - see v Jess (1984) 3 FCR 263 at

286-7 per Gray J. and see Tanner v Maynes (1985) 7 FCR 432 at

441. 455. Counsel f o r the respondents did not dispute that

the Federal President was under a duty to exercise that power

in accordance wlth that principle.

Mr. Strong and Mr. Mueller of counsel, who appeared

for the applicant. contended that the Federal President. in

exerclsing the power under rule 20 to summon the applicant to

show cause at a meetlng of the Federal Council to be held on

30 January 1987, failed to exercise the power In good faith.

They supported that submission by material contained in three

affidavits by the applicant. together with exhibits. In

4.

They submltted that rule 20 both empowered and obliged

the re3pondent GibL3. as Federal Presldent. to consider

any charge3 laid by mernbFr3 before de.:iding whether to call

upon the applicant to show cause 'Jhy she should net be

removed from office. The11 did not submit that there was a

duty upon the Fedsral President o in?estlgate very

complamt made by any member agalnst any officer but

- submitted that the Federal Presldent should not act merelzr as

a "rubber stamp" in respect of charges laid by a member:

reference vas made t o the pGsz.1billt:r of charges b e m g

brought vexatlously by a member, The appllcant submitted

that, ~f the Federal President had substantial reason to

believe that a charge or a part of a charge was groundless or

J	was maliciously false. then the Federal President should not
summon the person concerned to show cause under rule 20 in
respect of that charge or that part of a charge.

In their submisslon the applicant's material showed

that some at least of the complaints were, to the knowledge

of the Federal President, groundless. h support Of that.

submlssion they referred In considerable detail to many

matters dealt with in the three affidavits.

Cmnsel for tr.e respondents jubmltted that he

material did. not sh0-J an:? Lack of bona fide3 by the Federal

Pre~ld?nt. The7 furtrer 3Umltted that under rule 2C the

Federal Presldent's duty was no more than a duty to be

satlsfied that. puttinq aslde any personal knowledge that she

had of the matters. the charge lald by the member could

constitute grounds f o r r?mo,ral under rule 20: that upon being

so satisfied the Fsderal Presldent was under a duty to call

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upon the officer concerned	to	shov cause before Federal
Councll .

As these are interlocutory proceedings It is obviously

undesirable that I ahould form any n e w at this stage upon

the matters in issue. Although the correct construction	of
rule 20 is a matter of some difficu1t:r requlring fuller

argument than has been posslble today. in my new. on a

conslderation of all of the materlal. ths appllcant has shown

3 that there is a serious question to be tried within the

meanlng of the authorities referred to earlier.

As to the "balance of convenience" it was accepted by

the respondents' counsel that the detriment likely to be

caused to the respondents, if the interim orders sought were

made. was not substantial: It appears that it would consist

largely of what was called "bother and expense" In connexion

with the meeting of Federal Council and of possible problems

. arising from the return of Mrs. Cooney to the performance of

3

her dutie-. as Federal Secretary. Although the case made bp

the appllcant on this lque3ti~n of "balance of sonvenlence"

was crlticisrd by Dr. Buchanan 9.C.. I am satisfied that the

balance of convenience i s p l a l n l g in favour of the making of

the first order sought. The detriment to Mrs. Cooney if

interim orders are not made Includes a real possibility that

she will be removed by the Federal Councll from the offlce of

; ;>	Federal Secretary at a time when she has been nominated as a
candidate f o r re-election t o that office. In saying that I
z,	am not ~peculating in an;; vay as to what the Federal Council
is in fact likely to d o , but simply having regard to the fact
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that the charges have been made and Mrs. Cooney has been

. summoned to show cause.

The second interim order sought was vider than the

order appearmg in paragraph ( b l of the rule to show cause

:

and was as follows:

"An order directing that each of the first

to nineteenth Respondents refraln from publishing or distributing or causing to be

published OF distributed to any other

member, other than the first to nineteenth

Respondents, information concernlng the

matters the sub~ect of the said Notice dated

22nd December 1986. "

That nonce was the notice summoning the applicant to show

cause.

7

..

fir. Euchanan Q . C . accepted that there was power to

make an Interim order in that form but submitted that no case

had been made out for the maklng of any such order:

alternatively, he submitted that such an order would be too

wide and would inhibit the respondents from the proper

preparation of their cases.

On a consideration of all the material, lncluding the

-3	resolution carrled at the meeting of the Federal Councll on
22 June 1986 (whlch apparently was later resclnded) that each
of the accusations made agalnst the applicant should be

'.published in the Federation's Journal. I have come to the

conclusion that an order should be made but will hear further

submlssions as to the form of that order.

ADDENDUM ( 3 February 1987)

In the brief reasons for judgment delivered orally on

the day of the hearing, I referred to the possibility of

fuller argument being heard as to the correct construction of

rule 20. One question, whlch has been the subject of brief

submissions and which may requlre further conslderation, is

the nature of the duty placed upon the Federal President

under that rule. It may be that, as Dr. Buchanan submitted,

. .-	::,the	rule implies that any member may	lay a charge against an
-.	,	,

. a .

_ I

I '	-
c ,

\., .

3.

officer o r a memk+r of th; F5deral Councll; ~f It does then

that ~on~tructlon may well 3trengthen his submljslon that

Mi39 Gibbs vas under a duty to summon the applicant to show

cause before Federal Council. However. rule 20 does ngt

expressly 3ay any member may lay such a charge; it may be that, although any member can brmg matters of complaint to

the attention of the Feaeral fre3ldent. the rule envisages

that the Federal Presldent 7111 consider any such matters and

3 decide whether any and which 32f thme complaints are

surflcient to warrant her calling upon the oiflcer concerned

to show cause why she should not be removed from office.

this connevion It 13 not presently known whether

ths draftsman of rule 20 was aware that some organlzatlons of

employee3 recpzterecl under the Conclliation and Arbitration

h

Act (the Act) have certified rules whlch expressly provide

that any member may lay a charge agalnst any other member;

rules sometimes provide that. where such a charge by a member

has been laid. the appropriate officer of the organization

(which would be the Federal Presldent in the present case)

"may if he thinks fit, and shall if directed by the Federal

Council ~ummon . . . ' I . As mentioned during the hearlng, rules

sometimes provide that a member may be subject to

disciplinary actlon for laying	a charge which is friVOlOU3 or
vexatious.

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