Cooney v Gibbs

Case •

[1987] FCA 132

•

19 Mar 1987

No judgment structure available for this case.

KEELII J.

PIELEirUECIE

IN THE FEDERAL COURT OF AUSTRALIA

)

)

VICTORIA

D STRICT

REGISTRY

)

No. V1 of 1987

)

INDUSTRIAL. DIVISION

)

B E T W E E N :

JUDITH ADELLA

COONE'I

Applicant

A N D :

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:

Keely J.

DATE OF ORDER:

19 MARCH. 1907

WHERE MADE:

Melbourne

THE COURT ORDERS THAT:

1.

The first respondent perform

and observe the rules of

the Royal Australian Nursing Federation

by ceasing and

2.

refraining from holding herself out

as a member of the

Federal Council of the Federation.

2.

Each of the second

to seventeenth respondents perform

and observe the rules of

the Royal Australian Nursing

Federation by ceasing and refraining from treating or

recognising the first respondent as a member of the

Federal Council of the Federation.

Note:

Settlement and entry of orders is dealt

with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA

DISTRLCT

REGISTRY

I

No. V1 of 1967

DIV SION

INDUSTRIAL

)

B E T W E E N :

JUDITH ‘WELLA COONEY

Applicant

A N D :

Respondents

19 MARCH, 1987

KFELY J.

REASONS FOR JUDGMENT

On 21 January 1987 an order was made under S. 141

of

the Conciliation and Arbitration Act 1904, (the Act) calling

upon the respondents to show cause why certain orders should

not be made. including the following:-

..

-i

Y .

An Order

directing

that

the

first

Respondent

perform

and

observe

the

Rules of the

[Royal

Australian

Nursing3

Federation

by

ceaslng

and

refralnlng from holdlng herself out

as :

(1)

A member of the Federal CouncL1.

(11) Federal

President

O t

the

Federation.

An Order directing that each of the second to seventeenth Respondents

perform and observe the

Rules of the

Federatlon by

ceasing and refrainlng

from treating or recognising the

first

Respondent as:

(1)

A member of

the Federal Councll;

(11) Federal

President

the

of

Federatlon.

‘I

The matters dealt with in these reasons for judgment

are those raised

by paragraphs

(c) and ( d )

of the rule to

show cause, as

to

xhich the court had ordered that the

questions raised by them

be heard and determmed

separately

from the questlons raised by paragraphs

(a) and

i b ) .

Mr. M. Moore and Mr.

B. Mueller, both of counsel,

appeared for the applicant. The fourth. fifth, tenth and

eleventh respondents took no active part in the hearing

although they had each entered an appearance and were

informed of the date of the hearing. Dr. Buchanan. Q.C.

and

Mr. Strugnell, of counsel, appeared for all

of the other

respondents (the fifteen respondents) to oppose the making of

the orders.

3

The fifteen

respondents

accepted

a

statement

of

"agreed facts"

as follows:

'I 1 .

The Royal Australian Nurslng Federation

("the Federation") is an organization

of employees

registered

under

the

Conciliation and Arbitratlon Act 1904.

2 .

The

applicant is a

member

of

the

Federation.

3 .

The 1st to 17th respondents are members

of

the

F deration

a d

under

an

obligation to perform and observe the

rules of the Federation.

4.

The 2nd to 17th Respondents are members

of the

Federal

Council

of the

Federation.

5.

A t all material times before 9th September 1986, the 1st respondent was President of the Victorian Branch of

the Federation. a member

of the Federal

Council and Federal President

of the

Federation.

6 .

The 1st respondent has at all materlal

ti~res

since

9th September 1986

continued to hold herself out as:-

(a) a member of the Federal Councll;

(b) President of the Federation."

In addition, they had admitted in thelr "contentions

of fact" that:-

"(a) the eighteenth and nineteenth respondents are members

of the Federation: and

(b) on

9 September 1986 the first respondent resigned from

the position

of

Branch President of the Victorian

Branch of the Federation."

4.

Further, the applicant deposed "that the tenth respondent Therese Jenkins has accepted the appointment as Presldent of the Victorian Branch of the Federation". That statement was not contradicted by other evidence and the applicant was not

cross-examined.

The first respondent, Miss Gibbs, deposed in

an affidavit that she had resigned her "position as President

of

the Victorian Branch of the Federation and Chas3 since

that date held no office in the Federation save for that of

Federal President.

No successor to

that office has been

elected since the 10th day

of September 1986."

The rules of the Federation were put in evidence and

it is convenient

t o

set out at this point the following

provisions in the Federal Rules:-

"14 - Voting at Federal Councll

The Federal Council shall consist

of

the Branch

President

o e

a d

Councillor from each Branch

of the

Association who

shall be elected by

secret ballot

as provided by these

rules.

Each member

of the Council shall be

entitled to vote in deliberations

of

the Federal Council.

In the event

of any member of the

Council

being

unable

to

attend

a

Federal Council meeting ... the Branch

Council of such Branch Cthe Branch she

represents on the Federal Council] may

appoint a proxy

...

5.

(f) (1) For the purposes of voting each

Branch

shall

be

entitled

to

a

minimum of two ( 2 ) votes.

....

20 - Removal

from

office

of

Federal

councillors and officers

(a)

The Federal Councll may remove from

office any officer or member

of

the

Federal Council at

a meeting of the

Federal Council to which the person

concerned has been summoned in writing

signed by the Federal Secretary or

Federal President to show cause why he

or

she

should

not

be so removed.

Provided that no such person shall be removed from office unless he or she

been

has

found

of

gull

ty

mlsappropriation of the

funds of the

Association. a

substantlal breach of

the rules of the Associatlon. or gross

misbehaviour or gross neglect of

duty,

or has

ceased,

according

to

these

rules, to be eligible to hold the

off ice.

22 - Executive Committee

....

(a)

There shall be an Executive Committee comprls1ng:-

(1)

the

Federal

President,

two

Vice-Presidents and Treasurer;

(11)

the Federal Secretary; and

(ill)

the Branch President of each

Branch

which

is

not

already

represented

on

the

Executive

Committee pursuant to (1) hereof by virtue of a member of

that Branch

being

Federal

President,

Vice-President

or

Treasurer: ...

taal

If

any

member

of

the

Executive

Committee is unable to attend a meeting or a part of a meetlng of the Executive Committee the other member

of Federal Council from the Branch she

represents may attend

such meeting

or

part of such meeting

as proxy for her

d .

and vote on her behalf. This sub-rule

has erfect notwithstanding any other

provlsion ln the Rules.

....

(d)

A quorum for a meeting of the Federal

Executive shall be a simple ma~ority

of

members

or

proxies attending

pursuant to sub-rule taa) of this Rule

provided

that

those

persons,

other

than

the

F deral

Secretary

and

Assistant Federal Secretary (if any) represent not less than fifty percent of the total membership of the Association.

23 - Officers of the Association

....

The Federal

Officers

of

the

Association

shall be the President, two Vice-Presidents.

the Secretary and the Treasurer.

24 - Duties of the President

The President shall.

in

addition to other

duties of

the office defined elsewhere in

the Rules -

(a)

preside at all Meetings of the Council and preserve order.

(b)

upon conflrmation of the Minutes, slgn the Minute Book in the presence of the Meetmg.

(c) represent

the

Association

as

Its

principal officer when required to do

so by the Federal Council or Executive

Committee.

39 - Officers to be elected

....

(a)

The Officers CsicJ of President, two Vice Presidents and Treasurer shall be

elected by

secret postal ballot of

duly elected members of the Federal

Council

in

accordance

with

these

Rules;

the

Off

ices

of

Federal

Secretary

Assistant

nd

Federal

Secretary (if any) shall be elected by

secret postal ballot of the members of

the

Association

in

accordance

with

these Rules.

7.

- Qualifications

for

ffice

and

nomination

candidate

A

for

the

position

of

President. Vice-President or Treasurer

shall

have

been

a

member

of

the

As3oclation for a period of one year

Immediately

preceding

the

date

of

nomlnatlon for office provided that

only persons who are elected members

of

the Federal Council in accordance

with schedule A

of these Rules shall

be

ligible

to

nomlnate

tor

such

positlons. ...

No person who holds office or any pald

position

in

any

other

Association,

Organisation or Unlon with industrial objects shall be eligible to nominate

for

or

hold

office

in the

Royal

Australian Nursing Federation other

than

. . . .

A person elected as Federal Secretary

or Assistant Federal Secretary shall

not be eligible

t o hold or continue to

hold any other elected office in the

Association to continue as

a member of

any Branch Council or to be employed

or continue to be employed

in

any

capacity

bany

Branch

of

the

Association. ....

42 - Term o t offlce

(a)

The President shall hold office for

a

term of two years, and shall then be

eligible for re-election for a further

term or two years. A person shall not

be eligible for election as President

for more than two successive terms.

....

(d) Notwithstanding

the

provisions

of

Sub-Rules (a), (b) and (c) hereof., the President, Vice Presidents and Treasurer shall assume office on the

1st

April

in

the

year

of

thelr

biennial election ....

B.

46 - Extraordinary vacancies

(a)

If for any reason the posltlon of any

of the offices of the Association

becomes

vacant

between

the

normal

elections referred to in the foregolng provisions of these rules such vacancy

shall

be

filled

in

the

following

manne r :

(1) If the vacancy occurs within

six

calendar months of the Eirst day

of February of the year in which

an election for such office would

be held in accordance wlth these

rules the Federal Council may

appoint one of its members to

fill such a vacancy in the office

of

President, Vice Presldent or

Treasurer .

. . "

It may be said immediately that the rules

of

the

Federation are not easy to construe; durlng the examination

of the rules in the hearing, various possible difficulties in

the application of the rules were the sublect

of submissions

and there was some shifting of ground by counsel.

The applicant contended that, upon her resignation

from the position

of President of the Victorian Branch, Miss

Gibbs "thereupon ceased

t o be a member of the Federal Council

and ceased to be eligible to be Federal Fresident

of

the

Federatlon"

.

Dr. Buchanan did not submit that Miss Gibbs. who was

no longer a branch president and was not

a councillor from a

branch, validly remained as a member of Federal Council.

In

my opinion she is not

a member of the Federal Council and, as

9

It is members of that Council who "shall be entitled to vote

In deliberations of

the Federal Council" (sub-rule

14(c)),

she 1s not entitled to vote in Federal Council.

It

follows

that orders should be made

in the terms of paragraphs (c)(i)

and td)(i) of the rule to show cause.

It is clear that the Federal President must be

a

member of the Federal Councll in order to be a candldate for

election a3 Federal

President

(sub-rule

40ta)).

The

applicant has submitted that the scheme of the rules is that

a person elected as the Federal President must continue to be

a member of Federal Council in order to continue to hold the

office of Federal President. Accordingly,

Miss Gibbs, on

ceasing to be

a member of the Council, ceased to be eligible

to hold the office

of Federal President. In this connexion

it was submitted that sub-rule

40(a) should not be read in a

literal and narrow way and reliance was placed upon a number

of rules relating to the office

of Federal President and her

role in the affairs

or the Federation.

I am

not

prepared

to

uphold

the

applicant's

submission. In my opinion sub-rule 40(a) can not fairly be

construed as requiring a person, who was validly elected

as

Federal President, to remain a member

of the Federal Council

in order to contmue to hold the office of Federal President.

Sub-rule 40(a) deals only with

"a candidate" for certain

offices: it

specifies certain requirements before persons

10.

become "ellglble to nomlnate for such positions". It says

nothing espress1:J

on the mbject 01 whether a person must

remain a member of the Federal Council in order to "continue

to hold

...

offlce": nor can such

a requlrement, In my

oplnion, be falrly said to be implied in the sub-rule.

Rule 40 is

headed

"Quallficatlons

Tor

offlce

and

nommatlon". The terms of sub-rule 40(a) contrast sharply

wlth those of sub-rule 4O(d).

The latter sub-rule expressly

provldes that a person elected "as Federal Secretary

...

shall not be eligible to hold or continue to hold any other

elected offlce

..."

(see also the express use, in sub-rule

40tbl. of the words "to nomlnate tor or hold offlce in

..."

) .

The insertion of those express words

in sub-rules 40tbl and

( d ~

runs counter to

the submission by the appllcant that an

implication should be read into sub-rule

4 0 ( a ) .

The applicant's counsel submltted

that. ~f the flfteen

respondents were correct In

them contentlon that the rules

did not require that the Federal President continue to

be a

member of the

Federal

Councll,

then

the

rules

become

unworkable.

Reference

was

made

to

various

rules

e.g.

sub-rule 14(c) and 14(f)(iv)

-

as to voting in Federal

Council; rule 19

- as to

a quorum; rule 4BC - as to the

conduct of meetings; and sub-rule 22(aa)

- as to proxy votlng

on the Executive Committee.

of which the Federal President is

a member.

It may be noted

m passing that the "Executive

11.

committee" is elsewhere In the rules

(e.g. sub-rule 22(d) and

rule 2 6 A ) referred to as the "Federal Executive", but

i was

accepted by the partles that those expressions refer to

the

one committee, notwlthstanding the use

or dlfferent names.

I accept fir. Buchanan S submission that the rules are

not unworkable: also

hls submission that those dlfficulties

which exist are not such as to lead

the court to hold that

there is an implication - either in sub-rule 40(a,

or in the

rules generally - that a person must remain

a member of

Federal Councll In

order to continue to hold the office of

Federal President.

The Act does not require the Federation to have rules

which

would

lead

to

the removal

from

office

- either

automatically or otherwise

- of

a Federal President who.

having been elected to that office as

a

person eligible

because she was a Branch Presldent, later resigned that

office. There may

be good reasons for the view that the

rules should provide for the Federal Presldent to lose office in those clrcumstances. On the other hand, there may be good

reasons for permitting a person who was validly elected

as

Federal President to continue to hold that office for

a

relatively short period after resigning her office as Branch

President.

The considerations whlch support each

of the two

opposing views are matters whlch can be investigated and

taken into account by the Federatlon's rule making body

if it

12.

wishes to consider amending the rules as to that

sub~ect

matter. The court's functlon is to express

an opinion as to

the meaninq of the rules in

thew present form.

It will be clear from what has been said earlier, in comparing the terms of the provisions in sub-rules JOtah and

4O(d) respectlvely, that

in my opinion sub-rule 40(a) does

not have the meaning for whlch

the applicant contends. Both

the headmq to rule

4 0 , and the content

of

that rule as a

whole. show that it is a provision which deals specifically not only 71th "qualifications for nommation' (as 15 done in

sub-rules 40(a) and

( c ) ) but also

with "qualifications for

office" (as is done in

sub-rules 40(b) and (d)). Without

assuming

that

the

person

drafting

rule

40 had

all

the

quallfications and experlence

of a parliamentary counsel, the

terms of the sub-rules make

It clear that the draftsman

plainly had in mlnd the dlstlnction between.

on the one hand,

qualifications for nomlnation as a candidate (see sub-rule

40(a)), and, on the other, qualifications

to "hold office"

(sub-rule 40(b))

or "to hold or contlnue to hold ...

office"

(sub-rule 40(d)).

Accordingly, although the proper construction of the

rules of

the

Federation

1s a

matter

of

considerable

difficulty, I have reached the conclusion that the rules do

not manifest an intention that the Federal President shall

only be entitled to continue to hold that office whilst she

13.

remalns an "elected member of the Federal Council" (sub-rule

4 0 ( a ) ) .

That opinlon 15 based upon the construction of

that

sub-rule. read in the light

of both its immediate contest and

the context of

the rules as a whole, including those rules

cited by the applicant as tending to support her contention

as to the

meanmg of the rules.

In reaching

that

concluslon

I have

accepted Dr.

Buchanan's submission that sub-rule 4 0 ( a ) , In providing that

"only persons who are elected members of the Federal Councll

... shall be eligible to nominate

for such positions". means

that the candidate must

be eligible to nomlnate not only on

the date when

the nomination

1s lodged with the Returning

Officer but, as he expressed It, "right up to the point when the election is held". It follows that, dealing wlth the

hypothetical case raised by Mr. Moore

durmg his submisslons,

a member who was "eligible

t o

nominate" at the date of

lodging her nomination, but who resigned

as Branch President

immediately after so doing (I.e. before the election), would

not be "eligible to nominate" for election

to the position of

Federal President. Applying that constructlon

of the rules

to

the

facts

of thls

case,

Miss

Gibbs

did

not

cease

"according to these rules, to be eligible

to hold the office"

of Federal President within the meaning of

those words of

sub-rule 20(a).

14.

It may be added that the appllcant's contention

1s not

assisted by Mr. Moore's submlssion that "where the holder of

the office resigns from

a posltlon which

1s a condition

precedent to the continued occupatlon of another positlon.

that is an effective

resignation from the second posltion."

That submivslon

is based upon the

view, which has already

been re~ected, that

the

rules

requlred

that

Miss

Gibbs

continue to occupy the posltion

of Branch Presldent as a

condltion precedent to her continued occupancy

of the office

of Federal President.

The applicant, havlng falled to establlsh that Miss

Gibbs is not

entitled to hold "herself out

as ... Federal

President of the Federation", It follows that the court will not make elther of the orders set out in paragraph (c)(ii)

and paragraph (d)(ii) of the rule to show cause. However,

as

already

stated,

orders

will

be

made

in

the

terms

of

paragraphs (c)(i) and (d)(i).

The foregoing is sufficlent to dispose

of the matters

falling for decision at this stage. However, having regard

to

the

arguments

which

have

been

advanced

and

to

the

particular clrcumstances of this case, it may be desirable to

refer briefly

to

some of the other

matters as to which

submissions have been advanced.

15.

It Was submitted by the applicant that Miss Gibbs had

automatically lost office as Federal Presldent. Even

it,

contrary to the opinion already expressed. Miss Gibbs wa , by reason of her resignation from the position of Presldent of the Victorian Branch, no longer eligible to hold the office

of Federal President, in my oplnion the rules do not show an intention that she should automatically cease to be Federal

President. I have

formed

that opinion as a

matter

of

construction of the rules generally and of sub-rule 20(a) in

particular. That sub-rule makes specific provision for the

removal from office, by the Federal Councll, of any officer,

including the Federal President, where she "has ceased,

according to these rules, to be eligible to hold the office".

That

opinion gains some support from what was sald by

Woodward and Northrop

JJ.. with whom Smithers ACJ. agreed, in

Allshorn v Ytapleton (1984) 4 FCR 236 at 241.

Shortly after the commencement of the hearing,

Mr.

Moore asked that

the rule to show cause be amended by

the

addition of the tollowing proposed orders:

"That the second

to seventeenth respondents

and each of them perform and observe the

rules of the Federation by:

(a) causing

the

first

respondent

to

be

summoned to a meeting of the Federal

Council in accordance with rule

20;

(b) determining

whether

first

the

respondent has ceased, according to

the rules,

t o

be

eligible

to

hold

office as:

16.

(1)

a member of. Federal Council

(ii) Federal Presldent.

(c)

removing the first respondent from the

office or offices aforesald as the

case may be in the event that

It

is

determined that

the first respondent

has ceased, according

to the rules, to

be eliglble

to hold either or both

those off ices.

The amendments wlll not be made. Insofar as those

proposed additional orders relate to Miss Gibbs' offlce as a

member of Federal Councll,

it is unnecessary to enlarge the

rule to show cause because orders are to be made as to those

matters. Insofar as they relate to

Miss

Gibbs' office as

Federal Fresident, the proposed orders would not be made

because of the opinlon already expressed

that

the first

respondent has not "ceased, according

to the rules, to be

eligible to hold office as

... Federal Fresldent".

However, even If that oplnlon had not been reached,

the court would have exercised Its discretion against making

orders on those matters.

The discretion would have been so

exercised

for

reasons

similar

to

those

referred

to

by

Woodward and Northrop

JJ. in Allshorn v Stapleton (1984)

4

FCR 236. Their Honours tat 241) referred to the fact that In

that case, "the Association was now well advanced towards

holding the State elections in New South Wales and South

Australia ... we would have refused the orders sought".

l/.

AS to

the factual position in the present case

Mr.

Moore accepted

”the new Presldent will assume offlce on

1

April C19871. The time requlred for the holding

of a special

council meeting I s 28 days.”

In those circumstances. even if

the applicant had succeeded on the other matters and

~udgment

had been given on the

day of the

hearing, the court would

have refused

to make the orders, in the exercise of

its

dlscretion, based upon

the

extremely short perlod of time

that would have remalned between the date of any decision by

the Federal Council and the assumption of office by the new

Federal Presldent.

I certify this and the precedlng

sixteen pages to

be a true copy

of the Reasons for Judgment of

his Honour

Mr Justice Keely.

I

Date :

19 March, 1987

.'

19.

Dates of Hearlnq

10 February, 1987

Counsel for the Appllcant

Mr. M. Moore

Mr. B. Mueller

Solicltors for the Appllcant

:

Cedrlc

Ralph,

Pelrce

&

Dawson

Counsel for the Respondent

:

Dr. P. Buchanan P.C.

Mr. W. B. Struqnell

Solicitors for the 4th and

5th Respondents:

John & Green

Solicitors for the 10th and

11th Respondents:

Slater & Gordon

Solicitors for all Respondents

other than 4th. 5th. 10th

and 11th:

Ryan Carllsle Needham

&

Thomas

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