Dargavel v Cameron

Case [2002] FCA 1234

FEDERAL COURT OF AUSTRALIA

Dargavel v Cameron [2002] FCA 1234

INDUSTRIAL LAW – rule to show cause – whether national council of union had power to appoint an administrator of state branch where state secretary of union suspended – whether appointment of administrator ceased upon resignation of suspended state secretary – whether national council had power to direct state council not to appoint a state secretary or acting state secretary during the period of appointment of administrator – whether applicant validly appointed as state secretary – whether state council had power to appoint a state secretary during period of appointment of administrator – whether prior notice of resolution to be proposed at meeting required – whether resolution to appoint state secretary made for improper purpose – whether applicant fulfilled eligibility criteria for appointment as state secretary – whether administrator’s appointment could co‑exist with applicant’s appointment as state secretary – whether court can consider eligibility of applicant for appointment where no election inquiry.

Workplace Relations Act 1996 (Cth): s 209

Johnston v Cameron [2002] FCA 948, applied
Johnston v Cameron [2002] FCA 634, referred to
Campbell v Higgins (1957) 3 FLR 317, referred to
McLure v Mitchell (1974) 24 FLR 115, referred to
Campbell v Crawford (1986) 12 FCR 317, referred to
Johnson v Beitseen (1991) 41 IR 395, referred to
Cummings v Macks (2000) 96 FCR 345, considered
Joyce v Christoffersen (1990) 26 FCR 261, considered
Allen v Townsend (1977) 31 FLR 431, referred to
Scott v Jess (1984) 3 FCR 263, referred to
In the Matter of an Election for an Office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (von Doussa J, 12 October 1998, unreported), applied
Fohmsbee vAutomotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999) 88 IR 237, distinguished
Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, considered
Landeryou v Taylor (1969) 15 FLR 147, considered
Ransley v Australian Public Service Association (Fourth Division Officers) Tasmanian Branch (1985) 12 IR 55, referred to

Magner, Joske’s Law and Procedure at Meetings in Australia 8th ed. 1994 Ch 3

STEVEN DARGAVEL v DOUG CAMERON & OTHERS (according to the Schedule of Respondents)

V 573 of 2002

GOLDBERG J
4 OCTOBER 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 573 of 2002

BETWEEN:

STEVEN DARGAVEL
Applicant

AND:

DOUG CAMERON & OTHERS
(According to the Schedule of Respondents)
Respondents

JUDGE:

GOLDBERG J

DATE:

9 OCTOBER 2002

PLACE:

MELBOURNE

THE COURT ORDERS THAT:

1.Paragraphs 1, 2, 3, 3A and 5 of the Rule to Show Cause granted on 4 September 2002, as amended by leave on 11 September 2002, be discharged.

2.The applicant not having pressed for an order in terms of paragraph 4 of the said Rule to Show Cause, paragraph 4 of the said Rule to Show Cause be discharged.

3.        The order made on 13 September 2002 that:

“Until the determination…

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Dargavel v Cameron [2002] FCA 1234
Case
[2002] FCA 1234
Decision Date

CaseChat Overview and Summary

The matter of Dargavel v Cameron concerns the dispute over the control and management of the Victorian State Branch of the Union. The primary parties involved are the Victorian State Council, which appointed Mr Dargavel as the Victorian State Secretary, and the National Council, which appointed an Administrator, Mr Oliver, to control and administer the Victorian State Branch. The case was heard in the Supreme Court of Victoria.

The legal issues central to this case revolve around the interpretation and application of the Union's Rules regarding the appointment and authority of officers within the organisation. Specifically, the court had to determine whether the National Council had the power to appoint an Administrator of the Victorian Branch under the circumstances, the duration and effects of such an appointment, and whether the State Council was legally precluded from appointing a State Secretary during the Administrator's tenure. Additionally, the court examined whether Mr Dargavel was validly appointed as the Victorian State Secretary and if his appointment could coexist with the Administrator's role. The court also addressed whether the National Council had the authority to remove or nullify Mr Dargavel’s appointment and suspend the operation of the Victorian State Council.

The court’s reasoning was grounded in a meticulous analysis of the Union’s Rules and the resolutions passed by the National Council. It concluded that the National Council did have the authority to appoint an Administrator and direct the State Council in specific circumstances, but that such authority was subject to the terms and conditions set out in the resolutions. The court determined that Mr Dargavel’s appointment as the Victorian State Secretary was valid and effective, and that it could coexist with the Administrator's role. The court further found that the National Council’s resolutions did not prohibit the State Council from appointing a State Secretary and that Mr Dargavel's eligibility and appointment were not impeded by procedural shortcomings. The court also ruled that the National Council lacked the power to unilaterally remove or nullify Mr Dargavel’s appointment as State Secretary and to suspend the Victorian State Council without proper justification.

The final orders of the court included discharging certain paragraphs of the Rule to Show Cause, releasing the respondents from their undertaking, and prohibiting the National Council from making certain resolutions regarding the appointment and control of the Victorian State Branch.

Orders

Orders of the court

1. Paragraphs 1, 2, 3, 3A and 5 of the Rule to Show Cause granted on 4 September 2002, as amended by leave on 11 September 2002, be discharged.

2. The applicant not having pressed for an order in terms of paragraph 4 of the said Rule to Show Cause, paragraph 4 of the said Rule to Show Cause be discharged.

3. The order made on 13 September 2002 that:

“Until the determination of this proceeding or further order, the Respondents refrain from making any resolution of the National Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union in terms of or in terms with the same or similar effect of paragraphs (i), (ii) or (iii) of the proposed resolution circulated to the Respondents on 4 September 2002 by the Third Respondent and annexed to the affidavit of Steven Dargavel sworn 4 September 2002.”

be discharged.

4. The respondents are released from their undertaking to the Court that pending the determination of this proceeding they will not hear or determine the charges laid by Mr Julius Roe on 3 September 2002 against various persons.

Background

Background to the litigation

The current issue relates to the control and management of the Victorian State Branch of the Union. The combatants are respectively the Victorian State Council which claims to have appointed Mr Dargavel to the position of Victorian State Secretary and the National Council which claims to have appointed an Administrator, the second respondent (“Mr Oliver”), to control and administer the Victorian State Branch. Under the Rules of the Union the Victorian State Secretary has the day‑to‑day management and control of the Victorian State Branch subject to the control of the Victorian State Council.Background In July 2000 Mr Craig Johnston was elected Victorian State Secretary of the Union. On 2 July 2002 a report into the Victorian Branch of the Union was delivered to Mr Cameron. The report included a serious allegation against Mr Johnston. On or about 3 July 2002 Mr Maurice Addison laid two charges against Mr Johnston under r 13 of the Rules of the Union. The charges came before a meeting of the National Council on 9 July 2002. The National Council resolved to hear the charges on 12‑14 August 2002 and also passed a resolution directing Mr Johnston not to perform the duties of the Victorian State Secretary. The resolutions were in the following terms:“Having regard to the charges of Bro. Addison and to the response of Bro. Johnston, National Council resolves pursuant to rule 13.9(a)(i), without expressing any view as to the truth or otherwise of the charges, that it is appropriate to proceed with the charges and calls upon Bro. Johnston to attend before a Special Meeting of the National Council to be held at the National Office, 133 Parramatta Road, Granville, commencing at 9.00am, 12 August 2002, to show cause why he should not be removed from the offices he holds in the Union, including the office of Victorian State Secretary.National Council further resolves that until 5.00pm Wednesday, 14 August 2002, or until the decision of National Council in relation to the charge, whichever is the earlier, Bro. Johnston is directed to not perform any of the duties of the offices he holds in the Union, namely Victorian State Secretary and the ex officio offices he holds as a consequence of holding that office, Delegate to National Conference and member of National Council and during that time will not attend any meeting of the Union or attend any office of the Union;”A further resolution appointing Mr Oliver as the Administrator of the Victorian Branch with all the powers of the State Secretary was passed in the following terms:“National Council has resolved that until 5pm Wednesday 14 August 2002 or until the decision of National Council in relation to the charges, whichever is the earlier, Bro Johnston is directed not to perform the duties of the Victorian State Secretary. National Council therefore determines, having regard to the extraordinary situation which exists in the Victorian Branch, that the following arrangements shall apply for the administration of the Victorian Branch during the period of this direction:(a)Assistant National Secretary Dave Oliver shall be the Administrator of the Victorian Branch and shall have all the powers of the State Secretary and carry out all the duties of the State Secretary.(b)Brother Oliver as the Administrator shall be assisted in the performance of his duties by all employees, officials and officers of the Victorian Branch. Employees, Officers and Officials are directed to implement all directions of the Administrator given pursuant to the Rules and to take no action to overturn, contradict or affect such decisions.(c)Pursuant to the Rules including Rule 8 and Sub‑rule 26.2 the State Council is directed not to make any decision which:·Alters or affects or contradicts any aspect of the decisions of National Council.·Purports to appoint a State Secretary or Acting State Secretary pursuant to Rule 4A.12(ac).·Purports to overturn or contradict or affect a decision of the Administrator concerning the management of the staff, officers or officials of the Branch or the allocation of their work unless the matter has first been referred to the National Council for its consideration.…”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J
The Rules make provision for what is to occur when a vacancy occurs in national and state offices. Rule 4, Pt A.12(ac) provides:“(i)Where a vacancy occurs in the offices of National President, National Secretary, Assistant National Secretary, National Organiser, State Secretary, State President, Assistant State Secretary and State Organiser otherwise than at the expiration of the term of office of the person elected thereto, the Returning Officer shall, subject in the case of National Organiser and State Organiser to rule 8A of these rules, as soon as practicable, conduct an election in accordance with this rule for the office; and(ii)pending the declaration of the result of the election the National Council may in respect of National offices or the State Council in respect of State offices may and in the case of National Organiser and State Organiser appoint to the office a member of the Union eligible for election to the office for a period not exceeding 12 months.”The issues and questions which arise for decision The issues raised, and the submissions made by Mr Dargavel and the respondents, require answers to be given to the following questions:1.Did the National Council have the power to appoint an Administrator of the Victorian Branch in the circumstances which existed on 9 July, 31 July and 13 August 2002?2.If National Council did have the power to appoint an Administrator of the Victorian Branch in such circumstances:(a)what was the period of the appointment of the Administrator made by the National Council on the proper construction of the resolutions?(b)did the appointment of the Administrator lapse or terminate upon Mr Johnston resigning as State Secretary on 2 September 2002?3.Did National Council have the power to direct the State Council not to appoint a State Secretary or Acting State Secretary pursuant to r 4, Pt A.12(ac) during the period of the appointment of the Administrator by National Council?4.Did State Council have the power to appoint a State Secretary pursuant to r 4, Pt A.12(ac) during the period of the appointment of the Administrator by National Council or was it prohibited by the National Council resolutions from exercising its power of appointment?5.Was Mr Dargavel validly appointed to the position of State Secretary by State Council on 2 September 2002:(a)Was the State Council prohibited by the National Council’s resolutions from exercising its power to appoint a State Secretary?(b)Was Mr Johnston’s letter of resignation properly before State Council?(c)Was the State Council’s resolution of 2 September 2002 invalid because the meeting of 2 September 2002 was a Special Meeting of the State Council and required prior notice of the proposal to fill the vacancy of State Secretary to be given to the members of State Council?(d)Was the State Council’s resolution on 2 September 2002 invalid because notice of the proposal to fill the vacancy was not provided to all members of the State Council prior to the meeting?(e)Was the State Council’s resolution on 2 September 2002 invalid because it was made for an improper purpose being:(i) to bring the appointment of the Administrator to an end?(ii)to reinstate the effective control of the Victorian Branch to Mr Johnston?(iii)not for the purpose of making an appointment under r 4, Pt A.12(ac)(ii)?(f)Was Mr Dargavel eligible to be appointed to the position of State Secretary on 2 September 2002?6.Can the appointment of the Administrator and Mr Dargavel be valid and effective at the same time?7.Is the Court empowered in a proceeding brought pursuant to s 209 of the Act to answer the issues raised in question 5, as a basis for refusing relief?8.If Mr Dargavel has been validly appointed as State Secretary, have the respondents, or some of them:(a) obstructed Mr Dargavel in the course of his duties?(b) refused to recognise Mr Dargavel as Victorian State Secretary?9.If Mr Dargavel has been validly appointed, does the National Council have the power under the Rules to remove him or otherwise nullify his appointment as State Secretary in the manner set out in the proposed resolutions circulated to members of the National Council on 4 September 2002?10.Does the National Council have the power to suspend the operation of the Victorian State Council in the terms contained in the resolution circulated to members of the National Council on 4 September 2002?

Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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