Derek Graham Nicholson v M Pitt, P Tighe, B Schmitt, R Cavanagh, J O'Brien, R Gerharty, R Hendricks, a Kenny, T Brady

[1995] IRCA 618

CATCHWORDS

INDUSTRIAL LAW - REGISTERED ORGANISATIONS - rules - performance and observance - rule to show cause - charges and suspension orders brought against members of the Victorian Branch of the Electrical Division of CEPU - application for interim relief - whether an interim order would provide for “the fairest and most convenient temporary arrangement” - whether applicant has disclosed an arguable case - whether interim relief is tantamount to final relief - availability of internal remedies

Industrial Relations Act 1988 ss 209

Derek Graham Nicholson v D J Mighell and Others, Industrial Relations Court of Australia, VI 4765 of 1995, Marshall J, 18 September 1995, as yet unreported.

Derek Graham Nicholson v D J Mighell and Others, Industrial Relations Court of Australia, VI 4765 of 1995, Marshall J, 13 October 1995, as yet unreported.

McGee and Another v Sanders and Others (No 2) (1991) 32 FCR 397, 403

Freda Bogar v G Campbell & Others, Industrial Relations Court of Australia, VI 1809 of 1994, Keely J, 12 October 1994, as yet unreported, 8-9

Baird v Kingham and Others (1993) 51 IR 264, 264

John Buchanek v Ian Jones and Others, Federal Court of Australia, VI 12 of 1989, Gray J, 26 April 1989, as yet unreported, at 11-14

Hawkins v Willis and Others (1981) 58 FLR 364, 371

Hills and Others v Higgins and Others (1982) 61 FLR 131, 152.

R v Joske and Others; Ex parte Shop Distributive and Allied Employees’ Association and Others (1976) 135 CLR 194, 213

No. VI 5655 of 1995

DEREK GRAHAM NICHOLSON v M. PITT, P. TIGHE, B. SCHMITT,
R. CAVANAGH, J. O’BRIEN, R. GERHARTY, R. HENDRICKS, A. KENNY,
T. BRADY

Marshall J
Melbourne
15 November 1995

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY            )  No. VI 5655 of 1995

BETWEEN:           DEREK GRAHAM NICHOLSON

Applicant

AND:  M. PITT, P. TIGHE, B. SCHMITT,
   R. CAVANAGH, J. O’BRIEN, R. GERHARTY,
  R. HENDRICKS,  A. KENNY, T. BRADY

Respondents

JUDGE:         Marshall J

PLACE:         Melbourne

DATE:  15 November 1995

ORDER

THE COURT ORDERS THAT:

1.Until the hearing and determination of the proceeding or further order, the respondents shall refrain from treating Gary Main and Richard Gray as having been suspended from membership of the CEPU, as a result of resolutions made by the respondents on 26 and 27 October 1995.

2.Liberty is reserved to any party to apply on 72 hours notice in writing to each other party.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY            )  No. 5655 of 1995      

BETWEEN:           DEREK GRAHAM NICHOLSON

Applicant

AND:  M. PITT, P. TIGHE, B. SCHMITT,
   R. CAVANAGH, J. O’BRIEN, R. GERHARTY,
  R. HENDRICKS,  A. KENNY, T. BRADY

Respondents

JUDGE:         Marshall J

PLACE:         Melbourne

DATE:  15 November 1995

EX-TEMPORE REASONS FOR JUDGMENT

BACKGROUND

On 8 November 1995 the Court granted a rule calling upon the respondents to show cause why the following orders should not be made.

“1.The Respondents perform and observe the rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) by treating as null and void the purported charges made by Maurice Graham, the Divisional Branch President of the Electrical Division, against Gary Main on 25th September, 1995 and 11th October, 1995 and Richard Gray on 2nd October, 1995 and 11th October, 1995.

2.The Respondents treat as null and void the purported summons of Maurice Pitt, the Divisional President of the Electrical Division directed to Gary Main dated 12th October, 1995 and to Richard Gray dated 2nd October, 1995 and 12th October, 1995.

3.The Respondents treat as null and void the decision of the Divisional Executive President and/or the Divisional Secretary to hold a meeting of the Divisional Executive on the 26th October 1995 to hear the purported charges against Gary Main and Richard Gray.

4.That the Respondents treat as null and void all decisions of the Divisional Executive in relation to the said purported charges against Gray (sic) Main and Richard Gray which were made at its meeting held on 26th and 27th October 1995.”

On 13 November 1995 the Court heard an application by the applicant for interim orders.  The interim orders sought were in the same terms as the orders sought by way of final relief, pending the hearing and determination of the matter.  Further written submissions were filed today and further brief oral submissions were made.

The factual background to the matter is as follows:

• The applicant is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”).

• The CEPU is an organisation of employees registered pursuant to the Industrial Relations Act 1988 (“the Act”).

• The respondents are members of the Divisional Executive of the Electrical Division of the CEPU (“the Divisional Executive”).

• The other members of the Divisional Executive are Gary Main and the applicant.

• Gary Main was until 29 August 1995 the Victorian Branch Secretary of the Electrical Division of the CEPU (“the Electrical Division”).

• Richard Gray was until 29 August 1995 the Victorian Assistant Branch Secretary of the Electrical Division.

• The elections for the offices of Branch Secretary and Assistant Branch Secretary were declared void by order of the Court on 18 September 1995.  See Derek Graham Nicholson v D J Mighell and Others, Industrial Relations Court of Australia, VI 4765 of 1995, Marshall J, 18 September 1995, as yet unreported.

• The Court made holding over orders in favour of the persons elected to the offices formerly held by Messrs Main and Gray.  See Derek Graham Nicholson v D J Mighell and Others, Industrial Relations Court of Australia, VI 4765 of 1995, Marshall J, 13 October 1995, as yet unreported.

• Nominations for the fresh elections for the offices of Branch Secretary and Assistant Branch Secretary opened on 9 October 1995.

• Gary Main is a candidate in the election for the office of Branch Secretary.

• Richard Gray is a candidate in the election for the office of Assistant Branch Secretary.

• A meeting of the Divisional Executive occurred on 26 September 1995.  At the meeting Gary Main was handed a document dated 25 September 1995 which contained six charges against him.  The document was headed “CHARGE” and was in the following terms:

“I MAURICE GRAHAM of 109 Neasham Drive, North Dandenong, being a member of the Victorian Branch of the Electrical Division (“the Branch”) of CEPU HEREBY CHARGE GARY NORMAN MAIN (Main”) who is also a member of the Victorian Branch of the Electrical Division of CEPU, with the following offences under Rule 27 of the Electrical Division Rules (“the Divisional Rules”):

1.On or about 4 August, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.2.2 thereof, he signed cheque No. 010774 on the General Account of the Branch for the sum of $3000 before the same had been passed by the Divisional Branch Executive of the Branch, which cheque was not for an ordinary business expenditure of the Branch.

2.On or about 4 August, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 12.5.2 thereof, he failed to keep proper account of the sum paid by cheque No. 010774 on the General Account of the Branch for the sum of $3000, there being no invoice or receipt therefor.

3.On or about 4 August, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied limitation in the rules against the use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates, in that he did use the proceeds of cheque No. 010774 drawn on the General Account of the Branch in the sum of $3000 to support or promote, and to influence voters to support, him and the candidates standing on his team in the 1995 elections in the Branch by using it to pay for postage of electioneering material to the members of the Branch.

4.On or about 14 August, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied limitation in the rules against the use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates, in that he signed and used the proceeds of cheque No. 010790 drawn on the General Account of the Branch in the sum of $1200 to support or promote, and to influence voters to support, him and the candidates standing on his team in the 1995 elections in the Branch by using it to pay for production and printing of electioneering stickers supportive of Main and his team.

5.On or about 18 and 24 July, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied limitation in the rules against the use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates, in that he signed and used the proceeds of cheques Nos. 010695 and 010739 drawn on the General Account of the Branch in the total sum of $5280, to support or promote, and to influence voters to support, him and the candidates standing on his team in the 1995 elections in the Branch by using them to pay for two computers and a printer which were used for the production and printing of electioneering material supportive of Main and his team that was distributed to the members of the Branch.

6.On or about 18 and 24 July, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied limitation in the rules against the use of union resources in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates, in that he used or permitted the use of the two computers and printer purchased with the proceeds of cheques Nos. 010695 and 010739 drawn on the General Account of the Branch in the total sum of $5280, to support or promote, and to influence voters to support, him and the candidates standing on his team in the 1995 elections in the Branch by producing and printing electioneering material supportive of Main and his team that was distributed to the members of the Branch.

REMOVAL AND SUSPENSION FROM OFFICE

Each of the above offences, if proved, would constitute misappropriation of the funds of the Branch and thus the Union, a substantial breach of the Divisional Rules and gross misbehaviour and gross neglect by Main, and thus grounds for removal from office under Rule 27.5 of the Divisional Rules.

Therefore, in relation to each of the above offences, if proved, I do ask that Main:

(a)be removed from any office or offices which he holds in the Branch and/or the Electrical Division of CEPU;

(b)be expelled from the CEPU;

(c)pursuant to Rule 25.1.1, he be immediately suspended from any office which he holds in the Branch and/or the Electrical Division of CEPU until the charge is determined or for 3 months whichever is the lesser period.”

• At the Divisional Executive meeting on 26 September 1995 the first respondent issued the following written statement:

“Statement from the Electrical Divisional President of the CEPU Mr Martin Pitt

Having considered the information supplied to me by the Divisional Secretary in relation to serious allegations and charges laid against Messrs G. Main and D. Gray which go to the misuse of union funds and serious breach of rules of the Division.  The particulars of which are as follows:

·   the expenditure of some three thousand dollars of branch funds on bulk mailing of partisan election material for the Main team;

·   the expenditure of branch funds on printing of partisan election material (stickers) for the Main team;

·   the apparent taking of a video camera owned by the union;

·   the purchase with branch funds of two computers and a printer and the utilisation of this equipment in the production of partisan election material for the Main team; and

·   the purchase/lease with branch funds of three mobile phones and the utilisation of this equipment for partisan election purposes for the Main team.

I suspend Messrs Main and Gray from all offices held by these members in the Electrical Division of the CEPU, pending the determination of allegations and charges made against them in accordance with the Rules.”

• On 3 October 1995 charges were laid against Richard Gray in the following terms:

“I MAURICE GRAHAM of 109 Neasham Drive, North Dandenong, being a member of the Victorian Branch of the Electrical Division (“the Branch”) of CEPU HEREBY CHARGE RICHARD GRAY (“Gray”) who is also a member of the Victorian Branch of the Electrical Division of CEPU, with the following offences under Rule 27 of the Electrical Division Rules (“the Divisional Rules”):

1.On or about 14 August, 1995 Gray failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates he ordered the printing of electioneering stickers and used the proceeds of cheque no. 010790 drawn on the General Account of the Branch in the sum of $1200 to support or promote, and to influence voters to support, Gray and the candidates standing on the Main team in the 1995 Branch elections.

2.On or about 24 August 1995 Gray failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates, Gray took possession and used a computer and a bubble-jet printer that was purchased with the proceeds of cheque No. 010739 drawn on the General Account of the Branch for the sum of $2800, to support, promote and to influence voters to support Gray and candidates on the Main Team in the 1995 elections in the Branch by producing and printing electioneering material supportive of Main and his team that was distributed to members of the Branch.  The computer and printer was not found in the office when Dean Mighell took over as Branch Secretary on 29th August 1995.  This computer has been checked by a computer technician and he was able to retrieve material from the hard disk which had unsuccessfully been attempted to be erased.  Attached is a bundle of documents that were retrieved.  It is clear from the material that this computer had been used for the preparation of election material by Main/Gray and their team.

3.In breach of Rule 27.1.11 he aided and encouraged Gary Main to commit the offences charged in my charge against Gary Main dated 25th September 1995.  A copy of which is attached.

REMOVAL AND SUSPENSION FROM OFFICE

Each of the above offences, if proved, would constitute a substantial breach of the Divisional Rules and gross misbehaviour by Gray, and thus grounds for removal from office under Rule 27.5 of the Divisional Rules.

Therefore, in relation to each of the offences, if proved, I do ask that Gray:

(a)be removed from any office or offices which he holds in the Branch and/or the Electrical Division of the CEPU;

(b)be expelled from the CEPU;

(c)pursuant to Rule 25.1.1, he be immediately suspended from any office which he holds in the Branch and/or the Electrical Division of CEPU until the charge is determined or for 3 months whichever is the lesser period.”

• On 5 October 1995 the Court granted a rule to show cause calling upon the members of the Divisional Executive to treat as null and void the suspension of Messrs Main and Gray.

• On 12 October 1995 further charges were laid against Gary Main in the following terms:

“I MAURICE GRAHAM of 109 Neasham Drive, North Dandenong, being a member of the Victorian Branch of the Electrical Division (“the Branch”) of CEPU HEREBY CHARGE GARY NORMAN MAIN (“Main”) who is also a member of the Victorian Branch of the Electrical Division of CEPU, with the following offences under Rule 27 of the Electrical Division Rules (“the Divisional Rules”):

1.On or about 27 July, 1995 Main failed to observe the Divisional Rules in that, contrary to Rule 20.7 thereof and the implied limitation in the rules against the use of union funds in an election to support or promote, or to influence voters to support, certain candidates in the election to the exclusion of other candidates in the election to the exclusion of other candidates (sic) and used the proceeds of cheque no. 010697 drawn on the General Account of the Branch in the sum of $3000 to support or promote, and to influence voters to support, him and the candidates standing on his team in the 1995 elections in the Branch by using it to pay for postage of electioneering material to the members of the Branch.

The amounts and the stamps usage could not be matched with the general day to day operations of the Union for the period July and August 1995.  The stamps are no longer on hand have not been adequately accounted for.  It is therefore clear that fundamental breaches of internal control have occurred in that:

(i)The cheque was made payable to cash

(ii)No adequate record of the nature of the expenditure for Union       business was made or is available.

2.On or about the 27th July 1995 Main failed to observe the Divisional rules in that, contrary to Rule 20.7 he used the proceeds of cheque no. 010697 drawn on the General Account of the Branch in the sum of $3000 for purposes unconnected with the Branch.  The amount was used to buy postage stamps.  The amounts and the stamps usage could not be matched with the general day to day operations of the Union for the period July and August 1995.

The stamps are no longer on hand have not been adequately accounted for.  It is therefore clear that fundamental breaches of internal control have occurred in that:

(i)The cheque was made payable to cash

(ii)No adequate record of the nature of the expenditure for Union       business was made or is available.

REMOVAL AND SUSPENSION FROM OFFICE

Each of the offences, if proved, would constitute misappropriation of the funds of the Branch and thus the Union, a substantial breach of the Divisional Rules and gross misbehaviour by Main, and thus grounds for removal from office under Rule 27.5 of the Divisional Rules.

Therefore, in relation to each of the offences, if proved, I do ask that Main:

(a)be removed from any office or offices which he holds in the Branch and/or the Electrical Division of the CEPU;

(b)be expelled from the CEPU;

(c)pursuant to Rule 25.1.1, he be immediately suspended from any office which he holds in the Branch and/or the Electrical Division of CEPU until the charge is determined or for 3 months whichever is the lesser period.”

• On 12 October 1995 a directions hearing took place in respect of the rule to show cause which was granted on 5 October 1995.  The Court was advised that the first respondent had revoked the suspension of Messrs Main and Gray from all offices held by them in the Electrical Division.  The first respondent further undertook not to exercise any power he may have to suspend Messrs Main and Gray before the hearing and determination of the charges which had been laid against them.  On this basis the rule to show cause was discharged.

• On 26 and 27 October 1995 the Divisional Executive met to consider the charges.  Two new charges against Gary Main were raised at the meeting.  There is a dispute between the parties as to whether Mr Main acquiesced in the hearing of those charges at the meeting.  There was also an issue as to whether the first and second respondents were entitled to participate in the hearing of the charges, by reason of Gary Main’s view that those respondents were biased against him.  Ultimately the charges were heard and determined by the Divisional Executive.  The minutes of the meeting are in evidence.  Gary Main was found guilty of some charges.  Other charges against him were “found not proven”, including a charge that he had breached Rule 20.2.2 of the rules of the Division.  He was found guilty of two breaches of Rule 12.5.2 of the rules of the Division.  Rule 12.5.2 provides as follows:

  “The Divisional Branch Secretary shall keep proper account of all moneys received or paid on account of any particular fund and shall keep separate accounts of the expenses of management and of all contributions in account thereof.”

• The other charges in respect of which Gary Main was found guilty all referred to a breach of Rule 20.7 of the rules of the Division.  Rule 20.7 is headed “Funds must further the Objects of the Union” and provides as follows:

“The funds of the Union shall be devoted to the objects set out in these Rules.”

• Rule 3 of Section A of the rules is entitled “OBJECTS” and provides as follows:

“3.1     To enrol in the Union persons eligible to be members.

3.2      To advance the interests of members and secure a proper classification structure with appropriate rates of pay.

3.3      To ensure adequate training is available for members including the maintenance of the principles of the apprenticeship system.

3.4      To ensure that award rates of pay and other provisions adequately reflect the training and skills of members.

3.5      To advance and protect the vocational interests of members including seeking and maintaining representation on all relevant authorities, committees and bodies.

3.6      To provide legal protection for members with respect to industrial and work injury related matters where deemed necessary.

3.7      To assist members in the event of unemployment, sickness, injury, mortality or industrial dispute.

3.8      To establish Divisions, Branches and Sub Branches of the Union and organise members into Divisions, Branches and Sub Branches throughout Australia.

3.9      To publish a union journal, newspaper or other media.

3.10     To advance the living and working conditions of workers and their families, and to assist kindred Unions and other bodies having these objectives.

3.11     To affiliate to, federate with, amalgamate with, or otherwise combine with any trade, industrial union or association or any political party or any other organisation having objects similar in whole or in part to the objects of this Union.

3.12     To hold, purchase, lease, mortgage, sell or otherwise deal in property.

3.13     To make financial provision for the carrying out of these objectives.

3.14     To uphold the right of combination of labour, and to improve, protect and foster the best interests of the Union and its members, and to assist them to obtain their rights under industrial and social legislation.

3.15     To secure preference of employment for unionists.

3.16     To establish and maintain an employment bureau for members.

3.17     To contribute to any charitable institution that the members may decide.

3.18     To constitute, conduct, carry on and manage clubs, holiday and rest centres for members.

3.19     To co-operate and maintain social contact with members, other unions, labour bodies and socially responsible organisations both in Australia and overseas.

3.20     To be involved, whether on a Divisional basis or as the whole union, in socially responsible citizen actions.

3.21     To assist in the establishment and/or maintenance of labour newspaper and other media.

3.22     To bring about the socialisation of production, distribution and exchange and the development and protection of effective enterprises.

3.23     To promote the policy of equality of status and opportunity for all members.

3.24     To pursue such other objects as the Council and/or the various Divisions or Divisional Branches shall from time to time determine being consistent with the express wishes of the membership as determined by these Rules.”

• Richard Gray was found guilty of a charge of having breached Rule 20.7 and also of having breached Rule 27.1.11:

“... in that he aided and encouraged G. Main to commit the offences laid against G. Main on the 25th September 1995 be found proven in relation to the 3rd and 6th charge and that R. Gray be found guilty.”

• The Divisional Executive considered the question of penalty after all charges had been dealt with.

• Messrs Main and Gray were each suspended from membership of the CEPU for six months from 27 October 1995.

APPROACH TO INTERIM RELIEF

When the Court is faced with an application for interim relief in a proceeding under s209 of the Act its duty is “to do justice as best it can”. See McGee and Another v Sanders and Others (No 2) (1991) 32 FCR 397, 403 and Freda Bogar v G Campbell & Others, Industrial Relations Court of Australia, VI 1809 of 1994, Keely J, 12 October 1994, as yet unreported, 8-9.  As Heerey J said in Baird v Kingham and Others (1993) 51 IR 264, 264:-

“... The Court has to make a decision which is the fairest and most convenient temporary arrangement, pending a full trial of the proceeding.”

If it was apparent that the application had little prospect of ultimate success the Court would not “do justice as best it can” by making an interim order.  If, however, the applicant’s submissions and the evidence before the Court reveal an arguable case, the Court should not be reluctant to grant interim relief if the justice of the situation requires it as the fairest and most convenient interim arrangement pending the trial.

CONSIDERATION OF INTERIM RELIEF IN THE CIRCUMSTANCES

It is clearly inappropriate for the Court to express a view as to whether the applicant’s case would succeed at the trial.  The issue to be determined at this stage is whether the applicant, on the evidence as it now stands, has disclosed that he has an arguable case.  If an arguable case is disclosed the Court is required to consider how justice between the parties can now best be served.  In my view the applicant clearly has an arguable case on the issue as to whether the charges based on an alleged breach of Rule 20.7 of the rules of the Division are valid charges.  I so find having regard to the decisions of the Federal Court of Australia, Industrial Division in John Buchanek v Ian Jones and Others, Federal Court of Australia, VI 12 of 1989, Gray J, 26 April 1989, as yet unreported, at 11-14, Hawkins v Willis and Others (1981) 58 FLR 364, 371 and Hills and Others v Higgins and Others (1982) 61 FLR 131, 152. In my view the applicant has a reasonable argument deserving of further consideration that the charges alleging breach of Rule 20.7 of the rules of the Division do not constitute valid charges in that it is arguable that Rule 20.7 creates no clear duty the breach of which is necessarily punishable under Rule 27. I express no concluded view on this issue, but having regard to the above authorities I am not in a position to agree with the respondents that there is no serious issue to be tried. It may be that ultimately the submissions contained in the written submissions on this point filed by the respondents will prove persuasive, but, at this stage, I am by no means confident that they conclusively put the issue to rest.

I do not propose to deal with other aspects of the applicant’s case.  They are best left for the Court’s decision after the trial.  They may be further refined, developed or even perhaps not pursued in contentions of fact and law that may crystallise the issues.

Although not all the charges in respect of which there was a guilty finding were based on Rule 20.7, the Divisional Executive considered the question of penalty after finding Messrs Main and Gray guilty of various charges including those based on Rule 20.7.  There is a real issue to be determined as to the effect of the respondents making of a finding of guilt and assessing penalty in respect of charges not based on Rule 20.7.  This becomes even more significant when one considers the issue in the context of the respondents simultaneously or sequentially dealing with the question of penalty regarding charges that may be flawed.  This is an issue which deserves further consideration at the trial.

Having determined that the matter raises issues which reveal that the proceeding may have some substance the Court considers that injustice may arise as a result of the operation of the suspension of Messrs Main and Gray in the period pending the trial.  The operation of the suspension would mean that Messrs Main and Gray would not be able to further participate in the elections currently being conducted.  It is also probable that a final resolution of the proceeding may not occur until the suspension period has been served.

I reject the submission of counsel for the respondents that interim relief in the circumstances is tantamount to final relief.  It is an entirely different case from those which relate to the use of union resources during the period of a ballot.  In such circumstances an interim order usually disposes of the matter one way or the other due to the relatively short time involved in conducting a ballot.  If the respondents wish to support the validity of their collective action in suspending Messrs Main and Gray doubtless they ought not be discouraged from so doing simply because interim relief is granted.

I also reject the submissions of counsel for the respondents that the Court should decline to make any orders because of the failure of Messrs Main and Gray to exhaust their internal remedies.  It was submitted that those persons had the right to appeal against their suspension to Divisional Council under Rule 27.

Section 209(3) of the Act provides as follows:

“The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation.”

Neither Gary Main nor Richard Gray are the applicants in this proceeding.

The applicant had no right of appeal to Divisional Council. He was not suspended. Section 209(3) appears to have no bearing on this case, at least on the basis of submissions put thus far.

ORDERS

Section 209(4) of the Act provides as follows:

“At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.”

As Mason and Murphy JJ made clear in R v Joske and Others; Ex parte Shop Distributive and Allied Employees’ Association and Others (1976) 135 CLR 194, 213 the power to make such interim orders is not confined to the giving of directions for the performance and observance of the rules. The making of an interim order in this matter needs not therefore be conditioned upon or allied to a requirement to perform and observe the rules of the CEPU when the issue which is to be ultimately considered by the Court at the trial is whether in fact the respondents should be so required.

The orders I make are in the following terms:

1.Until the hearing and determination of the proceeding or further order, the respondents shall refrain from treating Gary Main and Richard Gray as having been suspended from membership of the CEPU, as a result of resolutions made by the respondents on 26 and 27 October 1995.

2.Liberty is reserved to any party to apply on 72 hours notice in writing to each other party.

DIRECTIONS

I will now consider the question of the directions the Court should make for the further conduct of the matter.

I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  15 November 1995

Counsel for the Applicant:  Mr Bruce Shaw

Solicitor for the Applicant:  J.N. Zigouras & Co

Counsel for the Respondents:  Mr Jim Nolan

Solicitor for the Respondents:  Jones Staff & Co

Dates of hearings:  13, 15 November 1995

Date of judgment:  15 November 1995