Dodd v Johnston

[1999] FCA 1354

FEDERAL COURT OF AUSTRALIA

Dodd v Johnston [1999] FCA 1354

INDUSTRIAL LAW – Interlocutory relief sought by applicant to restrain respondents hearing and determining charges against him – whether new rule afforded retrospective operation – whether presumption against retrospective operation applies – whether charging process commenced under old rule can survive repeal of that rule.

Acts Interpretation Act 1901 (Cth) s8(c)

Dodd v Johnston [1999] FCA 496, referred to

Walker v McLeod (1984) 7 IR 94, distinguished

Nicol v Crest International Hotel (Brisbane) Pty Ltd (1983) 6 IR 75, applied

Gerrard v Mayne NicklessLtd (1996) 135 ALR 494, applied

STEPHEN WILLIAM JAMES DODD v C JOHNSTON AND OTHERS

VG 643 OF 1998

MARSHALL J
MELBOURNE
9 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 643 OF 1998

BETWEEN:	STEPHEN WILLIAM JAMES DODD Applicant
AND:	C JOHNSTON & OTHERS Respondents
JUDGE:	MARSHALL J
DATE OF ORDER:	9 SEPTEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The order of the Court dated 15 March 1999 prohibiting the further hearing and determination by State Council of charges laid against Mr Dodd by Mr Johnston be discharged.

2.The directions hearing be adjourned to 10.15 am on 4 October 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 643 OF 1998

BETWEEN:	STEPHEN WILLIAM JAMES DODD Applicant
AND:	C JOHNSTON & OTHERS Respondents

JUDGE:	MARSHALL J
DATE:	9 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 15 March 1999 the Court granted the applicant, Mr Dodd, interlocutory relief by ordering that the respondents refrain from hearing and determining certain charges brought by the first respondent, Mr Johnston, against Mr Dodd.  The charges were intended to be heard and determined by the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, (“the Union”) in Melbourne on 17 March 1999. 

2. The injunction was temporary and was to last until 4.30 pm on 29 March 1999 or further order.  Successive consent orders have subsequently been made which have had the effect of extending the injunction's operation until 4 pm on 6 September 1999. On 6 September 1999 the Court heard an application by Mr Dodd to extend the injunction until the determination of the trial.  Mr White, of counsel, appeared for Mr Dodd in support of such an order.  Mr Bromberg, of counsel, appeared for most of the respondent members of State Council to oppose the continuation of interlocutory relief. 

3. On 6 September 1999 the Court reserved its judgment and formally made an order continuing the injunction. It was well understood by all concerned that no special State Council meeting would be convened to hear and determine the charges laid against Mr Dodd until and unless the Court determined the issue debated by counsel on 6 September 1999 adversely to Mr Dodd's interests.

   Background

4. These reasons for judgment should be read together with the Court's reasons for judgment given on 15 March 1999 when it granted interlocutory relief to Mr Dodd.  Those reasons set out the background to the proceeding. See Dodd v Johnston [1999] FCA 496.

5. Given the conclusions of the Court in its reasons for judgment delivered on 15 March 1999 counsel agreed that the application for extension of interlocutory relief should only be granted if the Court was of the view that the changes to the rules of the Union, which were certified on 2 March 1999, had the effect that the steps which were taken under the former rules to charge Mr Dodd and hear such charges were void. Counsel also agreed that that issue should be determined finally.  The effect of a final determination of that issue in this interlocutory proceeding is as follows:

   If the Court determines the issue in Mr Dodd's favour the amended rule to show cause must be made absolute.

   If the Court determines the issue adversely to Mr Dodd the interlocutory injunction will be discharged and a further directions hearing will be required to consider how the Court should finally determine other issues in the proceeding which were the subject of its 15 March 1999 judgment.

   The competing contentions

6. Mr White submitted that the charges Mr Johnston laid against Mr Dodd should be heard and determined in accordance with the procedure provided by the new rule 13 of the Union's rules which replaced the old rule 11 on or about 2 March 1999. 

7. Mr White relied on the judgment of Beaumont J in Walker v McLeod (1984) 7 IR 94. Walker is referred to in the Court's reasons for judgment, delivered 15 March 1999, as the basis for its decision to grant interlocutory relief pending further submissions on the relevance of that judgment to this proceeding.

8. In Walker, Mr Wenham, a member of the relevant organisation, had given notice of his intention to move a resolution calling for Ms Walker's dismissal as branch secretary.  That notice was given on 9 January 1984 and advised that the resolution would be moved at a branch meeting to be held on 24 February 1984.  Between the giving of notice and the occurrence of the meeting changes were made to the rules of the organisation that affected the manner in which charges would be laid, heard and determined against officials of the organisation.  Ultimately Beaumont J did not determine whether the old or new rules applied as the mere giving of notice of an intention to move a motion did not mean that the disciplinary process provided by the old rules had commenced.

9. Mr White submitted that in respect of Mr Dodd:

   “All that is currently on foot are charges laid against him, which may or may not be proceeded with, in much the same way, your Honour, as in Walker v McLeod. Mr Wenham was under no obligation to proceed and, in effect, all that had happened was that charges had been laid and the relevant notices of intention to move resolutions had been given.”

10. It was submitted by Mr White that new rule 13 is exhaustive in its operation.  He also submitted that it is “procedural rather than substantive in nature”.

11. Mr White conceded that the well recognised principles concerning the presumption against retrospective operation of statutes apply equally to rules of registered organisations but said that the issue does not arise here because the new rule operates prospectively upon a past event.  Mr White further submitted that the new rule does not affect, create or diminish any substantive rights but, rather, provides a procedure by which those rights are determined.

12. It was submitted by Mr Bromberg that there was an extant proceeding before the State Council of the Union which the State Council had agreed to reopen to allow Mr Dodd to put further submissions in respect of charges laid in October 1998.

13. Mr Bromberg said that the new rule puts in place a new machinery or procedure for the laying of charges but, more importantly, gives National Council a new power to stop a charge being heard.  He described this power as a "veto power" which is "a substantive difference of some importance" when compared to the old rule.

14. Ultimately Mr Bromberg contended that the question is whether the framers of the new rule intended that it apply to unfinished matters under the old rule.  He submitted that the new rule should not retrospectively apply to a proceeding that had commenced under the old rule unless the language of the new rule expressly or by necessary implication required such a construction.  Mr Bromberg conceded that the presumption against retrospective operation was also rebuttable if it produced clear injustice or its effects were harsh.

15. Mr Bromberg submitted that the new rule contained no clear words which indicated that it was intended to operate retrospectively and that there was no injustice in allowing Mr Dodd to be dealt with under the old rule.  Further, Mr Bromberg contended that Walker was distinguishable given that on the facts in that case no business had commenced under the old rule as distinct from the announcement of an intention for it to commence. Here, by contrast, Mr Dodd had actually been charged and the charges are in the process of being determined.

16. It was disputed by Mr Bromberg that the changes effected by the new rule were merely procedural and hence indicative that the presumption against retrospectivity was not intended to apply.  He said on the contrary that the unfettered right of a State Council to deal with a matter before it had been removed and was now subject to a National Council veto.

17. Mr Bromberg further contended that the prosecutor, Mr Johnston, had an accrued right to enable him to rely on the presumption against retrospectivity.  That accrued right was the right to have the charges dealt with before the State Council, unhindered by any possible veto from National Council.  It was said that Mr Johnston had something in the nature of a cause of action which had arisen before the repeal of the old rule 11 which would render it manifestly unjust for the new rule 13 to apply.

18. In reply Mr White submitted that the reopening before the State Council would involve a complete rehearing of the charges given that the State Council's resolution to reopen the hearing of the charges involved an implied recission of its previous resolution to find Mr Dodd guilty.

19. In rejoinder Mr Bromberg contended that a reopening of the charges against Mr Dodd before State Council would not necessarily mean a complete rehearing of those charges but that such reopening is also consistent with allowing Mr Dodd to put additional material before the State Council.  Mr Bromberg further submitted that the effect of rule 36(8) of the rules may prohibit further charges being laid against Mr Dodd under the new rules. 

20. Mr Bromberg also contended that if the National Council, pursuant to the new rule, comes to the view that the charge cannot be fairly dealt with by State Council the matter does not go any further and is not then dealt with by the National Council. In a reply to the rejoinder, Mr White put Mr Bromberg’s last submission in issue and contended that the National Council was empowered to investigate any suspected or alleged breach of the rules under the combined operation of rules 13 and 36.

    Consideration

21. The essential question for current determination is whether the charging process that commenced under the old rule 11, in respect of Mr Dodd, can survive the repeal of that rule. The correct analysis, consistently with s8(c) of the Acts Interpretation Act 1901 (Cth), is that unless the contrary intention appears from the new rule, no right or privilege acquired under the old rule is affected and the process begun under the old rule may be continued as if the old rule had not been repealed.

22. There is nothing on the face of the new rule 13 which shows that any charging process which had begun under the old rule 11 but which is incomplete must now be dealt with afresh under the new rule 13.

23. The next question is whether it can be said that the prosecutor, Mr Johnston, acquired a right under the old rule 11.  The answer to that question is that Mr Johnston invoked a charging process then available to him and thereby acquired a right to have the charges he laid heard and determined in accordance with the provisions of the old rule 11. 

24. In truth no real issue of retrospectivity arises.  The new rule 13 has no retrospective operation.  As Mr White submitted, it operates prospectively upon past events, including those occurring prior to its certification. But its very certification cannot mean, without more, that any proceedings already instituted under the old rule 11 which were incomplete upon the repeal of that rule simply come to a sudden end.

25. Walker is of no assistance in the resolution of the issue before the Court, as the business in question in that case did not commence until after the new rule was certified.  Beaumont J there asked whether the old process would have continued beyond certification of the new rule if it had truly commenced but did not find it necessary to provide an answer.

26. I reject Mr White's submission that all that is on foot are charges against Mr Dodd which may not be proceeded with, as in Walker.  In Walker no charges had been laid prior to the certification of the new rule. Here, charges had been laid and a hearing had occurred prior to the certification of the new rule. Further, to say that the new rule 13 is exhaustive in its operation is to deny the relevance of the principle of statutory interpretation contained in s8(c) of the Acts Interpretation Act 1901 (Cth) to the construction of rules of organisations. Relevant principles of statutory interpretation have long guided the Court and its predecessors in the construction of organisations’ rules. See for example Nicol v Crest Intenational Hotel (Brisbane) Pty Ltd (1983) 6 IR 75 at 77.

27. It is also beside the point whether the new rule affects any substantive rights as distinct from procedural rights because it is not truly retrospective. The essential question is whether the prosecutor's right to charge Mr Dodd and have those charges dealt with to finality under old rule 11 is a right of the kind recognised by s8(c) of the Acts Interpretation Act 1901 (Cth). The Court considers that it is such a right. It was a right of a member of the organisation to have charges of the kind proffered against Mr Dodd dealt with as at October/November 1998 by the State Council. There was no contrary intention provided by the new rule 13 to indicate that the right was extinguished upon the certification of that rule.

28. It is not necessary, therefore, to determine whether the changes effected by the new rule 13 are substantive or procedural.  Essentially it does not matter.  It is only necessary to consider such a question in determining whether the presumption against retrospectivity applies or is rebutted.

29. It is also not necessary to consider other issues raised by Mr Bromberg including the consequences for the hearing and determination of the charges which result from the State Council deciding to reopen the charges against Mr Dodd despite previously having found him guilty of those charges.

    Conclusion

30. Accordingly the Court is of the view that the certification of the new rule 13 did not prevent the hearing and determination of incomplete business which had commenced pursuant to the old rule 11 in accordance with that rule.

31. Such an approach is consistent with the judgment of a Full Court of the Industrial Relations Court of Australia in Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 where it was held that proceedings which had commenced in the Australian Industrial Relations Commission under repealed legislation were capable of being continued to finality notwithstanding that repeal. The Full Court said (at 512-513):

    “As it seems to us, once the various owner-drivers had made application to the Commission, they acquired a right to have their applications heard and determined.”

32. Similarly here, once Mr Johnston laid charges under the old rule 11 he acquired a right to have those charges heard and determined by the State Council.  It would be unjust to put Mr Johnston to the trouble of abandoning those charges and/or presenting them again to the Federal Council.  He would run the risk, on the latter course, of a member of the organisation seeking to challenge that process in reliance upon the provisions of rule 36(8) of the current rules which prohibit a member being charged twice for the same alleged breach of the rules.

33. Consequently the Court finds, having regard to the Court's final determination of what has been described by counsel as the "old rule versus new rule issue" and having regard to the judgment delivered on 15 March 1999, that there is no basis upon which the interlocutory relief granted on 15 March 1999 should continue.

    Orders

    The Court makes the following orders:

    1.The order of the Court of 15 March 1999 prohibiting the further hearing and determination by State Council of charges laid against Mr Dodd by Mr Johnston be discharged.

    2.The directions hearing be adjourned to 10.15 am on 4 October 1999.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             9 September 1999

Counsel for the Applicant:	Mr E White
Solicitor for the Applicant:	Gill Kane & Brophy
Counsel for the Respondent:	Mr M Bromberg
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	6 September 1999
Date of Judgment:	9 September 1999