Durham, P.A. v Ide, D.

Re: PAUL ANTHONY DURHAM; LEIGH WILLIAM GRIFFITHS; JEFFREY PHILLIP BRAHIM;
NORMAN HARRY MURDOCH; PETER FRANCIS UNDERWOOD; DAVID GEORGE BYRNE; MARGARET
JOYCE LANE; NOELA ETHYL JOHNSON; MICHAEL RICHARD CLARK and HUBERT GEORGE WEBB
And: DENIS IDE; WALTER MALCOLM RUTHERFORD and THE NATIONAL UNION OF STORE
WORKERS, PACKERS, RUBBER AND ALLIED WORKERS
Nos. Q I3 and 4 of 1991
FED No. 256
Industrial Law
(1991) 37 IR 94

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - validity - performance and observance - interim orders - requisition for special general meeting to hear charges against officers and organisers - notice of branch meeting and notice of state registered union meeting - special meeting, at different place - whether rule under which charges laid valid - statutory protection of officers from removal - whether notice of meeting valid.

Industrial Relations Act 1988 ss. 3, 4, 195, 196, 208, 209.

HEARING

BRISBANE

#DATE 30:4:1991

Counsel for the applicants
Brahim and Ors.: Mr J. Murdoch

Solicitors for the applicants C.A. Sciacca and Associates Brahim and Ors.:

Counsel for the applicants
Durham and Ors.: Ms D. Linnane

Solicitors for the applicants Morris Fletcher and Cross
Durham and Ors.:

Counsel for the respondents
Ide and Rutherford: Mr D. Hall

Solicitors for the respondents
Ide and Rutherford: Poteri Woods and Co.

Counsel for the respondent Union: Ms Booth

Solicitors for the respondent Union: Peter Channell and Associates.

JUDGE1

Yesterday afternoon, two applications were made for rules to show cause and for interim orders. Pincus J. referred those applications to me in their entirety, and they were heard today as a matter of urgency. The proposed respondents were given notice of the proceedings. The question of urgency is of particular importance in relation to the interim orders, because, unless some order is made, certain events are to occur this coming Thursday evening, which may have a substantial effect on the rights of the persons concerned.

The applications are made pursuant to ss. 208 and 209 of the Industrial Relations Act 1988 ("the Act"). The National Union of Store Workers, Packers, Rubber and Allied Workers, which I shall call "the Union", is an organisation, registered pursuant to the Act. It has a Queensland branch, which I shall call "the branch".
What I shall call the first application was made by the assistant secretary of the branch and seven members of the branch committee of management. All of those persons were elected for four year terms from 1st October 1990. Mr Murdoch of counsel appeared for those applicants. What I shall call the second application was made by three elected organizers, whose evidence is that they were elected in August of 1990; Ms Linnane of counsel appeared on behalf of those applicants.
In each application the proposed respondents are Dennis Ide, the branch president, Walter Malcolm Rutherford, the branch secretary, and the Union itself. Mr Ide and Mr Rutherford were also elected for four year terms from 1st October 1990. Mr Hall of counsel appeared for them. Ms Booth appeared for the Union, which is concerned with the integrity of its rules; she did not make any submissions in relation to either the grant of the rule to show cause, or the interim orders.
Prior to 23rd April 1991, the three applicants for whom Ms Linnane appears laid charges against Mr Rutherford under the rules. The charges included misappropriation of the funds of the Union, gross neglect of duty, and gross misbehaviour. They were particularized in some detail and accompanied by documentary evidence.
On 22nd April 1991, Mr Ide as branch president received what he has described as a requisition, signed by ninety-six members of the Union, requesting that he convene a special meeting to hear charges against the applicants. The requisition is not in evidence. The charges against the applicants refer to rule 19 and are framed in terms that each person charged is guilty of "conduct calculated to injure the branch".
The charges against the three applicants for whom Ms Linnane appears relate to presentation of charges against Mr Rutherford, allegedly in the knowledge that those charges were false, frivolous and trivial, and were presented only to prevent Mr Rutherford from carrying out his duties.
The charges against the applicants for whom Mr Murdoch appears relate to supporting allegedly improperly put motions, that the branch committee of management meeting on 11th April note charges against Mr Rutherford, and directing Mr Rutherford to take leave until those charges were determined, when the person charged knew or ought to have known that the charges were false, frivolous, and trivial, and brought only to prevent Mr Rutherford from carrying out his duties.
On receiving the requisition, Mr Ide booked a room for a meeting at the Waterside Workers' Club at 471 Adelaide Street, Brisbane, and caused notice to be sent to all of the applicants of the charges and of the requisition. Some of the applicants received the notice on 23rd April. The premises chosen by Mr Ide are those where the branch formerly held general meetings. Indeed, those premises are fixed by rule 48(2)(e) of the rules of the Union as the head or registered office of the branch, unless otherwise determined by the national conference of the Union. Rule 48(1)(i) requires all branch meetings to be held at the head or registered office, or at such other place as the branch, with the approval of the committee of management, may appoint. The Union owns its own premises at 17 Cribb Street, Milton. The branch office has been located there since July 1988. There is no evidence as to whether the national conference has determined under rule 48(2) that those premises are to be the head or registered office of the branch, but perhaps it is appropriate to apply the presumption that things have been done regularly. It has been the practice since July 1988 to hold general meetings at those Union premises. Mr Ide chose the Waterside Workers' Club, as he said, because he has been granted only restricted access to the Cribb Street premises since the charges against Mr Rutherford arose.
On 23rd April, a meeting of the branch committee of management was held. Early in the meeting, Mr Ide informed it of the requisition and of the date and place of the proposed meeting to hear charges against the applicants. He did not give any of the applicants a copy of the requisition, or allow them to look at it, and has since refused requests for a copy.
Later in its meeting, the branch committee of management heard a report from the assistant secretary, as acting secretary, on the venue for general meetings. The report dealt with the cost of hiring seating and the inadequacy of the Union's premises for general meetings. It was indicated that a meeting room at the Trades and Labour Council could be hired for a substantially reduced cost. After discussion, the assistant secretary moved that all future meetings of the membership be held at the Trades and Labor Council building at 16 Peel Street, South Brisbane. The motion was seconded and carried unanimously.
Rule 9 of the branch rules provides for a general meeting on the first Thursday of each month at the Trades Hall in Turbot Street, Brisbane. It is common ground that the Trades Hall is no longer situated at that address. Following the resolution of the branch committee of management, the assistant secretary booked the premises at the Trades Hall in Peel Street for a meeting at 8.00 p.m. on 2nd May 1991, that being the first Thursday of the month. On 24th April he sent out a circular to all delegates in accordance with the usual practice in the branch, advising of that meeting.
On 25th April, two advertisements appeared in the Courier-Mail newspaper. The first one advertised a special requisitioned general meeting of members of the branch at 8.00 p.m. on Thursday 2nd May, at the 471 Adelaide Street premises. The second was an advertisement for a general meeting, at 7.00 p.m. at the same place on the same day. It was described as the May general meeting of members of the Federated Storemen and Packers Union of Employees of Australia, Queensland Branch. That is a body registered under Queensland law, and described in his affidavit by the assistant secretary as the state registered arm of the branch. On the evidence currently, that body does not have a separate membership roll or its own officials. Its affairs have been conducted by officers elected under the rules of the Federated Storemen and Packers Union of Australia, which is now the Union, since it entered into an amalgamation. There is also evidence of advertisements by circulars, addressed to the members, of the two meetings fixed for 7.00 p.m. and 8.00 p.m. respectively at 471 Adelaide Street on 2nd May. It is significant to note that the advertisement for the 8.00 p.m. meeting, and the circulars relating to that, refer to the fact that there will be a no confidence motion against certain officials and members of the branch committee of management.
It is necessary to look at some of the provisions of the rules of the Union and the separate rules of the branch. Rule 39(a) of the rules of the Union expressly empowers branches to make and amend rules, by-laws, and regulations for the government of the branch. It provides that such rules, by-laws, and regulations shall not conflict with the rules of the union. Under rule 39(b), if any such rules, by-laws or regulations are inconsistent with the rules of the union, the latter shall prevail and the former to the extent of the inconsistency shall be invalid.
As a result of the amalgamation to which I have referred, rule 64 found its way into the rules of the Union. It contains transitional provisions, concerning the amalgamated Union. Sub-rule (15) of that rule preserves the rules of the branches of the Federated Storemen and Packers Union, and the Federated Rubber and Allied Workers Union, as the rules of the various branches, save to the extent that they are inconsistent with the rules of the Union. Sub-rule (15)(iii) contains a specific preservation of the rules of the Federated Storemen and Packers Union branch in Queensland as the rules of the branch.
Under rule 40A(3) of the rules of the Union, a branch committee of management shall have the power to govern the branch and transact the business of the branch in accordance with the rules of the union and any branch rules not inconsistent therewith. Rule 42(a) deals with the removal from office of any officer by a branch committee of management at a meeting to which the person concerned has been summoned. That rule contains a proviso, which is designed to be in conformity with s. 195(1)(c) of the Act, or the corresponding provision in the now-repealed Conciliation and Arbitration Act 1904. Thus, the rule provides that no such person shall be removed from office unless he has been found guilty of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, or gross misbehaviour or gross neglect of duty, or has ceased according to the rules to be eligible to hold office. Rule 42 contains further provisions as to the procedures under which a person so charged is to be dealt with, and as to the right of appeal to the national executive committee.
When one turns to the branch rules, it is apparent that they are very out-dated. In some places, they refer to amounts of money, and the references ante-date the introduction of decimal currency in Australia. Those rules also make provisions which are different from the rules of the Union as to things like the composition of a branch committee of management, and even as to its naming. The branch rules are also somewhat obscure. Rule 9 contains provisions concerning sections of the branch, and meetings of those sections. Those provisions are interspersed with provisions concerning general meetings and, in particular, with provisions about the requisitioning of special general meetings. I have already referred to the provision that a general meeting shall be held on the first Thursday in each month at the Trades Hall, Turbot Street, Brisbane. It seems clear from the balance of the rule that it is open to members who wish to do so to requisition for a special general meeting. There is a provision that any member who signs such a requisition and fails to attend shall be fined the sum of ten shillings. There is a provision for a quorum of thirty at a special general meeting. There is a provision that a requisition for a special general meeting must be signed by not less than thirty members. There is also a provision for a prescribed form for such a requisition, and the form is to contain notice of the penalty for non-attendance of the signatories. There is also an interesting proviso that the executive committee shall have the right to determine whether the business requisitioned is of sufficient importance to warrant calling a special meeting to deal with such matter.
Of some interest to the applicants for whom Ms Linnane appears is rule 16 of the branch rules, which deals with the duties of organizers. That contains a provision in the following terms:

"In the event of any misconduct or gross neglect of duties by any organizer, the executive shall have the power to appoint a member, pro tem, in his or her place until the charge has been dealt with by a special summoned meeting".

The reference in the notices of meeting put out by Mr Ide to a motion of no confidence in certain persons seems to involve a reference to branch rule 19. It is appropriate that I should set out that rule in its entirety:

"REMOVAL OF EXECUTIVE COMMITTEE OR ANY OTHER BODY OR COMMITTEE

Should members of the branch lose confidence in the executive committee or any members thereof, or any other body or committee, or any officer, trustee, delegate, or shop steward, thirty financial members of the union may request the president or secretary, in writing such request to be on prescribed form setting out the charge and reason for which confidence is lost in the bodies or persons hereinbefore mentioned, and also signatories to such requisition and charge

(sic.) to call a special general meeting for the purpose of considering the charge against whom such is being made. Any person or persons so charged shall be given an opportunity of being heard in defence at such meeting. He shall be advised of the charge at least seven clear days before such meeting is to take place. It shall be competent for a majority of members present to carry a vote of no confidence in any person or persons so charged in which case such person or persons shall vacate office immediately. Provided that such decision shall be submitted to a ballot of members for endorsement or otherwise. Any vacancy so occurring shall be filled in accordance with rule 22."

The reference in the charges laid against the applicants to "conduct calculated to injure the branch" seems to have arisen from rule 32(a), which provides that any members charged with fraudulent, dishonest, disgraceful, or other conduct calculated to injure the branch or Union, or to bring it into discredit, may be summoned to appear before the executive committee of his branch who, if dissatisfied with his explanation, may expel him or suspend him for a certain time, or inflict such penalty as may seem to meet the merits of the case. There is provision for a maximum penalty of five pounds.

On the material which the respective applicants have brought forward, it was conceded by Mr Hall that it was appropriate to grant a rule to show cause upon each application. The form in which the rules to show cause are sought seems to me to be somewhat inappropriate; at the conclusion of giving my reasons, I shall pronounce an order in terms which I regard as more appropriate for the occasion.
The more pressing matter, however, is the necessity to deal with the applications for interim orders. It seems to me to be reasonably clear that branch rule 19 will be held to be in contravention of s. 196(a) of the Act, by making a provision contrary to s. 195(1)(c), at least in relation to the applicants for whom Mr Murdoch appears. Section 195(1)(c) provides that the rules of an organisation may provide for the removal from office of a person elected to an office in an organisation only where the person has been found guilty, under the rules of the organisation, of misappropriation of the funds of the organisation, substantial breach of the rules of the organisation, gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the organisation to be eligible to hold the office. It is not disputed that the assistant secretary and the seven members of the branch committee of management for whom Mr Murdoch appears fall within paragraphs (a) and (b) of the definition of "office" in s. 4(1) of the Act. With respect to the three applicants for whom Ms Linnane appears, the definition of office seems to be inappropriate. Although those persons are elected as organisers, they do not appear to have the protection of s. 195(1)(c). The question then arises whether those persons fall within the provisions of branch rule 19 at all. In my view, there is a strong case for the proposition that they do fall within the phrase "or any officer" in that rule. It would be strange if such a rule, which was apparently drawn before the predecessor of s.195(1)(c), and which appears to be cast in terms broad enough to enable a motion of no confidence to be moved in respect of anybody holding any position in the branch, were to be construed as excluding organisers under rule 16. Some attempt was made by Ms Linnane to argue that rule 16 constitutes a code in respect of organisers and that they could only be dealt with under rule 32. It seems to me that the terms of rule 16 and rule 19 are more likely to be regarded as complementary of each other, and that the reference in the last sentence of rule 16 to dealing with the charge by a special summoned meeting could well be a reference to the process under rule 19.
Mr Hall attempted to argue that rule 19 was not a provision which infringed section 195(1)(c) at all. He characterized rule 19 as a right of recall provision, on the basis that it was a provision for removal by a ballot of all members, a prerequisite of which was a meeting at which a vote of no confidence has been passed. As presently advised, I have great difficulty in understanding the distinction between a removal from office and a recall. I think it highly likely that, at a trial of the proceedings, it would be held that rule 19 was in contravention of the provisions to which I have referred, for the reasons which I have stated.
The applicants also seek to challenge rule 19 under s. 196(c) of the Act, on the basis that it imposes on members of the Union conditions, obligations or restrictions that, having regard to the objects of the Act, are oppressive, unreasonable or unjust. They refer in particular to the object found in s. 3(g) of the Act, which is "to encourage the democratic control of organisations and the participation by the members in the affairs of organisations". Their argument is that elected officers can be removed under rule 19 by a small and unrepresentative group of members, able to get to a general meeting in Brisbane. There is some evidence of the spread of members throughout the state of Queensland.

The applicants also argue that branch rule 19 impliedly imports the principles of natural justice. They say that their inability to obtain a copy or copies of the requisition containing the charges against them is a denial of natural justice. It is certainly arguable that they need to know the form of the charges in the requisition and whether the requisition was properly made by at least thirty financial members.
On these bases I would certainly be prepared to grant a rule to show cause. Much of the argument in relation to interim orders has turned, not surprisingly, upon the likely occurrence under present arrangements of two conflicting general meetings at eight o'clock on Thursday, 2nd May. On the one hand, it is true that the branch committee of management, when it passed its resolution fixing the Trades and Labour Council in Peel Street as the appropriate venue for all general meetings, had been told by the president that he had made arrangements for the conduct of a general meeting at 471 Adelaide Street, on the night of the next scheduled general meeting. It perhaps might have been easier for members concerned if the branch committee of management had exercised whatever power it has to fix the general meeting for the same venue which had already been chosen by the president. On the other hand, even if that had been done, there would be two meetings, and the two meetings would be in conflict. Mr Hall suggested that the president might open both meetings and seek directions as to which should take place first. Such a course would only be productive of confusion. There is further difficulty from the point of view of the applicants for whom Ms Linnane appears, in the fact that they played no role at all in the choice of the venue for the meeting fixed by the branch committee of management, and they are truly faced with a conflict of two meetings in different places at the same time on the same evening.
Criticism has also been made of the adequacy of the notices of meeting. The advertisement in the Courier-Mail, and the circulars concerning the 8.00 p.m. meeting at 471 Adelaide Street, refer in somewhat vague terms to a motion of no confidence in certain officials and branch committee of management members. That, it seems to me, is inadequate to notify members as to precisely what will be the business of the special meeting. Mr Hall has made reference in his submissions to the power which the Court possesses under s. 209(4), to make orders intended to further the resolution within the organisation concerned of the matter the subject of the application. He describes the "matter" as the no confidence motion. He also refers to s.209(3) and desires to argue that the applicants have not taken all reasonable steps to try to have that matter resolved within the organisation. I am conscious of those provisions and it is for that reason that I propose to take different courses in relation to interim orders in respect of the two different applications.
In the case of the first application, it seems to me that the argument that the applicants cannot be dealt with under rule 19 is sufficiently strong to require me to restrain the respondents from so dealing with them until the hearing and determination of this proceeding or further order. In relation to the second application, as I have said, the argument does not have nearly the same strength, and the difficulties of natural justice and confusion as to two meetings can be overcome by suitable directions, which I propose to make.
Before I do that, I should deal briefly with the other meeting, the 7.00 p.m. meeting, which has been advertised for 471 Adelaide Street. It has been said that it is advertised as a meeting of a state registered union but that the state registered union really has no independent existence. Such a proposition certainly justifies the making of a rule to show cause in relation to that meeting. I am of the view, however, that I should not make any order attempting to stop that meeting from proceeding; rather, I should simply direct that the president inform that meeting clearly that it is not a meeting of the branch.
I have asked my associate to contact the registry with respect to a possible return date for the rules to show cause. The date that he has been given is Thursday, 9th May, at 9.30 a.m. Unless anybody has any profound objection to that, I propose to make the rule to show cause returnable for directions on that day at that time.
The order that I propose to make is as follows:

That the respondents appear before the Federal Court of Australia at Brisbane on Thursday, 9th May 1991, at 9.30 a.m., to show cause why the following orders should not be granted upon the grounds set forth (the order as entered will contain a reference to the particular affidavit, or affidavits, depending on the particular application):

(1) That the respondents Dennis Ide and Walter Malcolm Rutherford perform and observe the rules of the National Union of Store Workers, Packers, Rubber and Allied Workers, by treating as null and void:

(a) all notices of a general meeting to be held under the name of the Federated Storemen and Packers Union of Employees of Australia (Queensland Branch) to be held at 7.00 p.m. on Thursday, 2nd May 1991 at the Waterside Workers' Club, 471 Adelaide Street, Brisbane;

(b) all notices of a general meeting of the Queensland branch of the National Union of Store Workers, Packers, Rubber and Allied Workers to be held at 8.00 p.m. on Thursday, 2nd May 1991 at the Waterside Workers' Club, 471 Adelaide Street, Brisbane;

(2) an order declaring that branch rule 19 of the rules of the Queensland branch of the National Union of Store Workers, Packers, Rubber and Allied Workers contravenes s. 196(a) and (c) of the Industrial Relations Act 1988.

The interim orders that I propose in the first application are as follows:

(1) Until the hearing and determination of this proceeding or further order, the respondents Dennis Ide and Walter Malcolm Rutherford, by themselves, their servants and agents, take no step to deal with, or to have dealt with by any general meeting of members of the Queensland Branch of the National Union of Store Workers, Packers, Rubber and Allied Workers, any charges laid on or about 22nd April 1991 against the applicants Jeffrey Phillip Brahim, Norman Harry Murdoch, Peter Francis Underwood, David George Byrne, Margaret Joyce Lane, Noela Ethyl Johnson, Michael Richard Clark and Hubert George Webb;

(2) The respondent Dennis Ide, immediately after opening any meeting occurring at or about 7.00 p.m. on Thursday, 2nd May 1991, clearly inform those present that it is not a meeting of the Queensland Branch of the National Union of Store Workers, Packers, Rubber and Allied Workers.

In the second application, the interim orders that I propose are as follows:

(1) Until the hearing and determination of this proceeding or further order, the respondents Dennis Ide and Walter Malcolm Rutherford, by themselves, their servants and agents, take no step to deal with, or to have dealt with by any general meeting of members of the Queensland Branch of the National Union of Store Workers, Packers, Rubber and Allied Workers, any charges laid on or about 22nd April 1991 against the applicants Paul Anthony Durham, Leigh William Griffiths and Keith Gordon Thompson, unless:

(a) further notice of a general meeting is given to members by means of an advertisement in the Courier-Mail newspaper, specifying the date, time and place of a general meeting, not less than seven days after the date on which the advertisement is published, the names of the persons against whom charges are to be heard at that meeting and the full text of the charges against those persons;

(b) not less than seven days before such general meeting the applicants are permitted to inspect and to make copies of the requisition on which the charges are based;

(c) the general meeting is held at the Trades and Labour Council, 16 Peel Street, South Brisbane at 8.00 p.m. on an evening other than the first Thursday of a month, or Thursday 9th May 1991.

Paragraph two of the interim order, which I propose to make in the second application, is in the same terms as paragraph two of the interim order in the first application.
I should, perhaps, add to my reasons some explanation as to why I have chosen as the place of the general meeting the Trades and Labour Council. I have done that because it is the only venue to which no objection appears on the material. The branch committee of management has chosen not to hold general meetings at the Cribb Street premises, because of expense and difficulties due to air conditioning and lighting. Even if there is some doubt as to the ability of the branch committee of management to choose the Trades and Labour Council as a venue for branch general meetings, without a general meeting itself making that choice, there seems to be no doubt that the power of the Court to make interim orders does extend to choosing the location of a meeting. The affidavit of Mr Brahim contains an objection to the holding of general meetings at the Waterside Workers' Club, namely that liquor can be purchased on the premises, and it is possible that persons who consume it might become disruptive of a meeting.
The reason why I have excluded the first Thursday of a month is obvious; the interim order is designed so that any meeting held to deal with the charges against the applicants in the second application will not conflict with the ordinary general meeting of the branch. The reason I have chosen to exclude Thursday 9th May is that it is the night on which the material discloses that the branch committee of management is to deal with the charges against Mr Rutherford; it would be undesirable that there should be two meetings at which persons might be required to be present on the one night.
For those reasons, I now pronounce the orders as I have indicated.

[1991] FCA 256

30 APRIL 1991