Edwards, J. v Popham, C.

[1987] FCA 357

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT

OF AUSTRALIA )

)

VICTORIAN DISTRICT REGISTRY	)	NO. V 24 of 1987
)
INDUSTRIAL DIVISION	)

B E T W E E N :

JOHN EDWARDS

A N D :

CAROLE POPHAM h ORS.

KEELY J. 1987 3 JULY,

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

REASONS FOR JUDGMENT

In this matter, John Edwards is the Victorian branch

councillor of the Commonwealth Sclentific and Industrial

Research Organisation, Technical Association ( he

Association) which is an organisation of employees registered

under the Conciliation and Arbitration Act 1904 (the Act).

He has sought a rule to show cause why an order should not be

made that the respondents and each of them perform and

observe the rules of the Association by recognising and

treating him as holding the office of Victorian branch

councillor of the Association and thereby being entitled to

attend or to appoint a proxy to attend and to fully

participate in and to vote at the Council meeting of the office until the declaration by the Returning Officer of the

result of the election of a successor to that office of

Victorian branch councillor in 1987.

The applicant was represented by Mr. Howells of

counsel. Five of the respondents were represented by Mr.

Macken, solicitor. They, and the offices held by them, were:

Carole Popham, General Secretary; ROSS Rebgetz, President;

Phillip Harrip, Vice-President; Donald Berrie, General

Treasurer; and Eric Partick, Assistant General Secretary.

There was no material before the court as to what office, if

any, was held by Toni Hlnton. As to the other respondents,

from what has been said from the bar table this afternoon, it

appears, and I act upon it for the present interlocutory

hearing, that they are all members of the Federal Council of

the Association.

Having heard Mr. Howells and Mr. Macken, I have come established by the applicant, and accordingly have decided to grant the rule to show cause, except as to Toni Hinton. That to the conclusion that a prima facie case has been

rule to show cause will be returnable in Melbourne at 10.15

a.m. on Tuesday, 14 July 1987. The parties have liberty to

apply, through my associate, to have that date altered lf circumstances arise which are clalmed to warrant such a course.

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The applicant also sought, under S. 141(2) of the Act,

an interim order that, until the hearing and determination of the rule to show cause, the respondents recognise and treat Mr. Edwards as holding the office of Victorian branch

councillor. Ms. Popham, General Secretary of the

Association, on behalf of the Council Executive of the Association, had written to the appllcant on 26 June 1987 informing him that at the Federal Council meeting to be held on 4 and 5 July 1987:

"it would be anticipated that as no formal Councillor is in office, the [applicant as an] observer would be accorded full participation ability with the exception of holding any voting right".

Mr. Macken submitted that the court should not make the interim order sought and in doing so he relied partly upon the offer of observer status made to the applicant in that letter of 26 June 1987. On behalf of his clients, he submitted that that offer could be supplemented by a provision for the recording of a statement by the applicant at the Council meeting as to the way in which he would have voted on whatever motions are considered by the Federal Council at that meeting.

Hr. Hacken also relied upon the general structure of the rules and pointed particularly to rule 12, which includes the following provision:

"12. Decisions on motions between meetings

of Council.

Any member of the Council (but not their proxy) or any Branch Committee may at any time submit motions for decision by Council in the following manner:

(a) The member of Council or the Secretary of the Branch concerned shall forward a copy of the proposal to the General Secretary. The proposal shall be properly set out as a motion and shall be accompanied by a statement setting

out the reasons therefor.

The proposal shall require a seconder and the proposer shall be required to

ensure that the seconder p ovides

written evidence to the General

Secretary of their agreement to the motion being proceeded with."

He submitted that the interim order sought should not be made

because that rule would enable the Council to take any

necessary remedial action if the court found that the

applicant had been wrongly deprived of a vote.

In my opinion, the factors relevant to the court's discretion as to whether to make the interim order sought, are fairly finely balanced in this case. I have not overlooked Mr. Hacken's submission as to laches by the applicant. Certainly it is a pity that the making of the application to the court was left to such a late stage.

However, I have concluded that in exerclsing the court's discretion it is proper to have regard not only to

the interests of the applicant and the respondents but also

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to the interests of the members of the Assoclation in

general, including the members'of its Victorian branch, who apparently constitute approximately 30 per cent of the total membership of the Association. As to the interests of the members, it became clear during the hearing, that the agenda for the meeting of the Federal Council is a very lengthy one. This afternoon, at a very late stage in the hearing, the court was shown a facsimile of that agenda, said to occupy 63 pages and referred to certain passages in it; it included proposals for alterations to the rules of the Association.

After considering all the matters that have been put by both the applicant and the flve respondents represented by Mr. Macken, I have reached the conclusion that the interim order sought should be made.

I gave consideration to the possibility of making an order directing the respondents to defer the holding of the Federal Council meeting instead of making the interim order sought by the applicant. In that connexion matters considered have included the cost to the Association likely to be involved in such a course, and also included the fact that such a course was opposed by the five respondents

represented by Mr. Macken, even more strongly than the making

of the interim order sought. In all the circumstances I came

to the conclusion that, as between those two posslble orders,

the preferable course was to make the interim order sought by

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the applicant.

It may be added that during the hearing there was discussion as to the desirability of a record being kept at the meeting of Council on July 4 and 5 as to the way in which

the applicant votes in respect of each motion, and also a record of the number of votes which are cast by Council members for and against such motion.

Accordingly, the interim order which will be made against all of the respondents, other than Toni Hinton, to whom I have already referred, is in the following terms: an order that until the hearing and determination of the rule to show cause herein, the respondents and each of them perform and observe the rules of the Commonwealth Scientific and

Industrial Research Organization, Technical Assoclation, by recognizing and treating John Edwards as holding the office of Victorian branch councillor of the Commonwealth Scientific

and Industrial Research Organization, Technical Assoclation, and thereby being entitled to attend or appoint a proxy to attend and to fully participate in and to vote at the Council meeting on 4 and 5 July 1987, and to continue to hold that office until the declaration by the Returning Officer of the elections for the Victorian branch councillor in 1987 or until further order.

I should explaln that the words "or until further

order" are, of course, designed to preserve the rights of

parties to apply for some variation of that order if it

becomes necesary. I should perhaps add that I have made the

order against he respondents other than Toni Hinton,

although I am conscious of the absence of evidence as to

service upon the respondents other than those represented by

Mr. Macken. It has appeared to me that, having had the

benefit of a fully presented submission by Mr. Macken on

behalf of the five respondents, in the circumstances the

proper course is to make the interim order ex parte agalnst

the remaining respondents, other than Toni Hinton,

notwithstanding the absence of evidence of service. That has

been done because of the urgency of the matter and because

they are members of the Federal Council and other members of

the Council are to be subject to the interim order.

(After hearing further submissions as to service) it

is ordered that service of the rule to show cause and of the interim order may be effected in Brisbane, by the agents of

the applicant's instructing solicitors erving facsimile

copies of the rule to show cause and of the interim order

just pronounced in court here.

I certify that this and the preceding six

pages are a true copy of the Reasons for

Judgment herein of his Honour Mr. Justice

Keely

Associate: