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Egan, Barry Thomas v Maher, John Bernard

Egan, Barry Thomas v Maher, John Bernard

Case [1978] FCA 39 8 June 1978

Conciliation and Arbitration Act 1904

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EGAN v. MAHER (No. 2) (1978) 35 FLR 252 *(This case was heard in
conjunction with Egan v. Maher (No. 1)
(1978) 35 FLR 197 and O'Neill v. Egan (1978) 20 ALR 421 )
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Smithers(1), Evatt(2), Northrop(3) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance - Resolution of committee of management removing secretary from office - Appointment of assistant secretary to casual vacancy - Rule preventing dual incumbency of offices - Absence of express resignation from office of assistant secretary - Invalidity of resolution removing secretary from office - Invalid appointment to casual vacancy - Whether implied resignation by assistant secretary on purported appointment to casual vacancy - Resignation by operation of law - Concept of election - Whether election between alternative and inconsistent rights - Basis of justification of claim to office of secretary - Conduct justifiable on basis of election - Conciliation and Arbitration Act 1904, s. 141.

HEADNOTE

The Conciliation and Arbitration Act 1904 provides by s. 141(1) that the court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.

The rules of an organization provided by r. 14 - Officers - "For the purpose of this rule the term officer shall mean only those persons holding the following positions: national president, national vice-president, national secretary-treasurer and national assistant secretary. Such officers shall be elected by and from the national council and, if a delegate, upon election shall cease to be a delegate from any branch whilst holding their respective positions . . . No person shall hold at any one time more than one of the offices mentioned in this rule". Rule 12 provided by par. (c): "In the event of any vacancy occurring on the national executive, national council shall appoint another member from amongst the members of national council to fill the vacancy. Any member so appointed shall hold office for the remaining portion of the retiring member's term of office". Rule 19 - Duties and rights of national assistant secretary - provided by par.(b) . . . that the duties of the national assistant secretary shall be: "in the absence of the national secretary-treasurer, he shall assume the full duties of the national secretary-treasurer". No rule dealt expressly with resignation from office.

At the biennial meeting of the national council of the organization in 1972, E. and G. were elected to the offices of national secretary-treasurer and national assistant secretary respectively for a six-year term. At its 1974 biennial meeting national council resolved upon the removal of E. from office as national secretary-treasurer and that G. be appointed to fill the casual vacancy therein. G. did not subsequently expressly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Egan, Barry Thomas v Maher, John Bernard

Details

AGLC: Egan, Barry Thomas v Maher, John Bernard & Ors [1978] FCA 39 ((1978) 35 FLR 252; (1978) 35 FLR 197; (1978) 20 ALR 421)
Case: [1978] FCA 39
Decision Date: 08 JUNE 1978

CaseChat Overview and Summary

In the case of Egan, Barry Thomas v Maher, John Bernard, the respondent, Barry Thomas Egan, challenged the validity of a resolution made by a committee of management of a registered organisation, which sought to remove him from his position as secretary and appoint an assistant secretary to a casual vacancy created by his purported removal. The dispute was heard and determined in the High Court of Australia. The central legal issue before the court was whether the resolution removing Egan from his office as secretary was valid, and if so, whether the appointment of an assistant secretary to the casual vacancy created by this removal was valid.

The court examined the provisions of the Conciliation and Arbitration Act 1904, particularly section 141, which governed the rules of registered organisations and their committees of management. The court determined that the resolution removing Egan from his office was invalid due to the absence of an express resignation from his position. Furthermore, the appointment of an assistant secretary to the casual vacancy was also deemed invalid as it was predicated on the invalid resolution. The court did not find an implied resignation by Egan on the purported appointment to the casual vacancy. The concept of election between alternative and inconsistent rights was also considered, but the court found that the conduct could not be justified on this basis. Consequently, the court held that the resolution and the appointment were both invalid.

The High Court ultimately ruled that the resolution removing Egan from his office as secretary was invalid, and the appointment of an assistant secretary to the casual vacancy was also invalid. The court's decision underscores the importance of adhering to the prescribed procedures and rules when dealing with the governance of registered organisations. The final orders of the court would have reflected the invalidity of both the resolution and the appointment, potentially reinstating Egan in his office as secretary, pending further directions or resolutions in accordance with the rules of the organisation.

Orders