Frank Troja v L. McDonald

[1981] FCA 106

Re: FRANK TROJA
And: L. MacDONALD; M. McPIKE; G. STANLEY; R. DILLON; N. McDONALD; T. ANTONIOU;
W. BYGATE; G. COULTER; W. EGGLESTONE; R. HAWTHORNE; E. HELMAN; A. JAMES; W.
JENNINGS; W. LEGGE; J. MacDONALD; J. MURRAWOOD; W.J. CURRAN and THE
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
No. V26 of 1980
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.

CATCHWORDS

Industrial Law - Conciliation and Arbitration - hearing of charges against member of organization - Natural justice - nature and powers of domestic tribunal acting under rules resting upon consensual basis.

Conciliation and Arbitration Act 1904 ss.140, 141

HEARING

MELBOURNE

#DATE 16:7:1981

ORDER

The rule nisi herein made on 5 December 1980 be discharged.

JUDGE1

This is the return of a rule nisi by which Frank Troja (hereinafter called "the claimant") is seeking orders under s.141 and s.140 of the Conciliation and Arbitration Act 1904, as amended ("the Act"). The claimant is a member of the Australasian Meat Industry Employees Union (hereinafter called "the Union") an organization of employees under the Act. Each of the respondents, other than the Union, is a member of the Union and thus is under an obligation to perform and observe the rules of the Union and each is or claims to be a member of the Committee of Management of the Victorian Branch of the Union. Those respondents are hereinafter referred to collectively as "the member respondents". Under s.141 of the Act, the claimant is seeking orders that the member respondents and each of them perform and observe the rules of the Union by treating as null and void and of no legal effect certain decisions made at a meeting of the Committee of Management of the Victorian Branch held on 27 August 1980. In addition, the claimant is seeking orders under s.140 of the Act that specified rules of the Union contravene s.140(1) of the Act.

By letter dated 8 August 1980, the respondent Curran, in his capacity as Secretary of the Victorian Branch of the Union, wrote to the claimant as follows:

"You are hereby summoned to attend the Committee of Management meeting to be held in the Conference Room of the Downtowner Motel, Lygon Street, Carlton, on Wednesday the 27th of August 1980, at 10 a.m., in relation to breaches of Rule 9 - Power to Impose Fines. The charges are as follows: -

9. (p) The editorial comments published by you in 'Frank Troja's Newsletter to Members', 'Meat Employees' Newsletter' and 'Frank Troja's AMIEU Newsletter, Victorian Branch' were contrary to the decision of the majority of members at the Borthwick works, Portland, re F.K. Southen, L.J. Southen and M.G. Sawyer's failure to abide by majority decisions as is custom and practice, and that in these publications you published material relative to the actions of the majority of members at Portland that was untrue.

(o) That some time in March 1979, or just after, you published a document that called for donations to the 'Support Fund', giving a postal address that is publicised as your own, and in so doing, aided and encouraged members to create an offence.

(e) That in the same publications, you published a statement alleging mismanagement, continual political strikes and irresponsible strike action, and misappropriation of union monies. You have refused to give to the Committee of Management, Executive and Federal Executive, any information on these matters that are the business of these bodies, or lay charges against any officer.

(j) That immediately prior to the 15th of March 1980, you distributed a letter to members of the union advising them of a meeting at your house on the 15th of March. The comments and reasons given in that letter were clearly an attempt to obstruct the Committee of Management and the V.M.A. Dispute Committee in the carrying out of the decisions of the majority.

(j) The material published by you in relation to live sheep exports is an obstruction to the Committee of Management and the Federal Executive in carrying out its campaign against live exports, and contrary to the policy on this matter.

The letter to the Melbourne 'AGE', of 21.4.80 under your signature, is another action that reports the union policy in an untrue way that could cause the policies of the union on this issue of live exports to be misrepresented and so obstruct the union's officers and members in carrying out the policy of the union."

The relevant provisions of Rule 9 of the Rules of the Union are:

"9. POWER TO IMPOSE FINES

. . . each Branch Committee of Management . . . shall have the power, in addition to and without limiting the effect of any power otherwise by these rules created, to impose a fine not exceeding one hundred dollars ($100) for each offence on any member of the Union who: -
. . .
(e) Refuses to give information in regard to Union business or matter to an officer of the Union or of a Branch.
. . .
(j) Obstructs the Federal Council, Federal Executive or State Branch Committee of Management, Queensland District Committee or Sub-Branch, or any other lawful Committee or body of the Union, in any way in the performance of any of its functions.
. . .
(o) Aids or encourages any other member in any offence under this rule.
. . .
(p) Fails to carry out a unanimous or majority decision made in conformity with the rules and/or policy of the Union and in accordance with custom and practice of job and departmental meetings."

Rule 9(1)-(5) specifies procedures to be followed when a member of the Union is charged with an offence under Rule 9. A member charged is to be given every opportunity to defend himself and may, if he wishes, tender written submissions. The notice summoning him to the meeting must specify the grounds of complaint. The power to fine is subject to appeal to the Federal Council. Rule 9(5) is as follows:

"(5) When any member is charged with an offence under this rule by any official holding a seat on any governing body of the Union, such official shall not sit in judgment or exercise any vote when such charge is being decided by any governing body of the Union."

The claimant attended the meeting on 27 August 1980. The respondent Curran acted as prosecutor at the hearing of the charges. The claimant was given every opportunity to respond to each of the charges and he did so. No complaint is made as to the manner in which the meeting was conducted. The claimant denied he was guilty and claimed there was no evidence to support the charges. A number of documents were placed before each member of the Committee and in addition questions and answers and statements were made by persons at the meeting including the claimant. The hearing extended over a period of some two hours. There had been previous meetings at which similar matters had been discussed and further reference will be made to those meetings. After the hearing of the charges the claimant and Mr. Curran left the meeting. Thereafter the member respondents considered the matter and resolved as follows:

"That this meeting of the Committee of Management finds F. Troja guilty of the charges set out in the correspondence of 8th August, 1980, and that Comrade Troja should receive a severe penalty. But the Committee of Management, however, notes the inability of F. Troja to be articulate in his own defence and it appears that he is not fully responsible for his actions. It is also clear that F. Troja has persons outside the union advising him.

We believe that F. Troja is intent on causing disruption and spreading lies and distortions about the union. His feeble defence that he is only asking questions is not accepted by the Committee of Management and is regarded as an attempt to deceive people.

We in the Committee of Management, having seen F. Troja at three (3) meetings, are fully aware that his sole intention, for personality problems of his own, is to attempt to cause disruption and attack the union.

F. Troja's allegations were rejected by the Federal Executive. We believe that F. Troja should understand this resolution as a warning and a sign of understanding by the Committee of Management towards his personal problems. However, he should not expect that this tolerance will continue should his scurrilous statements continue towards officials, Committee of Management members and the union."

The claimant was notified of the terms of that resolution by a letter from Mr. Curran dated 2 October 1980.

The decisions which are attacked are identified in the rule nisi as the decisions which:

(a) purported to decide that the claimant was guilty of any charge heard or purportedly heard by the said meeting, and

(b) purported to impose any penalty on the claimant.

In addition, the claimant is seeking orders declaring that Rules 9(p) and 9(e) contravene s. 140(1) of the Act. During the course of the hearing attacks were made also with respect to Rules 9(j) and 9(o).

Counsel for the claimant submitted that his primary case was based on s.141 of the Act and that if he succeeded on that claim he did not wish to proceed with the claim under s.140. In my opinion, that is the wrong approach. In order to consider whether a case is made out under s.141 of the Act the relevant rules must be given their proper construction and, if necessary, a decision must be made on whether those rules, as properly construed, contravene the Act. If the rules do contravene s.140, orders can be made under s.141 insofar as the decisions attacked depend upon actions taken in reliance of those rules. Accordingly, I propose to consider first the claim based upon s.140.

The relevant parts of Rule 9 have been set out. Rule 42(1) is relevant. That sub-rule provides:

"42. EXPULSIONS

1. Any member who: -

(a) Misappropriates Union funds.

(b) Fails to observe any rule of the Union.

(c) Fails to observe any decision or resolution of the Federal Council, Federal Executive, Branch Committee of Management, or Branch Executive lawfully made within fourteen days after such decision or resolution has been duly communicated to the member.

(d) Fails to pay contributions, levies or fines for a period exceeding three years in succession,

may be expelled or suspended by the Federal Council or within their respective jurisdictions by the Committee of Management of a Branch."

Rule 42 then sets out detailed provisions prescribing procedures to be followed when charges against a member have been made under sub-rule (1).

The nature of the power conferred upon the Court by s.140(1)(c) of the Act has been referred to in a number of recent cases and in this respect reference is made to Allen v. Townsend (1976) 31 F.L.R. 431, Wiseman v. Professional Radio and Electronics Institute of Australasia (1978) 35 F.L.R. 24 and Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 F.L.R. 72.

It is necessary to make reference to what is meant by the words "objects of this Act" appearing in paragraph 140(1)(c) of the Act. It is not sufficient to take those words as referring only to the paragraphs appearing in s.2 of the Act. It is true that those paragraphs are said to be "the chief objects of this Act", but it is necessary to consider also the method by which Parliament has implemented those objects. In Lovell's case, supra, Northrop J. said at p.92:

"In 1973, object (f) was inserted in s.2 of the Act, s.3 of Act No. 138 of 1973. The same Act substantially amended s.133 of the 1904-1972 Act, s.52 of Act no. 138 of 1973. As a result of those amendments, thereafter the rules of organizations had to include provisions which ensured that all financial members of an organization were enabled to participate in the effective control of the organization. Putting the matter another way, the amendments to s.133 of the 1904-1973 Act were designed to give effect to the new object inserted in s.2 of the Act namely: 'to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization.' Since 1973, s.133 of the 1904-1973 Act has been amended further, but those amendments do not detract from the object first inserted into the Act in 1973." (Emphasis added.)

Another expressed object is contained in s.2(e) as follows:

"(e) to encourage the organization of representative bodies of employers and employees and their registration under this Act; . . . "

Parliament has given effect to that object by enacting Part VIII of the Act. Members of an organization are bound to perform and observe the rules of their organization and an organization must be able to ensure that its members comply with its rules. An organization must have this power in order to protect itself and to fulfil its purpose as an organization. In this regard decisions made in accordance with the rules of an organization must have effect even though individual members may disagree with those decisions. This is fundamental to every democratic institution. Members are free to try to have new policies adopted and new decisions made, but until that happens they are bound by the existing policies and decisions. McLeish v. Kane (1978) 36 F.L.R. 80 illustrates what might be considered to be apparent conflicts between the objects mentioned in s.2(e) and s.2(f). In this respect reference is made to two short extracts from the joint judgment of J. B. Sweeney, Evatt and Northrop JJ. At p.88 they said:

"Section 2(e) and (f) set out objects of the Act but we are unable to see that r.9 is in any way contrary to these objects. The objects are important but the Act then provides methods by which they may be realized and among those methods are the provisions for registration of the organization and the powers given to the court to act under s.140."

At p.91 they said:

"If the objects of the Act are seen to both encourage viable organizations and to encourage the democratic control of them, in determining the reasonableness of a rule it is necessary to look at what is practicable even though it may be something less than, for example, a complete democracy."

The latter principle is discussed at some length at pp.91-93.

Rules which create offences must not be so vague and uncertain as to be meaningless, but at the same time rules must be construed in a practical sense. Generally see Wiseman's case, supra, per Evatt and Northrop JJ. at pp.29-35. See also Wishart v. Australian Builders' and Labourers' Federation (1960) 2 F.L.R. 298.

It becomes necessary to consider the rules under challenge in the light of those general principles. Rule 9 confers power upon, inter alia, a Branch Committee of Management to ensure that members within the Branch work together for the benefit of the organization and its members and comply with decisions of the organization made in accordance with the rules of the organization. Rule 9 is complementary to Rule 42, but the penalties that can be imposed are much less severe.

Rule 9(e) is designed to enable the officers of the Union to take steps to ensure the Union is able to function effectively. If a member has no information to give, he cannot be in breach of the sub-rule. If by his activities, a member gives an impression that he has information in regard to Union business which is relevant to the proper management of the Union, he ought, upon request, to give that information to the officers to enable the officers to assess the matter and, if necessary, to take steps to rectify the position. Implicit in this is that there must be a request for that information. If the member does not have information to give he should not conduct himself in a way which gives the impression he does have that information.

Counsel for the claimant contended that Rule 9(e) creates an offence even where the member does not have any information to give and even where he is not requested to give it. He contended that the rule should contain words to the effect that a member, having relevant information, fails to give that information. These additional words are not necessary. The fact that a member does not have information to give constitutes a defence. But where, as in this case, a member by statements published over a long period has expressly and by innuendo claimed to have information concerning Union affairs, even though those statements are expressed in the form of questions, there is sufficient material to found a case under Rule 9(e). The member should give the information he has or should refrain from inferring he has information to give but refuses to give. Rule 9(e) is not contrary to s.140(1)(c) of the Act.

Rule 9(p) is designed to ensure decisions made in conformity with the rules of the Union are complied with by members of the Union. This is necessary having regard to the objects of the Act, as well as the purposes of the registration of organizations under the Act. This latter respect has been considered in the cases already mentioned. An organization stands in the place of those persons eligible to become its members with respect to their industrial interests. Parliament has imposed some restrictions on what an organization may do, see for example s.188 of the Act, but that does not detract from the general principle that an organization must be able to enforce its decisions upon its members. This again is part of the democratic process.

The evidence in the present case shows that within the Union there is the custom and practice of meetings of members at job levels and at departmental levels. These meetings are held to make decisions on matters of local import, such as working on a chain or boning section in a particular establishment, seniority, making donations to charities or to help workmates. This is a custom and practice which has been operating for many years and is well understood by the members of the Union, including the claimant. The rules are framed in a way that gives effect to this concept. In Victoria, the Branch Committee of Management comprises the officers and in addition representatives from employees of named works or jobs described by the name of the employer within and without the metropolitan area, as well as within various sections of the industry and geographic districts within Victoria, Rule 49. In addition, Rule 60 makes provision for shop committees having powers enumerated within that rule. Normally the job and departmental meetings held in accordance with custom and practice are called by the president of the shop committee or delegate in a department, but are separate and distinct from the meetings of the shop committees. The rules do not contain provisions expressly relating to job or departmental meetings but, in accordance with custom and practice, decisions taken by a majority of members present at those meetings are binding upon all members of the Union. In particular, members employed at that job or in that department, even though they may not have been present at the meeting, are bound by decisions taken and are required to carry out the decisions made. These members are directly concerned with those decisions. Members of the Union, other than those directly concerned, recognize those decisions as binding on the members directly concerned and to that extent are bound by those decisions. The custom and practice confers a degree of autonomy on members employed at a particular job, but any decisions arrived at at a meeting must be in conformity with the rules and the policy of the Union in the sense of not being contrary to those rules or policy. The policy is determined by the Federal Council, Rule 11. Rule 9(p) is in the form "fails to carry out". This implies that in order to be in breach of the rule a member must have knowledge of the decision, but does not import a requirement that formal notification must have been given before an offence is committed. There must be knowledge of the decision irrespective of whether the member is directly concerned by being a member at that job or in that department or is a member outside that area. A person cannot fail to carry out a decision if he had no knowledge of that decision. Rule 9(p) is not contrary to s.140(1)(c).

Rule 9(o) creates an offence of aiding or encouraging another member in committing an offence under Rule 9. The concept of aiding and abetting is not novel. It arises when a person is knowingly concerned in the commission of an offence. Under Rule 9(o) the offence is to "aid or encourage". There is no difficulty in giving meaning to those words, although difficulty can arise in deciding whether the facts of any particular case constitute the committing of the offence.

Rule 9(j) creates an offence of obstructing a lawful committee or body of the Union in any way in the performance of any of its functions. The essence of the offence is in the word "obstructs". That word has a number of meanings ascribed to it in the Shorter Oxford Dictionary, the relevant ones of which are "to interrupt or render difficult the passage or progress of; to impede, hinder, or retard (a person or thing in its motion). To stand in the way of, or persistently oppose the progress or course of (proceedings, or a person or thing in a purpose or action); to impede, retard, withstand, stop". In Rule 9(j), the word "obstructs" is used in relation to "the performance of any functions" of a committee or body in any way. For an offence to be committed under Rule 9(j), the conduct of the member must be such as to stand in the way of or impede or stop or tend to stand in the way of or impede or stop the committee or body in the performance of its function. In this sense the prohibited conduct is limited to the meeting of the committee or body and does not extend to include obstructing the carrying out of decisions reached by that committee or body. Rule 9 creates other offences relating to refusing to comply with the terms of lawful resolutions, see for example, Rule 9(c).

A consideration of Rule 9(a) - 9(p) indicates that particular conduct by a member might involve the committing of a number of offences created by that Rule. Likewise, the same conduct might involve the committing of offences under Rule 9 as well as Rule 42. This, however, is not a matter that calls for determination in this case.

The rule nisi, insofar as it is based on s.140 of the Act, is discharged.

The substance of the statements made by counsel for the claimant in support of the orders sought under s.141 of the Act was:

1. That the Victorian Branch Committee of Management in hearing and determining the charges against the claimant acted in denial of natural justice in that there was no or no sufficient evidence before the members of the Committee to justify a finding of guilty.

2. That two persons who were not members of the Committee of Management attended the meeting and voted on the resolution.

3. That the recorded number of votes for and against the resolution exceeded the number of persons present and entitled to vote. This is a separate ground from that referred to above.

4. That the rules of the Union did not authorize the penalty imposed upon the claimant.

These submissions will be considered separately.

Counsel relied heavily upon the decision of the Australian Industrial Court in Cameron v. Davis (1960) 1 F.L.R. 413. In that case, a transcript of what had taken place before the domestic tribunal was in evidence before the Court. In the present case, there is no such evidence before this court. Likewise, the Industrial Court relied heavily upon the views expressed by Williams J. in Australian Workers' Union v. Bowen (No. 2) (1947) 77 C.L.R. 601 at pp.634-5:

"It was for the executive council to form the opinion whether the acts charged constituted misconduct, and in the event of an affirmative opinion, to decide whether the matters brought to its information were sufficient to establish the charges. His Honour could only interfere if he was satisfied that the acts charged were incapable of constituting misconduct within the meaning of the rule (Leeson v. General Council of Medical Education and Registration (1889) 43 Ch.D., at pp.378, 383, 384), or if he was satisfied that there was no material before the executive council upon which honest men acting bona fide could find that the charges had been established : Allinson v. General Council of Medical Education and Registration ((1894) 1 Q.B., at pp.757, 760); cf. Minister of National Revenue v. Wrights' Canadian Ropes, Ltd. ((1947) A.C. 109, at pp.121-125)."

After citing that passage, Spicer C.J. and Morgan J. then said at p.420:

"Our view is that no body of men acting bona fide could find that charge (b) had been proved having regard to the material which was before the executive council."

With all respect, in my opinion that is not the correct principle to apply to the present case. The correct approach is that applicable to a domestic tribunal acting under rules resting upon a consensual basis. The correct principle is stated by Dixon J., as he then was, in Bowen's case at p.628:

"It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisified of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say, it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive (cf. Maclean v. The Workers' Union (1929) 1 Ch.D. 602, at pp.620-627; Stuart v. Haughley Parochial Church Council (1935) Ch. 452, at p.462; (1936) Ch. 32; Lamberton v. Thorpe (1929) 141 L.T. 638)."

That passage was quoted also in Cameron's case at p.419. See also Cains v. Jenkins (1979) 26 A.L.R. 652, (1979) 28 A.L.R. 219.

The authorities referred to by Williams J. in Bowen's case all related to statutory bodies not being domestic bodies acting under rules resting upon a consensual basis and the principles expressed do not apply to domestic tribunals such as the Committee of Management of the Victorian Branch of the Union. This is made clear by a reference to Maclean v. The Workers' Union (1929) 1 Ch. 602 per Maugham J. at pp.618-627, a passage that merits reading in full and being the passage referred to by Dixon J. in Bowen's case. In its application in Australia to organizations under the Act, it must be remembered that rules providing for example that a member might be expelled by a defined body without calling upon the member in question to explain his conduct might contravene s.140(1)(c) of the Act. For present purposes I do not find the expressions of opinion in cases such as R. v. The Deputy Industrial Injuries Commissioner, Ex parte, Moore (1965) 1 Q.B. 456 per Willmer L.J. at pp.476-7 and Diplock L.J. at pp.487-8 of relevance.

In domestic tribunals of the type presently under consideration, the members may act upon their own knowledge and upon hearsay. There has been no allegation of bias even though there was a suggestion made by counsel for the claimant that the action by the member respondents was done to discredit the claimant in elections pending in the Branch. On the material before the Court no such finding could be made. There has been no allegation of dishonest conduct on the part of the member respondents. There has been no allegation of any denial of natural justice in the sense of failing to give the claimant knowledge of the charges and an opportunity to defend himself.

It is not for this Court to conduct a re-hearing of the charges laid against the claimant. It is not for this Court to consider whether, upon the material before the Committee of Management, reasonable men acting reasonably could have found the claimant guilty of the charges. It was claimed that all the evidence was contained in documents which are before the Court. That is not accepted. There were earlier proceedings before the Committee of Management and there were many words spoken at the hearing before the Committee of Management on 27 August 1981. This Court cannot inquire into the question whether there was any evidence or material upon which the member respondents could reasonably arrive at their findings. This Court is not able to consider and weigh statements made not on oath and views formed on material that may be hearsay to or within the knowledge of the member respondents. It is not necessary for me to consider the substantial amount of evidence laid before the Court relating to the conduct of the claimant and the charges laid against him. Accordingly, the claimant has failed to make out a case on the basis of the submissions made.

A related issue, however, does arise. Under Rule 9, the claimant had to be given notice of the grounds of complaint against him. The grounds are in the nature of particulars of the charges made. In order to justify a finding of guilt, it is necessary that the particulars alleged are capable in law of constituting a breach of the rule or, in other words, are capable of constituting an offence against the rule.

A brief summary of the evidence before the Court is given. It must be remembered that the material before the Committee of Management might have differed from the material before the Court. In addition, the member respondents can make use of their own knowledge. Two main issues arose. The first related to a decision taken at a meeting held in accordance with custom and practice at Borthwick's works at Portland, outside the metropolitan area, of members employed at the works. The decision was that members employed at the works make a contribution of a specified sum of money to support fellow members on strike at Kyneton. Those contributions are not levies under Rule 8. Three members refused to make the contributions and on the evidence I am satisfied that in all probability they were in breach of Rule 9(p). They were members directly concerned and refused to carry out a decision made at the appropriate meeting. Subsequently, another meeting resolved that the members at the works would not work with those three until they had made the contribution. As a result the three were excluded from work. The matter was given much publicity, the full story of which is irrelevant for present purposes.

The claimant is a member of the Union employed at works within the metropolitan area. He was not a member directly concerned with the resolution passed at the meeting in Portland, but as a member of the Union he was required to recognize that meeting and the resolutions passed and that they were binding on the members directly concerned. The claimant took up cudgels on behalf of the three members. He produced a number of newsletters and other documents and gave information to newspapers. He caused his own documents to be distributed widely among the members of the Union. News items were published in the local press at Portland. The newsletters contained statements which were capable of constituting offences under Rule 9(p). At the same time they were capable of constituting offences under Rule 9(o) in that he knowingly concerned himself in aiding and encouraging the three members concerned to fail to carry out a decision made in conformity with the rules of the Union and in accordance with custom and practice of job meetings. He sought also to encourage other members to contribute towards a fund to assist the three members.

Over many months, the claimant in his newsletters, at the very least by innuendo, claimed that officers of the Victorian Branch were guilty of misappropriation of Union funds and mismanagement of Union affairs. He refused to give information to support his allegations, but nevertheless continued to make them, publish them and distribute them widely among members.

The second issue that arose concerned the export of live sheep from Portland. This had led to bitter disputes with employers and attempts to resolve the whole problem. Also there were negotiating committees of the Union engaged in discussions with employer groups concerning wages and conditions. The claimant had his own views on these matters and on numerous occasions published them in his newsletters, often in terms more emotional than factual and often expressed in a form which suggested bad motives on the part of the officers of the Union and members of negotiating committees. He continued to do this even after warnings and explanations. It is difficult to see how, on the evidence before the Court, that conduct of the claimant constituted the committing of an offence under Rule 9(j). The statements published may have been unrealistic, offensive and impractical but they did not obstruct, in the sense already described, any lawful committee or body of the Union in any way in the performance of any of its functions. The conduct complained of may well have constituted an offence under Rule 9(c) which reads:

"(c) Refuses to comply with the terms of any lawful resolution of the Federal Council, or of a Branch, or of the Committee of Management or Branch Executive, or Sub-Branch Committee of Management of any Branch within a reasonable period of time but not later than 14 days after such resolution has been communicated to the members, provided that nothing herein contained shall authorise a Branch or its Committee of Management or its Branch Executive or Sub-Branch Committee of Management to enforce any resolution which contravenes a resolution or direction of the Federal Council."

At the meeting of the Victorian Branch Committee of Management held on 27 March 1979 the claimant attended to answer matters similar to those already mentioned and arising from his conduct as set out in the newsletters and other documents. Thereafter the claimant continued to make his allegations. Charges were considered against him at a meeting held on 20 June 1980. Again the claimant attended. At that meeting the following resolutions were passed:

"The Committee of Management, having heard F. Troja inform the Chairman that he, F. Troja, did not have any objections to the manner in which he was charged under the rules to attend this meeting of the C.O.M. as in the correspondence of the 30th May 1980, is of the belief that F. Troja does not fully understand the rules of the union.

In respect of F. Troja's inability to understand the rules and his rights, the Committee of Management determines that the charges against F. Troja be adjourned to the next Committee of Management meeting and F. Troja be supplied with his own written material to assist him understand his rights as it is quite clear to the Committee of Management, on F. Troja's own statement to the C.O.M., that he has no idea of what he has written."

"Re F. Troja's statement of Union mismanagement and/or mis-appropriation, the Committee of Management requires F. Troja to give to the Committee of Management today his evidence of mismanagement and/or misappropriation, or to cease making such untrue allegations."

I do not find it necessary to make reference to the correspondence between the claimant, the respondent Curran and the Federal Secretary of the Union. At the meeting held on 27 August 1980 all the written material was before the member respondents as well as the letter dated 12 August 1980 from the claimant to the respondent Curran in reply to the letter of 8 August 1981 and in which the claimant expressed views on a number of matters relating to the charges laid. In addition, there were the statements made at the earlier meetings. From the documents before the Court, sufficient material is shown to exist which would constitute a breach of Rule 9(c). If that question had been raised at the hearing before the Committee, a formal amendment to the charge could have been made without any injustice to the claimant.

The first submission is rejected.

The respondents Hawthorne and Jennings attended and participated in the Victorian Branch Committee of Management meeting of 27 August 1980. Each had been validly elected in 1978 as a member of the Committee for a term of four years. The respondent Hawthorne had been elected as a representative from Wilson's, Dromana, while the respondent Jennings had been elected as a representative from Canadian Packers, Castlemaine. Later in 1978 Wilson's closed down. The respondent Hawthorne obtained employment in another industry, received injuries, and has been unable to work since. Wilson's has re-opened. In 1979 the respondent Jennings retired from work. Each remains a member of the Union. Neither has resigned his office on the Branch Committee of Management. Neither has been removed from office under Rule 58. Counsel for the claimant submitted that each had been elected as a representative from a particular works and that since neither worked at those works they automatically ceased to be members of the Committee of Management. There is no substance in that contention. The rules do not provide for automatic termination of office in those circumstances. The two respondents remain members of the Union and of the Committee of Management until they resign or are removed under Rule 58.

The second submission is rejected.

The resolution was adopted on a vote fifteen in favour to two against. The minutes show that sixteen persons eligible to vote were present at the meeting. Evidence was given that a Mr. Leon Stanley, a member of the Committee, was in fact present and did vote. The minutes do not record him as being present. The claimant gave evidence that Mr. Stanley was not present. Mr. Stanley gave evidence that he was present but could not explain why his name did not appear in the minutes. In addition, the respondents Curran, Murrawood and J. MacDonald gave evidence that Mr. Stanley was present. A number of observers were present at the meeting of the Committee. When for any reason the representatives from any of the works do not attend a meeting, an observer from that works attends. The observer constitutes a line of communication between the Committee of Management and the members at the works. The observers do not vote but their names, together with the names of the members of the Committee of Management, are listed in the minutes of the meeting as being present. The names are taken from an attendance book which each person present is required to sign. At the request of the claimant, the Federal Secretary of the Union had forwarded to him a letter dated 16 July 1980 listing the names of the members of the Committee of Management, but Leon Stanley is not listed in that letter. He is an organizer and his membership of the Committee was not challenged. His name appears as being present at the meeting held on 26 August 1980 which meeting was then adjourned to 27 August 1980. The letter from the Federal Secretary lists forty one members of the Committee. The letter of 2 October 1980 by which the claimant was notified of the resolution did not list the names of the members of the Committee who were present at the meeting. It was only after receiving a copy of the minutes and comparing the names of members of the Committee with the list of names appearing in the minutes that it became apparent that seventeen persons voted on the resolution, whereas sixteen members only, apart from the respondent Curran, were members of the Committee. The minutes listed thirty one persons, apart from the claimant and the respondent Curran, as being present at the meeting. In all the circumstances I cannot place any reliance upon the evidence of the claimant on this matter. Prima facie, the minutes should be accepted, but after seeing and hearing the other witnesses I find that Mr. Stanley was present at the meeting.

The third submission fails.

Rule 9 empowers a Branch Committee of Management to impose fines on members of the Union who contravene the provisions of that rule. The resolution passed by the Committee did not impose a fine on the claimant. The terms of the resolution passed have been set out. It states that the Committee found the claimant guilty of the charges and that he should receive a severe penalty, but for expressed reasons no penalty was imposed but a warning given. Subsequently the resolution was set out in a newsletter published and distributed by the Victorian Branch.

Counsel for the claimant contended that the rules did not provide for a warning, that the resolution and the publicity given to it amounted to a penalty not authorized by the rules and therefore should be made the subject of orders under s.141. He relied upon opinions expressed in Magner v. Fowler (1979) 26 A.L.R. 671. That case arose from facts where a committee was set up to report on a particular matter involving a charge against a member of an organization. The committee was not authorized by the rules of that organization. In any event, the committee did not comply with the rules of natural justice. The Court made orders under s.141 of the Act directing the respondents to that proceeding to treat the finding of the committee as null and void and to no effect.

That case is very different from the present one. Here the resolution does not, in my opinion, constitute a penalty. It does not impose any obligation upon the claimant. It does not require the claimant to do anything. It does not constitute a censure. The fact that the terms of the resolution may be used for publicity purposes is irrelevant. The claimant's newsletters which had formed the basis of most of the charges against the claimant had had a wide distribution over a long period. On the basis of a finding of guilty, a monetary penalty could have been imposed upon the claimant and that conviction and penalty could have been publicised. Although no penalty has been imposed, in all probability the claimant could have appealed to the Federal Council, Rule 9(4). These are all matters for internal resolution. The member respondents have not acted in breach of the rules.

The fourth submission fails.

The rule nisi insofar as it is based on s.141 of the Act, is discharged.

Orders accordingly.