Gallagher v Owens

[1992] HCATrans 125

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M21 of 1992

B e t w e e n -

NORMAN LESLIE GALLAGHER

Plaintiff

and

RONALD GEORGE OWENS on his own

behalf as well as on behalf of
and as representing all the
members for the time being of
the Federal Council of The
Australian Building
Construction Employees' and

Builders Labourers' Federation

EXCEPT THE PLAINTIFF and JOHN

CUMMINS

Defendant

Application for injunction

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 APRIL 1992, AT 9.02 AM

Copyright in the High Court of Australia

Gallagher 1 28/4/92

MR J.D. HAMMOND: If Your Honour pleases, I appear on behalf

of the plaintiff. (instructed by Marshalls & Dent)

MR K.H. BELL: If Your Honour pleases, I appear on behalf of

Mr Owens. (instructed by Geoffrey Edwards & Co)

MR H. BORENSTEIN: If Your Honour pleases, I appear for

Mr Cummins and I have an application to make in

relation to his role in the proceedings.

(instructed by Harry Nowicki & Co)

HIS HONOUR:  I must say one of the questions I was going to

ask you was what you were doing here,

Mr Borenstein. According to the title of the

action, you are excluded.

MR BORENSTEIN: Yes, Your Honour, we are very downcast at

the prospect that we are the only ones who are not

invited to the party and we are somewhat curious as

to the reasons. But, in any event, Your Honour, we

have an application to make that Mr Cummins be

admitted as a defendant to the action.

HIS HONOUR:  On what basis , Mr Borenstein?

MR BORENSTEIN: Well, Your Honour, the power of the Court to

do that - - -

HIS HONOUR:	I am not questioning the power of the Court.
MR BORENSTEIN:	The basis is, Your Honour, that he is a

federal councillor, he is the only federal

councillor for reasons unknown to us that is not

included. He is an officer of the organization in

the sense of holding the position of federal
treasurer and the matters in dispute here concern

union funds, or allegations of misappropriation of

union funds. He is the only federal councillor

from the State of Victoria on this federal council.

These are all matters that appear from Mr Hammond's

materials, Your Honour, and it is our understanding

and, I think, Mr Bell will tell Your Honour in due

course that it is not clear that all of the other federal councillors will be taking any particular position in relation to this matter and as the

charges which are the substance of this matter

emanate from Victoria and Mr Cummins is the

Victorian Branch Secretary at the moment, he has a

particular interest to ensure that this matter is

dealt with in the interests of those that he

represents.

HIS HONOUR:  Yes, thank you, Mr Borenstein. Mr Hammond, is

there any reason why Mr Cummins was omitted and,

having been omitted, why he should not now be

added.

Gallagher	2	28/4/92
MR HAMMOND:	Yes, Your Honour, there are two reasons.	The

first reason, it is beyond our comprehension

Mr Cummins would contemplate sitting as a member of

the federal council when hearing these charges, or

purported charges. As Your Honour heard from my

learned friend Mr Borenstein, the charges emanate

from Victoria. We would submit there would be an

irresistible case of invincible bias if Mr Cummins

sat on the council and on adjudicated the matter.

In fact, if Your Honour has had the opportunity of

reading any of the exhibited material, Your Honour

would see that the grounds that are attached to the

purported summons which brings us here were sent by

- the letter enclosing the grounds was sent by

Mr Cummins in his purported capacity as branch

secretary of the Victorian branch and he has been a

prime mover in bringing charges against

Mr Gallagher.

HIS HONOUR:  That may be a very good reason for him not to

sit on any disciplinary proceeding but that is not

quite the point at the moment, is it?

MR HAMMOND: That is the first ground, Your Honour. So,

therefore, we see no reason to restrain him from

hearing, in effect, the summons. We also say,

Your Honour, he is not a necessary party to this

proceeding. For that reason and, as Your Honour is

no doubt aware, the original jurisdiction which we

have invoked of the High Court with respect to

residents of different States is necessary to give

this honourable Court jurisdiction that residents

from the same State do not appear on both sides of

the record. The effect of joining Mr Cummins, in

any event, to this proceeding would be to thereby

deprive the plaintiff of the opportunity of

bringing this proceeding in the High Court in its

original jurisdiction.

That, of itself, may not have been sufficient

but we say, Your Honour, that as there is

absolutely no need - and Mr Cummins ought not be

sitting on the federal council, therefore, there is
no need to restrain him, he is not a necessary or

proper party.

An ex post facto decision of a similar nature

involving a person that laid the charges and was
the prosecutor of the charges was discussed in the
well known case of AWU (No 2) v Bowen. There, the
prosecutor, Mr Dougherty, was both the initiator of
the charges and a member of the body and the High

Court, in the decision of His Honour

Mr Justice Dixon, as he then was, said that he was

not a necessary or proper person to sit on the

executive body to decide the particular matter.

Gallagher	28/4/92
HIS HONOUR:	I do not have any great worries about that

aspect of it at this stage because that does not

necessarily preclude Mr Cummins from appearing to

represent the interests of the Federation, if it be

appropriate that he do so.

MR HAMMOND:  We would also submit, Your Honour, that the

interests of the Federation would be more than

adequately argued and represented by the president

who is now appeared by Mr Bell of counsel.

HIS HONOUR:  And it is your submission that if Mr Cummins

were added, not withstanding the existence of a

number of other defendants who are residents of
other States, that would be destructive of the

Court's jurisdiction?

MR HAMMOND:  Yes, Your Honour. The authority for that

proposition, Your Honour, is Watson and Godfrey v Cameron, (1928) 40 CLR 446, 448 to 449. So, Your

Honour, if no other defendant appeared it would be

a different situation but such is not the case now.

HIS HONOUR: Just at a quick glance at Watson v Cameron, I

am not sure that that really does dispose of the

matter, Mr Hammond, does it?

MR HAMMOND:  If it does not, Your Honour, then our concern

is substantially lessened. It was certainly my

view that the residents have to be - there must not

be on both sides of the record a resident from the

same State. Hence the plaintiff has been excluded

as a defendant although he is a member of the

federal council and Mr Cummins.	I mean, that is
obvious.

HIS HONOUR: That is obvious.

MR HAMMOND:  As a matter of abundance of caution we made

sure that he was not shown as a defendant.

HIS HONOUR:  In Watson and Godfrey v Cameron, according to

the report, the proceedings were brought by Watson,

a resident of Victoria, and Godfrey, a resident of

New South Wales, against one defendant, Cameron, a

resident of New South Wales. So in that sense, it

is clear that there could not have been proceedings

between residents of different States. But if

there are residents of different States, my

question to you earlier is: is the jurisdiction of

the Court precluded if one of the defendants

happens to be a resident of the same State as one

of the plaintiffs, or in this case, the plaintiff.

MR HAMMOND:  If we were faced with that position, we would

obviously strenuously argue that it were not the

case. We would prefer not to be placed in that

Gallagher 4 28/4/92

position, Your Honour, of having to argue that the Court does have jurisdiction, notwithstanding that

Mr Cummins, a resident of the same State, is on the

other side of the record. But if the Court is

satisfied that that would not be destructive of the

case, a great deal of our concern would be

alleviated, Your Honour.

HIS HONOUR:  That may well be, Mr Hammond. You are not

going to get that answer from me at this stage.

Certainly looking at the judgment of

Chief Justice Knox, it is not clear whether it is

said by way of generality perhaps or by reference

to the facts of the particular case, but certainly

he says at page 448:

I think it is quite clear that this Court has

no jurisdiction in this action, for the simple
reason that it is not an action between

residents of different States. Where there is

a resident of New South Wales on each side of

the record, he being a necessary party, the

claim being as here a joint claim, then it is

impossible to say that the controversy is

between residents of different States.

If that is a general proposition, it supports what

your concern may be.

MR HAMMOND: It does, Your Honour, yes.

HIS HONOUR:  Mr Borenstein, what do you say about that?

MR BORENSTEIN:  Your Honour, we say two things. In relation

to the first matter that Mr Hammond put to

Your Honour as the reason for Mr Cummins not being a necessary party, the fact that he may not sit at the disciplinary hearing, we do not quibble with

that aspect of it but, as Your Honour correctly

pointed out to my learned friend, that is not the

issue today.

HIS HONOUR:  I do not think you need worry about that

aspect.

MR BORENSTEIN: No. If I might just put on the record,

Mr Cummins has an interest in seeing that the

charges are progressed, and that is the legitimate

interest that he has as a federal - - -

HIS HONOUR: Is it an interest, Mr Borenstein, that is not

adequately protected by Mr Bell's representation?

MR BORENSTEIN:  I indicated to Your Honour before - and

Your Honour will hear from Mr Bell in due course -

that he is not in a position to say what Mr Owens,

on behalf of all the other federal councillors,

Gallagher 28/4/92

what position they will ultimately take. The

papers do disclose that there is disagreement
between the members of the federal body in relation

to this matter, and we cannot be sure that they

will all argue the matters which Mr Cummins may

wish to put in support of or against this

particular proceeding. That is the first thing we

say.

The second thing we say, Your Honour, is - and

this seems to be more the substance of the reason

for Mr Cummins being omitted - that it is an

improper action for a plaintiff to take to

deliberately omit someone who, on the face of it,

would appear to be in the same position as all the

other defendants and a necessary party simply to

excite the jurisdiction of this Court. Your Honour

was looking at Watson and Godfrey and Your Honour

looked at the judgment of the Chief Justice.

If I could direct Your Honour's attention to

the judgment of Mr Justice Isaacs, Your Honour will

see there that he deprecates attempts that a

plaintiff might make by a device to invoke the

jurisdiction of the Court by playing around with
the parties so that, in the example that

Mr Justice Isaacs gives, he does produce a party in another State so that he can come to the High

Court. Here we say it is the other side of the

same coin, that he leaves out a party so that he

can come to the High Court.

We say, Your Honour, that this plaintiff has

rights in the State courts which he could and

should exercise, and there was absolutely no need

for him to come to this Court, and that he has left

Mr Cummins out as a blatant device so that he can

come here. We say that is improper and not

something that should be countenanced by the Court.

HIS HONOUR:  Yes, thank you, Mr Borenstein.

MR BORENSTEIN:  And if the result of that is that this Court

has no jurisdiction, well, the plaintiff has made

his choice. He has had legal advice and he has

made his choice, and he has come here when he could

have gone elsewhere where he did not have to face

this problem, and he would have had the same

remedies and the same rights.

HIS HONOUR:  Thank you, Mr Borenstein. What I propose to do

is to defer for the moment not so much the question

of your representation, but the question of

Mr Cummins' position as a defendant until I know a

little bit about this matter. But, Mr Hammond,

why were proceedings not brought in the Supreme

Court of Victoria first?

Gallagher 6 28/4/92

MR HAMMOND:  Your Honour, it was felt that there would be

some difficulty in bringing the matter in the

Supreme Court of Victoria for the following

reasons: first, the meeting at which the hearing

is to take place is in South Australia, and save

for Mr Cummins and the plaintiff, every other

member of the executive are non-Victorians.

To bring it within the jurisdiction of the

supreme court it would have meant necessarily to

find a wrong or a contract that had been made or breached or a wrong in Victoria. In the limited

time available to research the matter, it appeared
that it would be very difficult for us to

demonstrate that there was a contract, for example, evidenced by the rules of the organization as being

made in Victoria. As to whether it would be

breached in Victoria, it seems there is authority

for the proposition that when a letter is sent from

person A to person B which is relied upon for the

purpose of the breach, the breach has occurred when

the sender sends the letter. Now, the letter came

from South Australia so the breach perhaps occurred

in South Australia. So far as the wrong is

concerned, it would appear that the wrong occurred

out of Victoria, and apart from Mr Cummins and the
plaintiff, there are no other defendants in
Victoria.

And as a matter of effective relief, we would be simply enjoining non-Victorian persons from

meeting in another State to consider the charges,

and that has particular enforcement and relief

problems in that regard, especially as the relief

is discretionary and we would be going to the

Victorian Supreme Court to ask for the Supreme

Court of Victoria to give that relief with respect

to a meeting, as Your Honour is no doubt aware,

that is going to occur tomorrow.

HIS HONOUR:  But you are going to the Supreme Court of Victoria in any event, are you not, in respect of

the Victorian branch of the Federation?

MR HAMMOND:  Yes. There we say any breach of the rules

occurred within Victoria, and we are on, we

believe, sounder ground there.

HIS HONOUR:	Have those proceedings been launched?
MR HAMMOND:	They have not been launched yet, no,

Your Honour. And, with the greatest of respect,

Your Honour, if I may just comment on

Mr Borenstein's comment, it was not a device, it

was felt that he is not a necessary or proper party

to this particular proceeding even though, true it

is, he is a member of the federal council

Gallagher 28/4/92

HIS HONOUR:  I am sorry, I do not follow that. I mean, I

understand the argument that he ought not to sit on

the proceedings that will take place tomorrow - - -

MR HAMMOND:	Yes.
HIS HONOUR:	- - - but I do not understand the argument that

as a councillor he has no less interest, or that he

has a less interest, than other members of the

council.

MR HAMMOND:  The way we put it, Your Honour, is that the

summons is requiring Gallagher to appear before the
federal council. It is not necessary for

Mr Cummins to sit on the federal council and appear and adjudicate on Mr Gallagher's alleged offences.

HIS HONOUR:  No, but what you are seeking to do is to

restrain the council from proceeding at tomorrow's

meeting?

MR HAMMOND:	Yes, Your Honour.
HIS HONOUR:	Now, as a councillor, in the ordinary course,

why would Mr Cummins not have as great an interest

as any other member of the council?

MR HAMMOND:  He may well have an interest to intervene - - -

HIS HONOUR: That is what I am speaking of.

MR HAMMOND:  - - - but as an intervenor, as distinct from

being a party. If he wishes to put argument why

the summons, for example, which has emanated

indirectly from his client is valid, that is one

thing, but it is not necessary for the

determination of the proceeding that he be a party;

it is not necessary for the hearing of the

allegations against Mr Gallagher that he sit; and,

provided there is an adequate controvertor to the issues raised in the material then, unless he can

demonstrate that he would put something else or has

an interest different from the others, we submit

that he is not a necessary and proper party to

ensure that the issues are properly ventilated and

that justice as between the parties is done.

HIS HONOUR:	The complaint, basically, is that the meeting scheduled to be heard tomorrow will, if it takes
place, be in contravention of the rules?
MR HAMMOND:	Yes, Your Honour.
HIS HONOUR:	I would have thought that Mr Cummins had as

much interest as any other councillor in being

heard on that matter.

Gallagher 28/4/92

MR HAMMOND:  He may, Your Honour, in that respect. We do

not deny that he can demonstrate a sufficient

interest to intervene but that there is no

necessity, we would submit, that he be a party

provided there are others representing the council

before the court.

HIS HONOUR:  The whole argument becomes a bit circular. I

mean, if the necessity or otherwise for him to be a

defendant to some extent turns upon the

jurisdiction of this Court, I mean, where do you

start? If the Court has no jurisdiction if he is a

defendant, is that a proper reason for excluding

him if he would otherwise ordinarily be a

defendant?

MR HAMMOND:  We would submit the focus would be on what is

the issue before the Court, and the issue before
the Court is whether or not the summons is valid

and therefore whether or not the federal council

should sit and adjudicate on Gallagher. If one

analyses the position in that light, then one needs

to ask the question, "Is it necessary for

Mr Cummins to be heard on that question?" That is

not suggesting that he may not be a convenient

party but, we would submit, he is neither a

necessary and, in the circumstances, a proper

party. In the circumstances, Your Honour. If

there were nobody else we would be in a most

difficult position.

HIS HONOUR: All right, well let us put that to one side

just for the moment and come to the crux of your

client's complaint.

MR HAMMOND: If Your Honour pleases.

HIS HONOUR:  I have read what I would take to be the basic papers, Mr Hammond. A lot of material has come in

in the last five minutes which I think is largely

relating to service.

MR HAMMOND:  It is, indeed, Your Honour, and there will be

no need for me to take Your Honour to that

material.

HIS HONOUR:  I cannot pretend to have been through the rules in any detail. I have looked at the rules so far

as they are reflected in the statement of claim.

MR HAMMOND:  Your Honour, perhaps it might be convenient if

I just go to there. That is really the crux of the

issue; that is to the relevant rules which, we

say, the summons does not comply with. Would it be

convenient, first, if I take Your Honour to the
purported summons, which is exhibit NLG3, in the

High Court affidavit of Mr Gallagher. That is, not

Gallagher 9 28/4/92

NLG3 to the draft affidavit, but NLG3 in the High

Court affidavit, Your Honour. That should be the

purported summons.

HIS HONOUR: Well, is it NLG3 or NLG2?

MR HAMMOND:  I am sorry, Your Honour, Your Honour knows

better than I - NLG2.

HIS HONOUR:	Yes, right.
MR HAMMOND:	NLG3 is the - - -
HIS HONOUR:	NLG3 is the letter.
MR HAMMOND:	- - - is the letter in response, yes,

Your Honour. We say, Your Honour - and I will then

take Your Honour to the rules - there are two types

of defects with the summons. We submit there is

what one might call a procedural defect, that is,

it is being issued at a time when there has been no

determination of the matters which are necessary to

ground a summons being issued and, we say, there

are substantive defects with the summons itself.

The procedural defect, we submit, is that prior to a summons, if this be a summons to show

cause why Mr Gallagher should not be removed is

that, in our submission, it is necessary that there

first be a charge under rule 24; that charge be

determined one way or the other, and if

Mr Gallagher is found guilty of the particular

charge it is then felt that the penalty that is

imposed under 24, or the nature of the charge as

such that it warrants Mr Gallagher's removal as

general secretary, it then goes to the federal

council for the federal council - - -

HIS HONOUR:  It then goes back to the federal council?

MR HAMMOND: Well, it may go back. It depends who hears it

first. There is no necessity for it to be heard by

the federal council under rule 24, as Your Honour

has doubt observed. There are three possible

tribunals that can hear a charge under rule 24;
the federal council, the federal management

committee, and a branch executive committee. Each

of those have jurisdiction to hear the charge.

HIS HONOUR:  If the federal council is the tribunal chosen

to hear the charge, is there any reason why, in one

hearing, the council cannot determine whether there
has been a breach of the rules, and having so

determined what, loosely, you could call the guilt

of the officer concerned, may not then proceed to

determine whether removal from office is an

appropriate action?

Gallagher 10 28/4/92

MR HAMMOND:  No reason at all, Your Honour, provided the

procedure set out in the rules is followed. If for

example a charge is filed or laid under rule 24,

the full particulars et cetera are given of the

charge, there is a full hearing, proper notice is

given in respect of the charge, then, depending

whether it is dismissed or a penalty imposed, then

presumably the federal council would then need to

consider whether further disciplinary proceedings

may be necessary against Mr Gallagher or an office
bearer, and it would then say that we now call upon

you to show cause why you should not be removed in

the light of the findings of - and this was posited

by Your Honour - the federal council, I think it is

14 days, presumably, at least, to appear before the

federal council, and argue that issue. Not reargue

his guilt or otherwise below.

HIS HONOUR:  That was not the example I put to you. What I

put to you, Mr Hammond, was the possibility of the council in one proceeding determining the guilt or otherwise of the officer and if determining it

adversely to that officer, then proceeding, having

alerted him to show cause, proceeding then to

decide whether he should be removed from office.

MR HAMMOND:  We would submit no, Your Honour. They cannot.

We would submit it cannot occur in the one proceeding. There needs to be a two-step

procedure.	The first step is the charge, because
there are appellate rights from the charge.	It may

well be, for example, that one might be charged,

one might be found guilty. One then exercises

one's rights of appeal and it may never get to the

next point.

HIS HONOUR:  No, of course it may never, but the question

is, what if it does?

MR HAMMOND:  We submit that before it can get to a rule 28,

show cause, situation, they have to first comply
with rule 24.	Once that has been complied with and

any subsequent rights exhausted - exercised and or

exhausted, as the case may be - one could then, if

the federal council sees fit, the federal council

can then summon, by way of a show cause, the

requisite officer.

We submit that the position is not unlike a

professional body adjudicating on a member of the
profession after another body has adjudicated with
respect to their guilt or otherwise on criminal
charges. True it is, the rules do contemplate that
the same body, the federal council, can act in both

roles, and we do not cavil with that, but we do

submit that there is a procedure that has been laid

down within the rules and that must be followed:

Gallagher 11 28/4/92

the charge; determination of the charge; appeal, if

there be the right in the circumstances, or the

person is applying to appeal; then a show cause.

The show cause is limited, Your Honour, as

Your Honour has no doubt observed, to specified

classes of offences; it is not every offence which

can be the subject of a show cause why you should

not be removed. We submit, therefore, it is not

every charge which could result in a summons to

show cause why the officer should not be removed.

HIS HONOUR:  No, I understand that. They may be matters of

such minor seriousness that they could hardly

result in the removal of the person from office,

but if it is contemplation that a person may be

removed from office, is there any reason why a

summons in the form of this summons cannot be

issued, calling upon the officer to show cause why

he should not be removed from office having regard

to a number of allegations that are made against

him?

MR HAMMOND:  Yes, Your Honour. We say, first, those

allegations, those grounds, have to have been first

established.

HIS HONOUR:	I know you say that.
MR HAMMOND:	We say that, and we say that - - -
HIS HONOUR:	Have a look at rule 28 as pleaded in the statement of claim, paragraph 15 on page 9.
MR HAMMOND:	Yes.

HIS HONOUR: Well, it reads:

The Federal Council may remove from office any

officer ..... at a meeting of the Federal

Council to which the person concerned has been

summoned in writing ..... to show cause why he

should not be so removed. Provided that no

such person shall be removed from office
misappropriation of the funds of the	unless he has been found guilty of of the Federation, or gross misbehaviour or gross neglect of duty -

and I will not read the next couple of lines; they

are not relevant. Then the rule continues:

A person summoned to show cause ..... shall be

given at least 14 days notice of the time and

place of the meeting ..... The notice summoning

him shall also specify the ground or grounds

Gallagher 12 28/4/92

upon which it is proposed to consider his

removal.

MR HAMMOND:  Yes. What we say about that, Your Honour, we

say that far from empowering the federal council to

do it, as it were, in one step or in one

proceeding, the subrule (ii) reinforces our

argument. What is to be considered is whether the

person should be removed, and specifying the

grounds. The grounds must be that:

he has been found guilty of misappropriation

of the funds of the Federation, a substantial
breach of the Rules of the Federation, or

gross misbehaviour or gross neglect of duty -

et cetera. So they are considering, at that

hearing, his removal. They are not, we submit,

considering whether or not he ought to be found

guilty but, rather, whether he has been found

guilty. We readily concede, Your Honour, that it

may well that that in an earlier proceeding that

very council may have so found the member guilty,
but that is a condition precedent, we submit, to

the consideration of the member's removal.

HIS HONOUR:  So your argument, Mr Hammond, is that there can

be no summons to show cause why an officer should

not be removed, unless there has already been a

determination of guilt whether by the Federal

Council or by one of the other bodies in which

power to determine guilt is vested.

MR HAMMOND:  Yes, Your Honour. That is the first basis of

our complaint. The second - and I might say,

Your Honour, that that in one sense, although one

perhaps cannot rely too heavily on this, in "NLG2"

the letter starts off friendly enough:

Dear Norm -

and then goes on to: 

re: Victorian Charges

So there seems to be a contemplation that there are

going to be charges heard at the time.

HIS HONOUR: That there are?

MR HAMMOND:  They either are or going to be heard, the charges, and we would submit that - - -

HIS HONOUR: Well, that is clear enough, I think, because if

you look at the resolutions upon which the summons

relies, they go no further than to say:

Gallagher 13 28/4/92

the Victorian Branch Executive
Committee ..... resolves to refer the following
matters, under Rule 8(l)(e), to the

Federal Council -

to determine, and then it goes on:

That the Federal Council remove from

office .... the General Secretary of the

Federation, on the ground that he is guilty of

gross misbehavior.

and then particulars are set out.

MR HAMMOND:	Yes.
HIS HONOUR:	I must say, when I read it it did not seem to

me that the branch executive committee was
purporting to have determined guilt, referring the

entire exercise to the Federation.

MR HAMMOND:  Save for what appears on page 2 of those

resolutions, Your Honour. There is what appears to

be a number Resolution 2:

That the Federal Council remove from office,

N. Gallagher, the General Secretary of the

Federation, on the grounds that he has

misappropriated the sum -

and there is a sum -

being funds of the Federation.

And the particulars:

That on 5 March, 1992, the Victorian Branch

Executive found N. Gallagher guilty - - -

HIS HONOUR: Sorry, where is that?

MR HAMMOND: There are three pages of Resolutions.
HIS HONOUR:	I see, the number 2 appears in a couple of places; yes, I see that.
MR HAMMOND:	Now:

That the Federal Council remove from office,

N. Gallagher, the General Secretary of the

Federation, on the ground that he has

misappropriated the sum of $7,836.76, being

funds of the Federation.

Particulars:

Gallagher 14 28/4/92

That on 5th March, 1992, the Victorian Branch

Executive found N. Gallagher guilty of

misappropriation of the Funds of the

Federation -

et cetera. Now that - the removal of office of

Mr Gallagher under that purported resolution is the

subject of an appeal by Mr Gallagher to the Federal

Council. This tends to reinforce, we submit, the

need for the two steps. There are other complaints

we would make about that particular offence, but

there is no need to trouble the Court about those.

Apart from that matter, so far as the other

resolutions are concerned the observation from

Your Honour is clearly correct. They do not appear

to have decided those other resolutions, the

..... otherwise.

HIS HONOUR: That reference of yours to No 2 really prompts

another question which I was going to ask you at a

later stage, but I will ask it now. If there is an

appeal pending from a decision of the branch

misappropriated certain moneys, being funds of the	executive committee that the plaintiff stage, not only in relation to that matter, but generally? What are the consequences of the Court not intervening and the meeting proceeding tomorrow
and, let us assume, reaching conclusions adverse to your client?

MR HAMMOND:  My client is immediately removed as general

secretary, he has no income, he has no position,

and he is then placed in the position of

endeavouring to recover that which he has lost.	He
is irreparably damaged.

HIS HONOUR:	What do you mean by "irreparably damaged"?
MR HAMMOND:	Your Honour, these are very serious charges.

One can well imagine that the publicity surrounding

a very prominent person like Mr Gallagher being

dismissed from an organization, of which he says he

has been a member for some 40 years, for

misappropriation of funds - put aside the neglect

of duty points - for theft, he never could be

compensated for the effect, we would submit, on his

reputation in the union movement and elsewhere once

he has been removed from office following such

resolutions.

HIS HONOUR:	But he has hanging over his head now, from what you say, a resolution of the branch executive
committee that he misappropriated $7000.
MR HAMMOND:	He certainly has that hanging over his head,

Your Honour, but once he is removed as general

Gallagher 15 28/4/92

secretary of the federal body, we submit that is a

matter about which the Court can be concerned.

HIS HONOUR: Let us assume that all your arguments about the

way in which this matter is being handled are

correct: no injunction is granted and the meeting

proceeds tomorrow and your client is removed from

his position as general secretary. If it be the
case that the council of the Federation has acted

contrary to the rules or contrary to natural

justice, or whatever it might be, then presumably

that decision can be set aside.

MR HAMMOND:  It can in due course, Your Honour, but

Your Honour is aware also that Mr Gallagher has

office for a limited period, from November 1989 -

he became a branch secretary in September - for

four years to 1993. It is not an exaggeration, in

our submission, to say every day that he is
deprived office is irreparable loss. It may well

be - and there have been cases, Your Honour - that

by the time the matter eventually gets to Court and

is determined, that his term of office has expired

and he is no longer able to be properly reinstated,

notwithstanding any wrong he may have suffered as a

result of the action.

But on the other side of the coin as against

that, Your Honour, all we ask is that the

procedures be properly followed. We do not ask

much more than that. Given the time constraints

within the rules, it is quite possible that in a

very short time, if we are correct, the charge or

charges could be heard, determined, appeals heard

and determined, and the matter back to federal

council if they are determined to continue with the

proceeding.

HIS HONOUR:  It is quite as simple as that, is it, depending

on what the defendants say is the proper

construction of the rules, but if they take issue

with you, as I imagine they will, the injunction

you seek is one that restrains the Federation from

taking any further action until the outcome of the

proceedings in this Court or as remitted to the

Supreme Court of Victoria?

MR HAMMOND:  No, with respect, Your Honour. We have

deliberately narrowed our relief to restraining the

federal council acting upon this summons. It is a

matter for the federal council and their advisors,
but if the federal council decides it can quite
properly act in one proceeding, that is a matter

for it. If, however, the federal council takes the

view that the safer road is to take the road

postulated by Mr Gallagher, they can then go

through the steps. But if they take the view that

Gallagher 16 28/4/92

was posited by Your Honour, they could do it in one

proceeding and with a show cause summons, 14 or 15

days hence the matter could be brought on in proper

form.

HIS HONOUR:  But if they are wrong then the proceedings will

be aborted anyhow?

MR HAMMOND:	If they are wrong, yes, Your Honour.
HIS HONOUR:	And if they are wrong the proceedings tomorrow

will be aborted?

MR HAMMOND:  In due course, yes, Your Honour. We say that

it is proceeding in the way they are is the vice.

HIS HONOUR:  Yes, I appreciate that, but the injunction you

seek, in effect, freezes any action by the
Federation until this question - by "this question"
I mean the proper course to be followed by the

Federation - is resolved by this Court or on

remitter by the Supreme Court of Victoria.

MR HAMMOND:  Yes, Your Honour, and it is clearly a balancing

question.

HIS HONOUR:  Let us assume an injunction were granted now,

the proceedings remitted to the Supreme Court of

Victoria, it might be some months before that

matter were resolved. So it is unreal to talk

about proceedings 14 days down the track.

MR HAMMOND: With respect, we would submit that need not be

the case. It is a matter for the Federation. If the Federation takes a conservative view and does not wish to be involved in lengthy litigation it

could take the position that we say it ought to

take, namely charge, appeal if need be, hearing.

HIS HONOUR:  But it can take its chances now, Mr Hammond.

If it decides to go ahead with tomorrow's meeting

and your arguments are correct, then any action it

takes tomorrow may well prove to be completely

ineffective.

MR HAMMOND:  It may be, Your Honour, but so far as the

interests of the parties are concerned, the person

that would be most detrimentally affected, we

submit, is Mr Gallagher. The clock is ticking

against Mr Gallagher every day because by 1993 he

loses office by the effluxion of time. It is not

in Mr Gallagher's interests - - -

HIS HONOUR:  Yes, but I am not sure in what sense you mean

it is ticking against him. If the council meets

tomorrow and resolves either that there has been a

finding of guilt or resolves that the plaintiff is

Gallagher 17 28/4/92

guilty of conduct alleged against him and decides

to remove him from office and those proceedings are

subsequently held to be aborted, then presumably

any salary to which he is entitled he will continue

to be entitled to.

MR HAMMOND:  Your Honour, it is as position as general

secretary of the union. With respect, people do

not -

HIS HONOUR:  - - - and I understand that but you are

shifting it from - - -

MR HAMMOND:	No.
HIS HONOUR:	You are not suggesting that there is a

reparable financial loss, are you?

MR HAMMOND:  No, Your Honour. He can be compensated for his

salary. I do not wish to be seen to be shifting.

Why I say - when I am saying his time expires in

1992, it is as general secretary of the union.

People tend to want to hang on to their positions

of political office notwithstanding the monetary

rules and there are many benefits in the exercise

of the position and that is what I mean by the

clock is ticking. It could then well be in the

because his position will evaporate next year.

interests of the Federation and those within the delay

We submit that the balance of convenience, if

this is another way of putting what Your Honour is

putting to me, that is, as a matter of discretion

what should one do, we would submit that in the

circumstances, there is less harm caused and will

be less harm caused to the Federation to require

the Federation to go through certain steps if it

wishes and not proceed on this particular summons,

than it would be to require Mr Gallagher to appear

before the federal council and suffer the

consequences and then try to get back in again to

his position. We would submit that the charges are

such that - they are very serious charges and that

he is entitled, we submit, to what we say is a

summons in proper form and the procedure being

followed.

We also say, Your Honour, that the summons

itself may have substantive defects of a minor and

major nature. First, the purported summons does

not set out that Mr Gallagher is summonsed to

appear to show cause why he should not be removed.

It does not say "why you should not be removed".

We have inferred that by virtue of the attachments,

but the summons does not accord with the rules.

Gallagher 18 28/4/92

HIS HONOUR:	What is the summons?
MR HAMMOND:	It is purportedly - we have taken the letter of

13 April 1992 to be a notice in writing which we

have called the purported summons but it does say

it summons us to appear, and if Your Honour looks

at rule 28(c)(i), it is necessary to be summonsed

to "show cause why he should not be removed". So
to that extent the initiating document is

defective.

HIS HONOUR:  What, are you suggesting that it cannot be read

along with the attachments?

MR HAMMOND: Well, it can be, Your Honour, but this is not

just a traffic offence where one can simply amend.

These are very serious allegations and we submit,

Your Honour, that he is entitled to a summons in

proper form. It is not mere pedantry.

HIS HONOUR:  Yes.

MR HAMMOND: Secondly, Your Honour, the next substantive

defect is the summons itself does not specify the

grounds as required by rule 28(c)(ii). It has

annexures, but we submit that the summons itself

should set out the grounds upon which it is going

to be sought that he need be removed, and the

problem with annexing documents, Your Honour, is

demonstrated by the second paragraph. First, it

refers to a rule which, on our instructions, just

does not exist, that is 28(c)(ll). That might be

the typist putting 11 instead of ii, so we do not

cavil at that too much, but there is that defect,

but it says which demands that you be given "at

least 14 days notice of the time and place of the

meeting of the Federal Council". The grounds are

as set out in the resolution, singular, annexed to

the Victorian branch letter referred to above.

Now, in our count there are four resolutions,

so we submit that that is another substantive
defect.	We submit that the letter, the summons

itself, cannot simply incorporate other documents,

but even if it does, it should specify with

particularity which of the documents contain the

grounds.

The other minor point, Your Honour, and it is

only a minor point - it is similar to the 28(c)(ll)

point - in the second line of the letter, refers

to 28(c)(l) when it should be, probably, (i).	The
rules have been amended over the years and as

Your Honour, no doubt, observed in the pleading, it

refers to subrule (d), and we have been unable to

locate a subrule (d). But that is only a minor

point and, of course, we would not be in this Court

Gallagher 19 28/4/92

if that were our only complaint, but our

substantive complaint is the procedure, we say, has
not been followed, namely the condition precedent

and, secondly, the summons does not set out that we

should show cause why we should not be removed.

Thirdly, it does not specify the grounds upon which

we have presently been found guilty, and to the

extent that it purports to do so it refers only to

one resolution, not to the four resolutions which

are annexed. They are my submissions, Your Honour.

HIS HONOUR:  Thank you. Mr Bell?

MR BELL:  Your Honour, regrettably I have a kidney complaint

which is going to take me out of Court for two

minutes, if Your Honour will grant me that time.	I
am aware of the time.

HIS HONOUR:  Yes, I certainly will. I will have to leave

here just after five past because I am

sitting - - -

MR BELL:	I will be 10 minutes, Your Honour.
HIS HONOUR:	- but I will resume at 1 o'clock if it is

necessary.

MR BELL: If need be, very well.

HIS HONOUR:  I do not want to put counsel under any undue

constraints, but obviously the matter has got to be

resolved this afternoon.

AT 9.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.54 AM:

HIS HONOUR:  Yes, Mr Bell.

MR BELL:  Thank you very much, Your Honour. My client has a

number of objections that it would have raised had

time permitted.

HIS HONOUR: Well, as I said to you, I do not want you to

feel constrained. I do not want you to feel

unconstrained either, I might say.

MR BELL:  Your Honour, I will go straight to the point.

HIS HONOUR:  But could I just ask you this: when you say,

"my client", you are appearing only for Mr Owens?

Gallagher 20 28/4/92

MR BELL: Yes, I am, Your Honour. That is one of the

matters.

HIS HONOUR:  You have no instructions from any other member

of the Federation?

MR BELL:  No, save for Mr Devine, who is a person that

Mr Owens has been able to contact and obtain

agreement.

HIS HONOUR:  Mr Devine is one of the councillors?

MR BELL:  Mr Devine is one of the members of the council.

There may well be	one other who has similarly
agreed, but there	are no others than the three that
I have mentioned.	An attempt has been made by
Mr Owen to contact	all of the members of the
council, certainly	the one more and possibly the
two more of whom I	have spoken - - -

HIS HONOUR:  Do you regard yourself as having instructions

from Mr Devine?

MR BELL:  I regard myself as having instructions for

Mr Devine and desire to announce an appearance on his behalf, but I do not have any instructions from

anybody else. For that reason, I invite the Court

not to make any representative orders because my

client simply has no idea what people other than

Mr Devine think about the prospect of him

representing their interests. Indeed, I am

instructed to tell the Court that Mr Owens himself

certainly does not consider that he shares the same

interest as every other member of the council in

relation to the matters at issue. So he himself

does not feel able to say to the Court that he

feels that he has the same interest as everybody

else. But, Your Honour, these are interlocutory

proceedings and I do not want to waste the Court's

time with that at this stage.

The second procedural question is that when

the time comes, we would want to say that the

proper defendants in this action are in fact the

members of the organization, which is the legal

person which the plaintiff must sue. The plaintiff

has sought to obtain relief only against Mr Owens

on behalf of the federal council. Those

individuals are but some of the parties to the

contract which forms the basis of the rules which

the plaintiff seeks to enforce, yet he has sought

only to proceed against the federal councillors,

excluding Mr Cummins. But again, that is a

procedural matter on which I do not seek to rely at

the moment.

Gallagher 21 28/4/92

HIS HONOUR: That is a problem arising out of the

unincorporated nature of the federation.

MR BELL:  Indeed, and it would be a long case if I were to

deal with that now. The third matter, Your Honour,

and it follows from the second, is that Mr Cummins

certainly should be a party to these proceedings.

He is a member of the organization first, and

second he is a member of the federal council and

has the same interest as every other member of the

federal council, but enough has been said about

that already and I, with respect, agree with

Your Honour's intention to go to the fundamentals

of the interlocutory application and try to

determine the application on that basis.

But it follows from what I have just said that

because of the fact that there are two Victorian
residents on both sides of the record if my learned
friend Mr Borenstein's application, which my client the Court may very well not have ju~isdiction the procedural matters, Your Honour.

Now, the fundamental submission I make is that

there is no serious question to be tried in

relation to the claims that the plaintiff makes.

Now, the first of the claims that is made is that

it is necessary to adopt a staged process under the dismissal from office rule, and that submission, in

my respectful submission, is plainly wrong and can

be demonstrated to be so by reference to the rule

itself.

Your Honour eloquently expressed the way that

the submission was put, and so I will not do more

than ask Your Honour to bear the way in which it

has been put in mind, and that way relies upon an

alleged link between rule 24, which has got to do

with the laying of charges against members in

relation to the matter specified in the rule, and

rule 28, which has got relevantly to do with the

removal from office of members of the federal

council, et cetera. There is no link, in my

submission. That is plain from rule 28(c)(i) where

the things that the person must be found guilty of
are set out in list. Those things are:

misappropriation of the funds of the Federation;

a substantial breach of the rules of the

Federation; gross misbehaviour; gross neglect of duty, and then there are other things: has ceased,

according to the rules, to be eligible to hold the

office.

Now, if my learned friend's argument that

there is a link between this rule and rule 24 were

correct then, of course, one would have to see that

Gallagher 22 28/4/92

all of the things in the list were included in

rule 24. They are not. The only thing that is is

the first, that is, misappropriation of property of funds of the Federation. The only other thing that comes close to being one of the things in the list

in rule 28 is breach of the rules. Even that is

expressed in terms in rule 28(c)(i) as being a

substantial breach of the rules of the Federation,
and that is only similarly, but not identically,

referred to in rule 24(i)(a).

HIS HONOUR: Just so that - I am sure I am seeing the rules

in their entirety, Mr Bell. Does paragraph 12 of

the statement of claim which is on page 8 - - -

MR BELL:  I am sorry, Your Honour is looking at the

statement of claim.	I am looking at the rules
themselves.

HIS HONOUR:  Yes, my question really was whether the statement of claim adequately reflects the rules.

MR BELL:  No, I do not think so. Not for this purpose,

Your Honour. Might I invite you to go to NLG3.	I
did not realize Your Honour was looking at the
statement.	You might like to - - -

HIS HONOUR:	Yes, I have NLG3.
MR BELL:	On page 19 - - -

HIS HONOUR: Wait a moment. This is not free from

complications. There is an NLG3 in the proceedings

in this Court; there is also an NLG3 in the

proposed proceedings in the Victorian Supreme

Court.

MR BELL:  I am sorry; NLG3 in the proposed proceedings.

HIS HONOUR:  Yes, all right. I have a bundle of material

which consists of NLGl through to some numbers

thereafter. It is not easy to pick this up.

MR BELL:  If Your Honour flicks through you will certainly

come across a large document in small type that

look like union rules.

HIS HONOUR:	Yes, I have that.
MR BELL:	And if Your Honour goes to page 19 of that

document, Your Honour will see that the whole of

the provision to which I am now referring - and I

was at the point of referring to 24 l(a), and I had

made the submission that:

failing to observe the Rules of the Federation

or any of them -

Gallagher 23 28/4/92

is only a similar reproduction of the being found

guilty of:

a substantial breach of the rules of the

Federation -

in 28(c)(i) which is on, incidentally, page 22 of

the rules of the organization.

HIS HONOUR:  So you are saying, Mr Bell, are you, that

matters such as misappropriation, gross

misbehaviour, or gross neglect of duty, are not

matters which attract the operation of rule 24?

MR BELL:  Of rule 24, that is right. They attract the

operation of rule 28(c)(i), but they do not attract

the operation of rule 24 1 and, therefore, to

suggest that there is a need to adopt a rule 24

procedure as some antecedent to the operation of

rule 28 is, with respect, fanciful. Your Honour, I

see the time and I think I ought not to detain you

because I will not complete my submissions in two

minutes and I think it would be unfair to

Your Honour - - -

HIS HONOUR:  I think we had better adjourn until 1 o'clock,

if that is convenient to counsel.	I will hear from
you further then, Mr Bell.

MR BELL: If Your Honour pleases.

AT 10.04 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.58 PM:

HIS HONOUR:	Now, Mr Bell - - -
MR BELL: Your Honour has had a demanding day.	I will try

to make it as little more demanding as I possibly

can. Your Honour will recall that I was submitting

that apart from the procedural problem which the

application and how it has got to this place, that

there is a fundamental misconception in the

submission that has been put to Your Honour about

the operation of the rules. I had put to

Your Honour that the submission made by my learned

friend, as it was made, depended upon an alleged link between rule 28(c)(i) and rule 24 1 and the

purpose of my submissions was to persuade

Your Honour that there was no link and that

Gallagher 24 28/4/92

therefore that argument could not possibly succeed.

I do not wish to repeat the argument, Your Honour, because I was at the point of concluding it and I simply remind Your Honour of the submission itself.

In aid of the argument, Your Honour, can I

refer you to the Industrial Relations Act and, in

particular, to the section of the Act providing for

the content of rules of organizations.	Of course,
this is an unregistered organization or

disregistered organization, but the rules have

their origin in a registered organization and were

made in conformity with the Act. The present

section in relation to rules is relevantly
section 195(l){c), which provides that:

The rules of an organisation ..... may provide for the removal from office of a person

elected to an office in the organisation only

where the person has been found guilty, under

the rules of the organisation, of:

(i) misappropriation of the funds of the

organisation;

(ii) a substantial breach of the rules of the

organisation; or

(iii) gross misbehaviour or gross neglect of

duty;

or has ceased, under the rules of the
organisation, to be eligible to hold office.

Now, in my submission, it is clear that

section 28 l(c) of the rules was introduced in the
rules in conformity with that section of the Act as

it relevantly then was and has not been in any way

amended, whereas rule 24 is concerned with a

different subject-matter entirely. That suggests

strongly that section 28 of the rules has a free

rule 24. standing operation and is in no way dependent on Lastly on that subject, Your Honour, can I

refer you to Cains v Jenkins the decision of

Justice Northrop at first instance reported

(1979) 46 FLR 278 and of the Full Bench - I think

is the correct description of the Federal Court -

it is a Full Court decision of Justices Sweeney,

St John and Keely, (1979) 42 FLR 188.

HIS HONOUR:  You are giving me both references - both the

primary judge and the Full Court.

MR BELL: Yes, I am, Your Honour. This was a case where,

reading from the headnote of the judgment of the

Gallagher 25 28/4/92

judge at first instance, the claimant was the

secretary - that is 46 FLR 278 - - -

HIS HONOUR:  The numbering of the appeal volumes do not

suggest that this was an appeal from that decision.

MR BELL: Yes, that is true, Your Honour, because they are

reversed in sequence, but I think the reason is

that it is not possible to understand the appeal

judgment adequately without reference to the

judgment at first instance and the dates.

HIS HONOUR:  At any rate, we are talking about the same

case, are we?

MR BELL: Yes, it is the same case, Your Honour, and I need

not trouble you with the sequence but the claimant

was the secretary of the Victorian branch of the

association; he was charged with offences, he was

found guilty of the charges and dismissed from

office of secretary, and it was submitted that
there had been a breach of the rules of natural

justice on the basis of bias.

Your Honour, this is similar in the instant

case because the claimant is the secretary of the

relevant union. He was charged with offences for

which dismissal is one of the penalties that might

be imposed. The rule, Your Honour, is precisely

the same and the rule is set out in the judgment of

the Appeal Court to which I wish to take

Your Honour, at 42 FLR 191, and I will not read it

to Your Honour. I do point out that at 191,

Justices Sweeney and St John speak of the relevant

rule in that case as complying with

section 133(l)(f) of the Act which is the

submission I have just made to Your Honour about

the instant rule.

In that case, Your Honour, contrary to the

submission made by my learned friend about the

manner in which charges of this kind should

proceed, the summons to show cause was issued and

the relevant organ of the union decided the
question of guilt itself and then went on to decide

the question of penalty in the one hearing in

accordance with the observation made by Your Honour

from the Bench during my learned friend's

submissions. There was no splitting of the case in

the manner argued by my learned friend.

On the question of what should be done by way

of penalty after a finding of guilt is made, decided that there was no breach of the rules of natural justice in this case because an opportunity

to address on penalty was given, and it is to be

Gallagher 26 28/4/92

apprehended that that is precisely what will happen

in the instant case so that consequent upon a

finding of guilt, if there be one, the issue of
penalty will be addressed by the federal council of

the union.

Now, all that, Your Honour, is thoroughly

consistent with my submissions as to the way in

which the instant rules operate, and support my

submission that there is no serious question to be

tried in relation to that claim made by my learned

friend.

The second claim made is that the summons is

defective. Can I remind Your Honour what was not

submitted. It was not submitted that the

particulars are inadequate; it was not submitted

that the plaintiff does not know that with which he

is charged. What is submitted is that there are

technical problems with the documents and they were

identified as being three in number. The first was

that the summons did not actually say, "Show cause

why you should not be removed", in accordance with

the words used in rule 28(l)(c). The second is

that the summons, itself, did not specify the

grounds, and the third is that there were two

spelling errors, one numbering error, that is, that

the summons referred to 28(c)(ll) instead of (ii), and the word "resolution" was used in the singular

sense in circumstances in which it should have been

plural.

Now, Your Honour, this is not a case where

Your Honour is dealing with a pleading summons in a

court, this is a case dealing with rules of a

domestic tribunal relevantly, and Your Honour will

adopt, in my submission, an approach that is not

technical in relation to the submissions that have

been made. If authority be needed for that
proposition I might refer Your Honour to the case

of Re La Trobe University; Ex parte Wild, (1987)

VR 447. That is a judgment of the Visitor of La

what appears at the bottom of page 447 that

Trobe University, His Excellency the Governor the

Chief Justice Young was the person appointed by

His Excellency to assist him in the case, and the

judgment I suggest, with respect, can be read as

the Chief Justice's.

At 458 to 459, beginning at point 7, this is

said in relation to what is needed by way of

particulars for charges:

Of course natural justice requires that the charge brings to the notice of the petitioner the substance of what is alleged against him

Gallagher 27 28/4/92

and the present charge fulfils that

requirement.

Then the Medical Board case is cited and

Justice Lowe is cited as saying this:

"One is not dealing here with a legal tribunal

and legal precision is not required in the

statement of the charge. When dealing with a

tribunal of this kind all that is necessary is

that the substance of the charge shall be

plainly brought home to the person charged.

was invited to dismiss a charge against	And that in the context of a case where the Visitor gross misconduct and matters of that kind,
relevantly indistinguishable in the instant case, in my submission.

Now, in the present case, the summons, which

is the letter to the plaintiff dated 13 April 1992,

together with its attachments, being the letter to

Mr Owens from Mr Cummins, dated 10 April 1992 and

the resolutions giving particulars of particular

matters should, in my submission, all be read

together. My learned friend conceded and, with

respect I submit properly conceded, that the

documents could be read together. Once that

concession is made, in my submission, all three of the objections to which my learned friend referred

in his submissions must fall away, because on any

fair reading of the documents read together, the

plaintiff knows very well that he is required to

attend at the meeting to show cause why the charge

as particularized in the document headed

resolutions should not be found proven against him.

For those reasons, Your Honour, I submit that

the second claim is not even of such strength as to

suggest that there is a serious question to be

tried in relation to it and I submit that

Your Honour ought to refuse the injunction on that
ground alone.	If Your Honour were minded to

conclude that there was a serious question to be

tried, in my submission, the balance of convenience

does not favour the grounding of an injunction in

the instant case; the balance of convenience, in my

submissions, favours the continuation of the

proceedings so that the matters at large between

the plaintiff and the federal council can be

determined; it is in the plaintiff's and in the organization's interest, in my submission, that

there be as speedy a conclusion of these matters as

can possibly be achieved and that will not be achieved by the issuing an injunction by this

Court, but rather will leave the matters open,

Gallagher 28 28/4/92

which will do nothing for the viability or
efficiency of the organization or indeed the
reputation of the plaintiff, which my learned

friend seeks to protect.

There are other matters relating to balance of

convenience, Your Honour, that will be relevant

which are obvious. I simply submit that even if

Your Honour were satisfied as to the existence of a

serious question, you should let the proceeding go

ahead and permit the applicant or the plaintiff to

issue such proceedings as he is advised after the
error for which my learned friend contends is

continued. For those reasons, Your Honour, I

submit that you should refuse the injunction

requested.

HIS HONOUR:  Thank you, Mr Bell. Mr Borenstein, I have kept

you in the wings, as it were, and I have not yet

announced any decision in regard to the application

to add your client as a defendant, but could I just

ask you this: if I were to take that course, is

there anything that you wish to add on matters of

substance to what Mr Bell has said?

MR BORENSTEIN: There would only be two small references

that I would seek to give Your Honour which are

supportive and elaborative of the submissions which

my learned friend, Mr Bell, did make.

HIS HONOUR:  What are they, Mr Borenstein?

MR BORENSTEIN: In the Cains v Jenkins case, in the decision

at first instance before His Honour

Mr Justice Northrop, 46 FLR, at page 291 at about

point 7 of the page, the beginning of the last

paragraph, His Honour directly addresses the

procedure.	Your Honour will see there that he
says:

Leaving aside the questions of whether

Mr Romanin should have been allowed to

represent the claimant -

that is, his solicitor -

and whether the committee should have

exercised a discretion as to the penalty to be

imposed, counsel for the claimant did not, and

in fact could not, make complaint against the

procedures adopted by the committee in the

hearing and determining of the charges made

against the claimant.

I simply submit that is probably the clearest

statement in the two judgments on that score.	The
second reference that I would seek to give

Gallagher 29 28/4/92

Your Honour is in relation to the situation where
Your Honour may find, though I would urge

Your Honour not to find, that there is a serious question to be tried on either of the limbs of my learned friend's argument.

I refer Your Honour to a decision of the Full

Court of the Federal Court of Bullock v The

Federated Furnishing Trades, (1985) 5 FCR, and in

the judgment of His Honour Mr Justice Woodward,

with which the other two members of the court

agreed. At page 471 going across to page 472,

His Honour deals with the weighing up process of grant of interlocutory injunctions.

The only point I seek to extract from that

which appears at page 472, in about the middle of

the page, is that it is suggested that the
appropriate course is to determine, if there is a
serious question to be tried, if it is stronger,

then it will require less by way of balance of

convenience to tip the court in favour of granting

the injunction, whereas if the serious question to

be tried is a weaker one, then more by way of

balance of convenience would be required in favour

of the plaintiff.

Apart from that, the only other submission

that I would have sought to make, Your Honour, is
that on the balance of convenience my learned

friend Mr Hammond's only point was concern for

Mr Gallagher's reputation and my submission would

be that Mr Gallagher's reputation continues to be

damaged while the charges are outstanding and that

the minimization of the damage to his reputation is

best served by having the federal council deal with

the charges as soon as possible. They are the only

matters, Your Honour.

HIS HONOUR:  Thank you, Mr Borenstein. Mr Hammond.

MR HAMMOND: If Your Honour pleases. In response to my

learned friends, we submit there is a serious

question to be tried with respect to the summons.

I do not propose to rehearse those arguments again.

We submit that this is not simply a case of a minor

transgression that is being alleged. It is not a

case of plagiarism, for example, that was the case
in the La Trobe University case.

The principal allegations against Mr Gallagher are those of misappropriation, theft, and we submit

that this Court would be most particular - as would any court - on the substantive aspects of a summons

which makes serious allegations of that nature. It

is not a matter that can be simply brushed to one

side. In my respectful submission, Your Honour, so

Gallagher 30 28/4/92

far as the summons is concerned, we submit that the Court be most particular to ensure that the summons

fulfilled the obligations under the rules.

My learned friend, Mr Bell, submitted there

was no link between rules 24 and 28(c)(i). If I

could take Your Honour, very briefly, to 28(c)(i),

which is on page 22 of the rules, Your Honour would

observe that there are a number of grounds:

guilty of misappropriation ..... a substantial

breach of the Rules of the Federation, or

gross misbehaviour or gross neglect of duty -

In my submission, each of those can come

within the head, certainly the first three without

any doubt, within rule 24.	I take Your Honour to
rule 24.	We submit it is beyond peradventure that

misappropriation would be comprehended by

rule 24 l(i). So far as substantial breach of the

rules is concerned, that is comprehended by

24 l(a). So far as gross misbehaviour is

concerned, there are grounds - misbehaviour is

provided for in certainly 24 l(g), and one may say

that if one is found guilty of a number of the

other grounds set out in 24 1, that may amount to

gross misbehaviour, for example, giving false or
misleading information to the federal council,

obstructing the federal council and the like.

So far as the gross neglect of duty, I have problems with that; I have to concede that.

Unless one can look at 24 1 and say that it is

possible there would be a gross neglect of duty if

one, for example, knowingly failed to observe. any

resolution of the federal council, et cetera - that

is 24 l(b) - or gave false or misleading

information. We submit it could be comprehended,

but I recognize so far as gross neglect of duty is

concerned, there is more difficulty. One has to

have a more strained interpretation, but we submit

it is quite possible that that could fall within

one or more of 24 1, Your Honour.

In my submission, it is instructive, if one goes to the instant case rather than looking at a

hypothetical case, if one goes to the resolutions

that are purportedly relied upon in NLG2 one can

see that each of the resolutions fall within

rule 24, in my submission.

Can I take Your Honour to NLG2.

HIS HONOUR:	Yes, I have that.
MR HAMMOND:	The first page headed, "Resolutions",

Your Honour:

Gallagher 31 28/4/92

The Victorian Branch Executive Committee, upon

receiving the report dated 3rd March 1992 -

Does Your Honour have that?

HIS HONOUR:  I thought I did. It is only a matter of

finding it, Mr Hammond. I have it, thank you.

MR HAMMOND:  The first resolution:

That the Federal Council remove from office,

the General Secretary of the Federation, on

the ground that he is guilty of gross

misbehaviour.

Let us look at the "Particulars". The first

particular (a) is that he failed to comply with the

resolution of the federal management committee.

That is comprehended by rule 24 l(b).

We go to (b). He -

improperly and without authority instructed

Australia Post to redirect all mail.

We would submit that would be comprehended by

rule 2 4 1 ( d) .

Particular (c):

That the General Secretary of the

Federation ..... has improperly procured and

without authority, has retained custody and

control of, Victorian Branch property.

We would submit that would come within 24 l(i).

Particular ( d) :

That from 12th February, 1992, the General

Secretary ..... has failed to comply with the

following resolution -

a particular resolution. We submit that comes

within 24 l(b). Particular (e):

That on or about 12th February, 1992, the

General Secretary ..... improperly and without

authority, intercepted and diverted

correspondence -

we would submit that would come under 24 l(d).

Then we go to resolution number 2, Your Honour:

"That the Federal Council remove from office,

the General Secretary of the Federation, on

the grounds that he is guilty of substantial

breach of Rule ll(e) -

Gallagher 32 28/4/92

and the particulars are set out thereunder, namely,

he failed to comply with a resolution. That is

comprehended by 24 l(b), we submit.

If we turn over to the next page, Your Honour,

to the third resolution, but numbered 1 on that

particular page:

"That the Federal Council remove from office,

N. Gallagher, the General Secretary of the

Federation, on the grounds that he is guilty

of misappropriation of the Funds of the
Federation".

That falls squarely within 24 l(i). Similarly, the resolution on the second page, that is another misappropriation allegation.

So, if one looks at the facts of this case, we

submit, Your Honour, that each of the particulars

relied upon do fall fairly and squarely within

rule 24. We would submit that, at the very least,

if the person is to face the possibility of being

removed from office, and one can at the very least

see a confluence of matters between rule 24 and

rule 28, then they are at the very least entitled,

we would submit, to be heard first on the charge

under rule 24.

There is a very good reason for that, and I

adverted to it very slightly in my principal

submission. Under rule 24 8 there is a right of

appeal, such right which is being exercised by already. There is no right of appeal, as best I

can apprehend, from a removal under rule 28.

HIS HONOUR:	Which rule do you say it is? Rule 24?
MR HAMMOND:	Rule 24 8, Your Honour.  It is on page 20 of

the rules. We would submit, Your Honour, that it

would be a strange thing indeed if one could be	deprived, as it were, of that opportunity of	appeal, certainly in circumstances where the
charges which are the subject of the federal
council summons can fairly be said to fall within
rule 24.

HIS HONOUR:  Who would the appeal be to?

MR HAMMOND: Well, it depends who hears it, Your Honour.

HIS HONOUR: Well, assuming it was heard by federal council,

even under rule 24.

MR HAMMOND: Well, one would assume, Your Honour, that in

these circumstances the appeal from the - if it is

Gallagher 33 28/4/92

heard by the federal management committee, could be
heard by the federal council, and it may well be

possible that if they direct that it go to the

federal council, then one loses that right of

appeal - does not have a right of appeal, I should

say.

HIS HONOUR: Unless there is some overriding power in the

membership at large.

MR HAMMOND:	To appeal to the membership at large, yes.
HIS HONOUR:	Yes.

MR HAMMOND: If I could just have a moment, there is one

particular rule - - -

HIS HONOUR:  Mr Bell and Mr Borenstein, if there is a

particular rule that bears on this, you might

assist us. I take the silence to be an indication

that there is none.

MR BELL:	No, there is none.
MR HAMMOND:	I am indebted to Your Honour. There is one

particular rule that may be of some assistance in

the light of what fell from Your Honour. is at page 7, Your Honour:

The supreme control of the Federation is

vested in the members of the Federation. the members shall be exercised on their behalf

by the Federal Council -

so -

HIS HONOUR:  I suppose it is not all that surprising, is it,

within a domestic tribunal, that there is no right

of appeal once the matter has reached the ultimate

managing body however it reaches there, whether it goes directly or goes via some subsidiary body within the organization.

MR HAMMOND:	Yes, Your Honour.
HIS HONOUR:	I mean, if there is a breach of natural justice or some error of law, then presumably there are
remedies outside the framework of the rules of the organization anyhow.

MR HAMMOND: Well, if there was a case to be made out, one

would approach the courts. But what we say,

Your Honour, is that there is nevertheless a

serious question to be tried on that point. At an

interlocutory stage, we submit, as long as

Gallagher 28/4/92

Your Honour is satisfied on the two points - we do

not rest our case solely on the sequential

procedural point, we do also rely on the defect in
the summons and, in particular, to the lack of

reference of the particular resolutions that are

relied upon and, I have said on a number of

occasions that they are very serious allegations

that are being made.

Your Honour, we submit that the balance of

convenience does, in fact, still favour

Mr Gallagher, notwithstanding what has fallen from

my learned friends and, in particular, my learned

friend Mr Bell. The affidavit material reveals

that this is his sole occupation - I will rephrase
that: this job provides his sole income, some

properly $400 a week net. He has the use of a

motor vehicle which he can use for Federation

purpose and private purposes. If the hearing is

allowed to proceed on what, we submit, is defective

material and if - as we fear, otherwise we would

not be here - Mr Gallagher would be removed from

office, he will have grave financial and practical

impedimenta in getting back into the position he

occupied before. He will have no other source of

income at that point of time nor even, it would

appear, a motor vehicle.

We would submit that Your Honour is entitled

to look at this as more than a mere domestic
tribunal; this is a national union of persons and

we would submit that Your Honour is entitled to consider the difference between being inside an

organization or a room with your back against the

door where people are trying to get you out, and

being outside behind a closed door trying to get

back in and, we submit, that there are grave

problems for Mr Gallagher in the event that the

balance of convenience is decided against him.	We
submit the only balancing fact that my learned friends rely on is Mr Gallagher's reputation.
Well, with the greatest of respect, we would ask	the Court to listen to what Mr Gallagher says about
the time that his reputation is under challenge and
not my learned friends, that he be the best judge of how quickly he would like these matters resolved. He certainly wants them resolved quickly
but he does not want them resolved, Your Honour, on
the basis of defective material.
Finally, Your Honour, we respectfully submit that so far as my learned friends rely on certain authorities that relate to other rules, this
particular case requires Your Honour to look at the particular rules before Your Honour and to form a
view based on those rules and one can, in our submission, get limited assistance from looking at

Gallagher 35 28/4/92

other cases with other facts. Subject to any questions that Your Honour may care to ask I -

HIS HONOUR:  Thank you, Mr Hammond.

MR HAMMOND: If the Court pleases.

MR BORENSTEIN: Might I just emerge from the wings for a

moment to indicate that, depending on what

Your Honour intends to do in terms of making an

order as my learned friend Mr Hammond seeks or not,
there is a matter in terms of the form or the

wording of the order which is in the summons which

I would seek to address Your Honour on if that need

arises.

HIS HONOUR:  You had better wait for the result first,

Mr Borenstein.

MR BORENSTEIN: Yes, I propose to do that, but I just wish

to flag it, that is all.

HIS HONOUR:  Yes, if it is necessary to speak to the form of

any order that is made, of course, you will have

the opportunity to do so.

MR BORENSTEIN:	Thank you.
HIS HONOUR:	It is clearly desirable that I deal with this

summons forthwith, given the shortness of time

before the Federal Council of the Federation meets

tomorrow.

The plaintiff has issued proceedings in this

Court against Ronald George Owens on his own
behalf, as well as on behalf of and as representing

all the members for the time being of the Federal

Council of the Australian Building Construction

Employees' and Builders Labourers' Federation,

except the plaintiff and John Cummins. I shall say something about the position of Mr Cummins later in

these reasons.

The Federation is an unincorporated body. The

plaintiff is its general secretary. In these
proceedings the plaintiff seeks a declaration that

a letter from the defendant Owens, as president of
the Federation, accompanied by attachments,
purporting to be a summons against the plaintiff

under the rules of the Federation, is of no effect.

The summons calls on the plaintiff to appear

before the Federal Council at Adelaide on

29 April - that is tomorrow - at 10.30 am to answer

charges, which are particularized in various
resolutions of the executive committee of the

Victorian branch of the Federation, and to show

Gallagher 36 28/4/92

cause why he should not be removed as general

secretary.

By a summons returnable this morning, the

plaintiff seeks an injunction to restrain the

members of the Federal Council from acting on the

summons to which I have already referred until the

hearing and determination of the proceedings. It

should be noted that the plaintiff seeks, as I

would understand it, in any event: that any

further proceedings in the action be remitted to

the Supreme Court of Victoria pursuant to s. 44(1)

of the Judiciary Act 1903 (Cth).

The plaintiff intends to bring proceedings in

the Supreme Court of Victoria of a like nature in
relation to action taken against him as
state secretary of the Victorian branch of the

Federation.

By paragraph 17 of the statement of claim, the

plaintiff pleads that the summons served on to him

is in breach of the rules of the Federation. That

pleading is particularized in this way:

(a) The purported summons was served prior

to:

(i)       the Plaintiff having been found guilty of misappropriation of the funds of the Federation, a substantial breach of the Rules of the Federation, or gross

misbehaviour or gross neglect of duty,

or had ceased according to the Rules to
be eligible to hold the office of

General Secretary;

(ii)     any hearing or determination of any

charge brought by any member against the

Plaintiff pursuant to Rule 24 of the

Rules.

(b)

Further or alternatively, contrary to purported summons did not specify the

ground or grounds upon which it was

proposed to consider the Plaintiff's

removal from office.

The statement of claim continues, in paragraph 18:

By reason of the matters set out in

paragraph 17 hereof the purported summons is

invalid, void and of no effect.

Mr Bell, on behalf of Mr Owens and one other

member of the Federal Council, argues that the

Gallagher 37 28/4/92

statement of claim shows a misunderstanding of the

way in which the rules of the Federation are

structured. He draws attention to the distinction

between rule 24 and rule 28, pointing out that the

conduct particularized in rule 28 (c)(ii), that is

the conduct which can give rise to proceedings

under that rule, corresponds directly with

s.195 of the Industrial Relations Act 1988 (Cth),

although the Federation itself is no longer a

registered organization under that Act.

That submission seems to me to be very

persuasive and I am also persuaded that what
rule 28 contemplates is not the two staged

procedure for which Mr Hammond has argued but,

rather, a procedure in which an officer of the Federation is called upon to show cause why he

should not be removed from office by reason of what

is described as his guilt. The rule contemplates

does the Council then proceed to consider the

that the question of guilt is dealt with by the

question of removal from office. I am of the view

that rule 28 contemplates the procedure which is

envisaged by the summons addressed to the

plaintiff, namely, a proceeding of the Federal

Council at which the question of guilt and removal

from office will be determined at the same time.

There is no complaint that adequate notice of

hearing has not been given.

There is a further complaint that the

allegations against the plaintiff are not

sufficiently particularized. I am not persuaded

that there is any real substance in that complaint.

It seems to me that, although what is described as

a summons comprises several documents, they are to

be read in their entirety and that, when they are
read in their entirety, they are in proper form and
bring home to the plaintiff with sufficient

particularity the complaints which are made against

him.

For these reasons, I am not persuaded that there is a serious issue to be tried. Furthermore,

I am not satisfied that the balance of convenience
favours granting the injunction which the plaintiff
presently seeks. If the plaintiff's arguments as

to the ineffectiveness of what is proposed for the

meeting of the Federal Council tomorrow prove good,

then any action taken adversely to him at that

meeting will prove ineffective. There has been no

suggestion that that would not be the case.

It may be that, if in later proceedings it is

shown that any action adverse to him is not

effective, he may nevertheless suffer some harm,

Gallagher 38 28/4/92

but I am not persuaded that there is any harm

likely to be suffered of an irreparable nature.

The balance of convenience does not favour granting

this injunction. So on both what might be

described as the usual grounds upon which the
question of interim relief of this sort is
considered, namely a serious issue and the balance
of convenience, I am not satisfied that an
injunction is appropriate in this case.

I should, however, say something about the question of the position of Mr Cummins, for whom

Mr Borenstein sought to appear. I have been

referred to the decision of this Court in Watson

and Godfrey v Cameron, (1928) 40 CLR 446. I have

not had an opportunity to examine that case closely

or to see whether there are any other decisions

that bear upon the matter. I am not clear in my

own mind as to whether the decision turned upon the

presence of one defendant who resided in the same

State as one of the plaintiffs. Some of the more

general observations appearing in the judgments

indicate that the presence of residents from the

same State on each side of the record is enough to

deprive this Court of jurisdiction, even though

there would be a number of residents from other

States. Certainly there is a warning in the

judgment of Mr Justice Isaacs against the selection

of parties as a means to confer upon this Court

jurisdiction which it would not otherwise have.

But these are matters which I find it unnecessary

to determine because, for the reasons I have

already given, I am of the opinion that the interim

relief sought should be refused. To that extent,

the summons therefore will be dismissed.

HIS HONOUR:  Now, that still leaves these proceedings on

foot in so far as a remitter is sought.

Mr Hammond, do you want any orders made in that

respect at this stage, or do you want the matter

simply stood over?

MR HAMMOND: Perhaps it would be more convenient,

Your Honour, that the matter be stood over and any

orders sought could be sought in Victoria. I think

it is fair to say that my learned friend's clients

would not have had the opportunity to put in any

material. Could I just talk to my learned friend?

HIS HONOUR: Well, as you are doing it, you might bear in

mind that the summons seeks, in paragraph 1

injunctive relief, and then in paragraph 2 a

remitter of the proceedings, and in paragraph 3 the

time for service of the summons be abridged. Well,

obviously I would grant that in any event. But it

may be that all that is necessary to be done at

this stage is to dismiss paragraph 1 of the summons

Gallagher 39 28/4/92

and stand over paragraph 2. But if there is

nothing more sought from this Court, then maybe

some other form of order.

MR HAMMOND:	Yes, if I may just have a moment.
HIS HONOUR:	Take time.
MR HAMMOND:	Your Honour, my learned friend, Mr Bell, is not

in a position to consent to it being remitted to

the Supreme Court of Victoria, and nor have my

learned friend's clients have really had any

opportunity of putting material in on that
question. Perhaps it would be more convenient

therefore, that the proposal of Your Honour be

adopted, namely, that paragraph 1 of the summons be

dismissed; paragraph 2 be stood over or adjourned

sine die and I cannot remember paragraph 3 - - -

HIS HONOUR: That is the abridgment of service. There is no

problem with that. Mr Bell, do you want to be

heard on that point now?

MR BELL:  No, I do not oppose the orders that are proposed,

Your Honour.

MR HAMMOND:  Your Honour, just as a matter of formality, due

to the time constraints we are unable to file the

originals of two of the affidavits.	By leave, if I
may file those - - -

HIS HONOUR:	You may do so.
MR HAMMOND:	For the record, they are the affidavits of Alan

Foster sworn 27 April 1992, and the affidavit of

Ralph Manno sworn 27 April 1992, together with the

exhibits thereto.

HIS HONOUR: 

There will be an order that the time for

service of the summons dated 24 April 1992 be
abridged to enable the summons to be heard today.

Paragraph 1 of the summons will be dismissed. Paragraph 2 of the summons will be adjourned sine die with liberty to apply on seven days notice.

MR HAMMOND: If Your Honour pleases.

MR BORENSTEIN:  Your Honour, again I emerge from the wings.

I did not hear Your Honour rule specifically on the

application of Mr Cummins to be joined as a

defendant in the proceedings. Your Honour did make

some comments about the applicability - - -

HIS HONOUR:  I did not rule on that matter.

Gallagher 40 28/4/92

MR BORENSTEIN:  I wonder what Your Honour's intention is in

relation to that. If the matter is to be sent back

to the supreme court - - -

HIS HONOUR: It is not at this stage. Paragraph 2 simply

stands adjourned sine die. But I agree that if

this is implicit in what you are saying,

Mr Borenstein, that before the matter goes any

further the question of your client's joinder, and

its implications for the jurisdiction of this

Court, will need to be resolved, all that I have

done is to deal as I was able to deal with the

summons for interlocutory relief without having to

determine that matter.

MR BORENSTEIN:  I am happy to simply recognize that our

application is not determined one way or the other

and is - - -

HIS HONOUR:  No, it is not, and it remains as alive as it

was early this morning.

MR BORENSTEIN:	Thank you, Your Honour.
MR BELL:	Your Honour, sorry to interrupt, need I apply for

costs?

HIS HONOUR: That is a matter for you, Mr Bell.

MR BELL:  I do apply for costs. The only reason I asked

that question, Your Honour, is that in the Federal

Court, if we were successful in an interlocutory

case, they would be ours in the cause and - - -

HIS HONOUR:  Yes, the High Court rules I do not think

they - - -

MR BELL:  I do not think they are. I apply for costs.

HIS HONOUR:	- contain such a provision.
MR BELL: Yes, I apply for costs, Your Honour.
HIS HONOUR:	We are not caught by any Industrial Relations Act type provisions here, this is a straight
forward action in the High Court?
MR BELL:	No, Your Honour, this is an action founded in

contract in this Court's jurisdiction, and I apply

for costs.

HIS HONOUR:  Any reason why Mr Bell should not have costs,

Mr Hammond?

MR HAMMOND:  I cannot resist that, Your Honour.

Gallagher 41 28/4/92

HIS HONOUR:  Mr Borenstein, I suppose you are delighted to

have some costs too?

MR BORENSTEIN:  I would, Your Honour, but perhaps in view of

the uncertainty of my client's status, perhaps they

should be reserved.

HIS HONOUR:  I think that is the appropriate course.

MR BORENSTEIN: Yes, Your Honour.

HIS HONOUR:  So there will be an order that the plaintiff

pay the costs of Mr Owens, and I will reserve the

question of Mr Cummins' costs of the proceedings

today.

MR BORENSTEIN: If Your Honour pleases.

MR HAMMOND: If Your Honour pleases.

MR BELL: If Your Honour pleases.

AT 1.47 PM THE MATTER WAS ADJOURNED SINE DIE

Gallagher 42 28/4/92