Gray, Rodney v Australian Liquor Hospitality and Miscellaneous Workers' Union
[1998] FCA 1300
•31 JULY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – appeal - application for extension of time for institution of an appeal from the decision of a single judge dismissing an application, pursuant to Div 7A of Pt IX of the Workplace Relations Act 1996 (Cth) (“the Act”), made by Committee of Management of constituent part of respondent union (“the Union”) for a ballot for withdrawal from amalgamation – appeal filed thirteen days late – application for injunction pending the hearing and determination of the appeal restraining respondent the Union from giving effect to any rules of the Union which would result in section of union ceasing to exist.
Workplace Relations Act 1996 (Cth): Div 7A Pt IX
s 253ZJ, s 253ZL, s 253ZM, s 253ZP
Workplace Relations and Other Legislation Amendment Act 1997 (Cth): s 253ZJA
Workplace Relations Regulations: reg 98J, Form 11A
Federal Court Rules: O 35 r7(1)
Genetics Institute, Inc v Kirin‑Amgen, Inc (No 4) (unreported, Federal Court of Australia, Heerey J, 23 July 1998) - considered
Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 - considered
RODNEY GRAY v AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION
VG 308 of 1998
BLACK CJ, HEEREY & GOLDBERG JJ
MELBOURNE
31 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 308 of 1998
ON APPEAL FROM THE HONOURABLE JUSTICE MARSHALL
BETWEEN:
RODNEY GRAY
AppellantAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION
RespondentJUDGES:
BLACK CJ, HEEREY & GOLDBERG JJ
DATE OF ORDER:
31 JULY 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
Leave is granted to extend the time for filing an appeal against the order made by Marshall J on 4 June 1998 until and including 7 July 1998.
The application for an injunction pending the hearing and determination of the appeal be dismissed.
Note:Settlement and entry of orders is dealt with in O 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 308 of 1998
ON APPEAL FROM THE HONOURABLE JUSTICE MARSHALL
BETWEEN:
RODNEY GRAY
AppellantAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION
Respondent
JUDGES:
BLACK CJ, HEEREY & GOLDBERG JJ
DATE:
31 JULY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BLACK CJ:
I too would grant leave to appeal. Obviously each case must depend upon its own facts. Here, the applicant chose to apply to the trial judge under O 35 r7(1) and not at that stage to appeal. That choice may well be questioned but it seems to me that it was motivated by an intention, which would have been obvious to the respondent, to have the matter resolved as soon as possible.
The delay before the application to extend time for the appeal was made was not long. No prejudice has been suggested as having been suffered by the respondent. Perhaps more importantly, the respondent had at no stage any reason to suppose that the dispute between the parties in this respect was at an end. So I would extend the time for an appeal, but I would refuse the application for an injunction pending the hearing and determination of the appeal for the reasons given by Goldberg J. I agree with the orders that his Honour proposes.
I certify that this is a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black
Associate:
Dated: 31 July 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 308 of 1998
ON APPEAL FROM THE HONOURABLE JUSTICE MARSHALL
BETWEEN:
RODNEY GRAY
AppellantAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION
Respondent
JUDGES:
BLACK CJ, HEEREY & GOLDBERG JJ
DATE:
31 JULY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
HEEREY J:
I agree with the orders proposed. I agree with the reasons for judgment already delivered by the Chief Justice and Goldberg J. I would only make the qualifying remark that in my opinion it was not a reasonable course for the applicant to apply to the trial judge under O 35 r7 rather than file a notice of appeal.
I certify that this is a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 31 July 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 308 of 1998
ON APPEAL FROM THE HONOURABLE JUSTICE MARSHALL
BETWEEN:
RODNEY GRAY
AppellantAND:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION
Respondent
JUDGES:
BLACK CJ, HEEREY & GOLDBERG JJ
DATE:
31 JULY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
GOLDBERG J:
On 4 June 1998 Marshall J dismissed an application for a ballot for withdrawal from amalgamation made by the Committee of Management of the Baking Section, being a constituent part of the Miscellaneous Workers’ Division, Victorian branch of the respondent (“the Union”). The application was made pursuant to Div 7A of Pt IX of the Workplace Relations Act 1996 (Cth) (“the Act”). On 26 June 1998 Marshall J dismissed a motion brought by the applicant for an order that the order of dismissal pronounced on 4 June 1998 be varied or set aside. A notice of appeal in respect of both orders was filed on 7 July 1998, and by notice of motion filed on 7 July 1998 the applicant moved the Full Court for orders that:
(a)the appeal be heard as a matter of urgency,
(b)leave to extend the time for filing an appeal against the order made by Marshall J on 4 June 1998 be granted; and
(c)until the final determination of the appeal or further order, the respondent by itself, its members, its servants or agents treat as null and void and of no effect any rule of the Union whereby on 3 August 1998 the Baking Section of the Miscellaneous Workers’ Division of Victoria of the Union ceases to exist in the same form and with the same powers that it presently has, or its office holders cease to hold office, or its assets are transferred to or taken over or divested by any other branch or other part of the Union.
On 27 September 1993, pursuant to Div 7 of Pt IX of the Act, an amalgamation was effected between the Union and the Pastry Cooks, Bakers, Biscuitmakers and Allied Trades Union (“the PBBATU”). The Union was the host organisation in the amalgamation and upon the amalgamation the PBBATU was de‑registered and the PBBATU members became members of the Baking Section of the Union. There had been an earlier amalgamation between the Union and the Miscellaneous Workers’ Union. Upon amalgamation of the PBBATU and the Union, the Rules of the Miscellaneous Workers’ Division of the Union were altered to make provision for rules to apply to the Baking Section of that Division in addition to other rules applying generally within the Division. Pursuant to Rule 24 of Section 2 of the Rules of the Union applicable to the Miscellaneous Workers’ Division, divisional branches may be established in each state and territory. Further, Rule 51 of Section 2 enables sub‑branches and/or sections to be formed. Rule 1 of the Rules applying to the Baking Section provides, inter alia:
“The Victorian Baking Section shall be a section of the Victorian Divisional branch as provided by Section 2 Rule 51.
Rule 4 of the Rules applicable to the Baking Section provides for the constitution of a Committee of Management.
On 19 March 1997 the applicant filed three documents in the Industrial Relations Court of Australia, namely:
(a)an application for a ballot under Div 7A Pt IX of the Act;
(b)a formal affidavit accompanying the application; and
(c)a notice of motion returnable on 24 March 1997 seeking an order:
“That pursuant to section 253ZL of the Workplace Relations Act 1996 a vote of the members of the Baking Section of the Miscellaneous Works (sic) Division, Victorian Branch of the Australian Liquor Hospitality and Miscellaneous Workers Union be taken by secret ballot to decide whether the Baking Section should withdraw from the Miscellaneous Workers Division of the Australian Liquor Hospitality and Miscellaneous Workers Union.”
In his affidavit filed with the application the applicant described himself as a representative applicant and the application was couched in the following terms:
“We, the applicants listed in the schedule to this application, being the committee of management of the constituent members:
(a)apply for a ballot ………; and
(b)Rodney John Gray … is the resperesentative (sic) constituent member for the purpose of the ballot”.
There is set out as a schedule to the application eleven names.
The proceeding was originally listed for hearing on 19 August 1997. By this time the Industrial Relations Court of Australia ceased to have jurisdiction with respect to the application and the Federal Court acquired jurisdiction over the matter by virtue of sch 16 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).
On 21 January 1998 an amended application for a ballot under Div 7A Pt IX of the Act was filed by the applicant, together with a document entitled “Outline of Proposed Withdrawal of the Baking Section from the LHMU” (“the outline”). This latter document was required as a result of the provisions of s 253ZJA of the Workplace Relations and Other Legislation Amendment Act 1997 (Cth) which came into operation on 11 December 1997.
On 3 March 1998 the Committee of Management of the Baking Section had resolved to ratify the application filed on 19 March 1997 and to ratify and adopt the amended application filed on 21 January 1998. Apparently there was no quorum at the meeting of the Committee held on 3 March 1998. On 6 April 1998 the Committee resolved to ratify the application filed on 19 March 1997 and to ratify and adopt the amended application filed on 21 January 1998. On 15 May 1998 the results of an election for office bearers in the Baking Section became known and on 21 May 1998 the new Committee adopted and ratified the application filed on 19 March 1997 and ratified and adopted the amended application filed on 21 January 1998. On 15 May 1998 the Committee resolved further in the following terms:
“The Committee of Management hereby appoints Stephen Polhe to be the agent of the Committee of Management for the purposes of instructing the Baking Section’s Legal Advisors in respect to any matter or issue or thing arising from or in connection with the Application for withdrawal from amalgamation, being the Application filed in the Federal Court in VI 1294 of 1997, including any amendments thereof.”
The application was heard by Marshall J on 25 and 26 May 1998 and on 26 May 1998 counsel for the applicant foreshadowed a further amendment to the application and an amendment to the outline.
On 28 May 1998 the applicant made a formal application to amend further the amended application and to amend the outline. Counsel for the applicant filed in Court a document which was intended to replace schedule E to the application, schedule E being the proposed new set of rules of the proposed new organisation, “the Pastrycooks, Bakers, Biscuitmakers and Allied Trades Union, Victorian Branch (“the new organisation”). Counsel also indicated that consequential amendments would be required to be made to the outline.
Marshall J found that the original application had not been made by the applicant, Mr Gray, personally, but rather had been made by the Committee of Management pursuant to s 253ZJA(3)(c) of the Act.
Marshall J found the changes in the constitution of the Committee of Management did not effect the identity of the body for the purposes of applying to amend any application made by a differently constituted predecessor committee. His Honour’s conclusion was that the Committee meetings on 6 April 1998 and 21 May 1998 were competent to amend the application made on 19 March 1997 and were competent to ratify the amended application and outline filed on 21 January 1998.
Marshall J found that there was no evidence before the Court that the Committee had, after 21 May 1998, approved of any further changes to the application or the outline, and that only the Committee could amend the application. His Honour found that the resolution of 21 May 1998, purporting to invest power in Mr Polhe to approve amendments without reference to the Committee was an impermissible delegation to him of the function of a Committee under Div 7A of Pt IX of the Act. His Honour found that as there was no evidence of any resolution of the Committee approving any amendment to the application or the outline other than what was filed on 21 January1998, he dismissed the application for the amendment foreshadowed on 26 May 1998, and formally made on 28 May 1998, to amend the substantive application before the Court in the accompanying outline. His Honour also found that even if the Committee was validly able to appoint Mr Polhe to decide upon amendments to the application there was no evidence of any decision by Mr Polhe to decide upon any such amendments.
His Honour also found that the amended application filed on 21 January 1998 failed to comply with reg 98J and Form 11A of the Workplace Relations Regulations. Regulation 98J provides that:
“An application for a ballot under section 253ZJ of the Act must be in accordance with Form 11A and must:
(a)contain the particulars stipulated in that form; and
(b)specify a person to be the representative constituent member in relation to the ballot to receive documents on behalf of the applicant and for any other purpose specified in this Division”.
Form 11A sets out the particulars required by reg 98J. Particular number 9 provides:
“If it is proposed that the rules of the constituent part will differ, after withdrawal day, from the rules described in clause 5 above - particulars of those changes”.
His Honour found that there was no provision of these particulars as the material filed on 21 January 1998 related only to the conditions of eligibility for membership rule and a transitional rule relating to the holding of offices in a new section after withdrawal from amalgamation, and that it had been conceded on behalf of the applicant that such differences would not be the only differences.
Particular number 10 of the particulars required by reg 98JA provided:
“Particulars of the assets and liabilities of the amalgamated organisation”.
His Honour found that there was no provision of these particulars as the material filed as at 21 January 1998 related only to the Victorian branch of the Miscellaneous Workers’ Division of the Union. His Honour made no finding as to whether the outline of proposed withdrawal filed pursuant to s 253ZJA of the Act complied with that section.
On 26 June 1998 Marshall J dismissed the applicant's motion to vacate the order made on 4 June 1998 and for the applicant to have leave to file and serve a further amended application and an amended outline. The order made on 4 June 1998 had not been entered and his Honour found that he had jurisdiction to set aside the order if it was appropriate to do so: Federal Court Rules O 35 r7(1). His Honour rejected the submission that the order should be set aside on the basis that the applicant did not apprehend that the application would be dismissed should the respondent's submission on the competency of the application be upheld. His Honour did not consider that the application before the Court filed in accordance with reg 98J and Form 11A was a pleading so as to make relevant the learning in relation to pleadings. His Honour further concluded that even if the application could be regarded as a statement of claim he would not allow an amendment of it at the late stage at which amendment was sought. His Honour did not regard s 22 of the Federal Court of Australia Act 1996 (Cth) as a provision which permitted amendments to applications which were fatally flawed because of their failure to comply with mandatory requirements prior to the delivery of judgment dismissing the application. His Honour did not regard s 253ZV of the Act, which empowers the Court to resolve any difficulty which arises in relation to the application of Div 7 of Pt IX of the Act, as an appropriate vehicle to correct a failure in an application to comply with a mandatory particular. His Honour considered a failure to provide a mandatory particular was much more than a mere difficulty.
The application presently before the Full Court seeks an extension of time for instituting the appeal to 7 July 1998 being the date upon which the proposed notice of appeal was filed. In respect of the order made on 4 June 1998 the notice of appeal is thirteen days out of time. The explanation given for the delay is that the applicant was awaiting the outcome of its motion on 12 June 1998 which was heard on 17 June 1998 and in respect of which judgment was delivered on 26 June 1998.
It is submitted by the applicant that the primary judge erred in his construction of s 253ZJ(4) in holding that the requirements it imposed were mandatory and not capable of substantial compliance relying on Emanuele v Australian Securities Commission (1997) 144 ALR 359.
The reason why an injunction is sought is that the applicant contends that the Rules applicable to the Victorian Baking Section in addition to the divisional Federal Rules provided the terms of office of the Committee of Management will conclude on 3 August 1998 that assets then under the control of the Baking Section and its Committee of Management will become merged with the assets of the Union and that in general terms the Baking Section will lose its separate identity on and from 3 August 1998. It is submitted that if this situation occurs the Baking Section may no longer constitute a separately identifiable constituent part for the purposes of the application and that since the Committee of Management will no longer exist the members may no longer be able to maintain the application in their capacity as Committee members. It is said that the subject matter of the appeal may be destroyed “unless the operation of the rules is enjoined from dissolving the Baking Section and its Committee of Management on 3 August 1998”.
Leave to appeal
I would with some hesitation and reluctance grant leave to extend the time for filing an appeal. Although the time delay has not been great and although the respondent does not assert that it will suffer any prejudice if this leave to extend the time for filing the appeal is granted I am hesitant about the justifiability of the reason why the notice of appeal was not filed and served within time. In short that reason is that the applicant wanted to wait and see what would be the outcome of the motion filed on 12 June 1998. In my opinion the obviously proper course would have been to file and serve a notice of appeal within the time prescribed by the Rules. This would not involve any substantial costs and use of resources. I consider it an inadequate reason to disregard the Rules of Court, to wait and see what may be the outcome of another judgment of the Court. Particularly is this so when the motion which was brought under O 35 r7(1) was fraught with difficulty. Without expressing any view on the justifiability of the application under O 35 r7(1) it ought to have been apparent to the applicant that that motion was unlikely to succeed. As Heerey J pointed out in Genetics Institute, Inc v Kirin‑Amgen, Inc (No 4) (unreported, 23 July 1998) the discretion conferred by the Rules should be exercised in accordance with the considerations referred to by President Kirby in Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 395 where his Honour said that such discretion is:
“… to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal. It is for example, entirely inappropriate that the finality of a simple order such as was made in the instant appeal should be disturbed by such a beneficial facility”.
(See also Wentworth v Woollahra Municipal Council [1982] 149 CLR 672, Smith v New South Wales Bar Association (No 2) [1992] 176 CLR 256, 265, Autodesk Inc v Dyason (No 2) [1993] 176 CLR 300 at 309.)
Application for an injunction pending appeal
There is no doubt that the Court has jurisdiction to grant a stay of an order of a trial judge if it can be demonstrated that the subject matter of the appeal may be destroyed or the appeal may be rendered nugatory if no such order is granted: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] 161 CLR 681; Manfal Pty Ltd (in liq) v Trade Practices Commission [1990] 65 ALJR 256; Ampolex Ltd v Perpetual Trustee Company (Canberra) Limited [1996] 137 ALR 28; Re Moore Ex parte Pillar (1991) 103 ALR 11 at 15. The Court also has a broad power to make interlocutory orders under s 23 of the Federal Court of Australia Act 1996 (Cth): Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] 153 ALR 643.
However, the relief which the applicant seeks because of its nature goes further than simply preserving the subject‑matter of the appeal and will if granted have a substantial impact on the respondent’s structure post 3 August 1998. Further, it appears that if an order is granted by this Court generally in accordance with the applicant’s application, the matter will not end there and there will be a need for further orders at various stages if the applicant is to achieve the ultimate object sought to be achieved.
The structure of Div 7A of Pt IX of the Act is to provide a mechanism for a constituent part of an amalgamated organisation or a separately identifiable constituent of an amalgamated organisation to cause a ballot to be held to decide whether it should withdraw from the organisation. Section 253ZJ provides for an application for a ballot to be made to the Court. Section 253ZL provides for the Court to make an order that a secret ballot be held. Section 253ZM provides for any ballot so ordered to be conducted by the Australian Electoral Commission in accordance with the regulations. If the majority of the votes cast in any such ballot are in favour of the constituent part of the amalgamated organisation withdrawing from the organisation s 253ZP provides that on the application of the constituent part the Court must determine the day on which the withdrawal was to take effect and make relevant consequential orders. The regulations provide that unless the Court otherwise orders the ballot is to commence 35 days after the Court makes the order for the ballot and that the ballot is to close 21 days after the date of the commencement of the ballot. Thereafter the relevant electoral official is given 14 days within which to certify the result of the ballot.
Accordingly the regulations provide for a period of ten weeks from the order made for the ballot until its conclusion by way of known result. It is apparent from the evidence before the Court that the significance of the date of 3 August 1998 was well known to all parties for a considerable period of time. Indeed, even if the primary judge had made an order for a ballot on 28 May 1998, the day upon which he reserved his decision when argument was concluded, it would have been necessary unless he made a contrary order because of the time periods provided by the regulations that some form of order akin to the order sought by the applicant be made on that day.
Even if the Court was to make an order today in some way suspending the operation of the Rules in relation to the Baking Section until the determination of the appeal the matter would not rest there. If the appeal was upheld and the matter remitted to the primary judge for further consideration the applicant would be compelled to apply to the primary judge for a further order suspending the Rules in relation to the operation on the Baking Section until the determination of the application before him. Even if the primary judge made an order for a ballot at the conclusion of that hearing the applicant would be obliged to make a further application for a further injunction but it is not clear whether he would have jurisdiction nor is it clear that it would be appropriate for him to do so. I am satisfied that any application brought under s 253ZP is an application separate and distinct from the application which is the subject of the appeal before the Court.
It seems therefore that the orders sought today do not protect or preserve the subject matter of the appeal in the sense in which that expression is normally used. Those orders, even taking account of the amendments to the notice of motion, have consequences and effects going beyond maintaining what is said to be the status quo.
It is apparent from the Rules of the Union, and in particular what are called the 1998 Rules, that on 3 August 1998 there is a significant and substantial restructuring of the Union. In my view this creates insuperable hurdles for the applicant to overcome in obtaining the injunctive relief he seeks. The effect of granting an injunction in the terms sought, that is to say in general terms suspending the operation of the Rules to the extent to which they merge the Baking Section into the Union, is to inhibit the restructuring of the Union contemplated by its Rules. It is not a matter of simply suspending the operation of the Rules in relation to the Baking Section because in order to do that it is necessary for example to maintain a Miscellaneous Workers’ Division State Council and branch executive because by virtue of Rule 18A of the Rules applicable to the Baking Section it is that body which has an overriding responsibility in relation to the Baking Section. The applicant suggests in an amendment to the motion that difficulties such as this can be met by substituting for bodies with powers and in existence prior to 3 August 1998, bodies with powers and in existence after 3 August 1998. But such a substitution creates further problems in relation for example to problems of duplication of representation. The applicant then suggests further variations may be needed but acknowledges that the position achieved is not a perfect one.
Put shortly it is not a simple matter of just suspending the Rules in relation to the Baking Section or treating them as of no effect as the amendment to the motion proposes. In order to do that effectively it is necessary to impinge upon many of the other Rules which are relevant to and coming into effect on 3 August 1998. Another example of a problem which will arise is that by virtue of Rule 17 of the 1998 Rules which become effective on 3 August 1998 the supreme control vested in the members of the Union is to be exercised by the national council. The powers of the national council are such that they are inconsistent with the continued autonomy of the Baking Section. It is not therefore possible for the applicant simply to seek the preservation of the status quo so far as it is concerned because there will be a substantial impact on the rest of the Union and the provisions relate to it on and from 3 August 1998. In my opinion it is not appropriate for injunctive relief to be granted as sought having regard to the nature and the content of the Rules and the consequences which any such injunctive relief will have.
In my opinion the orders of the Court should be:
Leave is granted to extend the time for filing an appeal against the order made by Marshall J on 4 June 1998 until and including 7 July 1998.
The application for an injunction pending the hearing and determination of the appeal be dismissed.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg
Associate:
Dated: 31 July 1998
Counsel for the Applicant: Mr H Borenstein and Mr R Niall Solicitor for the Applicant: Howie & Maher Counsel for the Respondent: Mr R C Kenzie QC and Mr J Nolan Solicitor for the Respondent: Ryan Carlisle Thomas Date of Hearing: 31 July 1998 Date of Judgment: 31 July 1998
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