Hansch v Transport Workers' Union of Australia
[2000] FCA 1266
•15 SEPTEMBER 2000
FEDERAL COURT OF AUSTRALIA
Hansch v Transport Workers’ Union of Australia [2000] FCA 1266
INDUSTRIAL LAW - rule to show cause calling upon the respondents to show why the Court should not order that a resolution of the Federal Council of the firstnamed respondent of 31 March 2000 disbanding the Tasmanian Branch of the firstnamed respondent is null and void and that the firstnamed respondent be restrained from taking any steps to disband the Tasmanian Branch - whether sufficient notice had been given to members and office holders of the Tasmanian Branch of the disbandment of the Tasmanian Branch - whether, at the time of the resolution of the Federal Council disbanding the Tasmanian Branch, the Tasmanian Branch had “effectively ceased to function”- whether the question of whether the Tasmanian Branch had “effectively ceased to function” is governed by theoretical considerations of the operation of the rules of the firstnamed respondent or the practical reality facing the Tasmanian Branch including its financial viability, or lack thereof - whether, at the time of the Federal Council resolution disbanding the Tasmanian Branch, the Tasmanian Branch was financially viable.
BIAS - whether invincible bias of Federal Councillors vitiated the resolution of Federal Council disbanding the Tasmanian Branch.
CLAIM IN ACCRUED JURISDICTION OF COURT FOR PAYMENT OF ARREARS - whether the firstnamed respondent owes the firstnamed applicant payment for arrears of wages and superannuation.
Workplace Relations Act 1996 (Cth) ss208, 209, 218, 258, 259
Bramich v Transport Workers’ Union of Australia (1999) 89 IR 30, [1999] FCA 510 referred to
Bramich v Transport Workers Union of Australia (2000) 97 FCR 204, [2000] FCA 135 applied
Hansch v Transport Workers’ Union of Australia [2000] FCA 473 referred to
Re Keely; Ex parte Kingham (1995) 129 ALR 255 followed
Tanner v Maynes (1985) 7 FCR 432 applied
Cains v Jenkins (1979) 42 FLR 188 applied
Nelson v Nelson (1995) 184 CLR 538 distinguished
Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509 distinguished
Allen v Townsend (1977) 31 FLR 431 distinguished
Re McGee (1992) 41 IR 27 referred to
Hansch v Transport Workers’ Union of Australia (1998) 85 IR 310 referred to
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 applied
BARRY HANSCH, SEAN SCOTT LAWRENCE and GARRY JOHN FISHER -v- TRANSPORT WORKERS’ UNION OF AUSTRALIA and OTHERS
T 5 of 2000
MARSHALL J
MELBOURNE (HEARD IN HOBART)
15 SEPTEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T 5 of 2000
BETWEEN:
BARRY HANSCH
FIRST APPLICANTSEAN SCOTT LAWRENCE
SECOND APPLICANTGARRY JOHN FISHER
THIRD APPLICANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA, WILLIAM GEORGE NOONAN, HUGHIE JOHN WILLIAMS, ROBERT JOHN ALLAN, RICHARD DONALD MARLES, BRIAN JOHN McINTOSH, REGINALD WEARING, WAYNE MADER, TREVOR PAUL SANTI, ANTHONY SHELDON, ALASTAIR LYALL, DON CLODE, GEORGE CLARKE, JOHN MORRISON, MARK ANDREW WALKER, RONALD JAMES PORTER, ALEXANDER McEACHIAN GALLACHER, DOUG FROHER, RUSSELL PAUL WORTLEY, HOWARD SMITH, MICHAEL NEALER, JAMES McGIVERON, JOHN RAMSELL and GLENN STERLE
RESPONDENTSJUDGE:
MARSHALL J
DATE OF ORDER:
15 SEPTEMBER 2000
WHERE MADE:
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1.Paragraphs 1 and 2 of the rule to show cause granted on 26 April 2000 be discharged.
2.On the expiry of 21 days after the date of this order and subject to further order, paragraph 4 of the rule to show cause be discharged.
3.In the accrued jurisdiction of the Court, it is ordered that the first respondent pay to the TWU Superannuation Fund on behalf of the first applicant, the sum of $4,272.84 within 21 days of the making of this order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T 5 of 2000
BETWEEN:
BARRY HANSCH
FIRST APPLICANTSEAN SCOTT LAWRENCE
SECOND APPLICANTGARRY JOHN FISHER
THIRD APPLICANTAND:
TRANSPORT WORKERS' UNION OF AUSTRALIA, WILLIAM GEORGE NOONAN, HUGHIE JOHN WILLIAMS, ROBERT JOHN ALLAN, RICHARD DONALD MARLES, BRIAN JOHN McINTOSH, REGINALD WEARING, WAYNE MADER, TREVOR PAUL SANTI, ANTHONY SHELDON, ALASTAIR LYALL, DON CLODE, GEORGE CLARKE, JOHN MORRISON, MARK ANDREW WALKER, RONALD JAMES PORTER, ALEXANDER McEACHIAN GALLACHER, DOUG FROHER, RUSSELL PAUL WORTLEY, HOWARD SMITH, MICHAEL NEALER, JAMES McGIVERON, JOHN RAMSELL and GLENN STERLE
RESPONDENTS
JUDGE:
MARSHALL J
DATE:
15 SEPTEMBER 2000
PLACE:
MELBOURNE (HEARD IN HOBART)
REASONS FOR JUDGMENT
On 26 April 2000, the Court granted the applicants a rule to show cause which called upon the respondents to show why orders, including the following orders, should not be made:
“1.An order pursuant to s209 of the (Workplace Relations) Act that the respondents, other than the firstnamed respondent, perform and observe the rules of the firstnamed respondent by treating as null and void and of no effect or force the purported resolution of the Federal Council of the firstnamed respondent of the 31st March, 2000 to disband the Tasmanian Branch of the firstnamed respondent.
2.An order that the respondents, other than the firstnamed respondent, be restrained from taking any steps to disband the Tasmanian Branch of the firstnamed respondent until elections are held for the said positions in the said Branch.
3.An order in the accrued jurisdiction of the Court that the firstnamed respondent pay the firstnamed applicant the sum of $56,981.12 and pay to the TWU Super Fund (sic) on behalf of the firstnamed applicant the sum of $13,311.54.
4.An order pursuant to Section 209 of the Act that the Respondents, other than the firstnamed Respondent observe and perform the Rules of the firstnamed Respondent by permitting and ensuring that:-
(a)the applicant has access to and the use of the telephones of the Tasmanian Branch of the Transport Workers’ Union for the purposes of carrying out his duties and exercising his powers as an elected Branch Organiser.
(b)the applicant has access to the records of the Tasmanian Branch of the Transport Workers’ Union for the purposes of carrying out his duties and exercising his powers as an elected Branch Organiser.
(c)the applicant has access to and the use of the office equipment and stationery of the Tasmanian Branch of the Transport Workers’ Union for the purposes of carrying out his duties and exercising his powers as an elected Branch Organiser.
(d)the applicant has the use of a motor vehicle for the purposes of carrying out his duties and exercising his powers as an elected Branch Organiser.”
On 11 May 2000, the Court ordered by consent, inter alia, that:
“The hearing in this proceeding on 1 August 2000 be confined to the relief sought in paragraphs 1, 2 and 3 of the Rule to Show Cause dated 26 April 2000.”
Background facts
The applicants are members of the first respondent, the Transport Workers’ Union of Australia (“the Union”). The remaining respondents comprise the Federal Council of the Union. The second respondent, Mr Noonan, is the Secretary of the Victorian/Tasmanian Branch of the Union. The fourth respondent, Mr Allan, is the Federal Secretary of the Union.
The first applicant, Mr Hansch, was elected to the office of Branch Organiser in the Tasmanian Branch of the Union on 8 March 1995.
On 4 July 1998, the Branch Committee of Management of the Tasmanian Branch of the Union (“the Branch Committee of Management”) resolved as follows:
“The Tasmanian Branch Committee of Management having heard reports from K. Bacon, Branch Secretary and W. Noonan, Federal Vice President on Branch finances, recognises that maintaining existing Branch structure is impossible. The B.C.O.M. resolves to:-
1.Direct the Branch Secretary to reduce staffing by four with the retrenchment of J. Austin, J. Gill, T. Bacon and V. Bushing, effective 31st July 1998, with redundancy payments to total $26,908.00 in addition to annual leave and other entitlements.
2.Acknowledge that the current cash flow situation does not allow the Branch to meet ongoing liabilities and continue to provide services to the membership; accordingly the Branch has effectively ceased to function.
3.Recommends that the Federal Council immediately review the Branch’s continued operations in accordance with Rule 23(1)(e).
4.Calls upon the Federal Secretary to develop a business plan and budget that will provide an adequate level of service to the membership in Tasmania.”
At the request of the then Tasmanian Branch Secretary, Mr K Bacon, Mr Allan was present at the meeting on 4 July 1998 in his capacity as Federal Secretary. Mr Allan gave evidence that his purpose in coming to Tasmania at that time “was to have a meeting with the then Branch Committee of Management and be advised on the current situation of the Branch”. Mr Noonan was then the Federal Vice President of the Union and attended the meeting due to the unavailability of the then Federal President.
Prior to 4 July 1998, Mr Bacon had made Mr Allan aware “that the branch was in a difficult financial situation and something had to be done”. Mr Allan further stated that he was aware before 4 July 1998 “that the financial situation in Tasmania was in a state that effectively was bankrupt and action had to be taken but the Branch Committee of Management had to make their own decision”. Mr Allan was also of the view that the Tasmanian operations of the Union were unable to be carried out by the Tasmanian Branch without assistance from the Federal Office of the Union. He believed that the Branch Committee of Management had no alternative but to request that the Tasmanian Branch be disbanded.
On 4 July 1998, Mr Allan advised the Branch Committee of Management that it was unable to move for the Tasmanian Branch’s disbandment but that that was a matter for Federal Council.
Mr Noonan gave evidence that he came to Tasmania on 4 July 1998 because of concerns about the financial state of the Tasmanian Branch of the Union. He said that he was invited by the Branch Committee of Management to attend the meeting in his capacity as Federal Vice-President of the Union. Mr Noonan also said that he believed that the Tasmanian Branch was “in serious financial difficulty” and that the Tasmanian Branch was “in some real difficulty in continuing”. Mr Noonan denied the suggestion put to him in cross-examination that he had decided before the 4 July 1998 meeting that the Tasmanian Branch ought be disbanded.
On 6 July 1998, the Federal Council of the Union met to review the continued operation of the Tasmanian Branch in accordance with the resolution of the Branch Committee of Management of 4 July 1998. Mr Noonan gave evidence that the decision to call a Federal Council meeting for 6 July 1998 was made after the meeting of the Branch Committee of Management on 4 July 1998.
At the 6 July 1998 Federal Council meeting a report was tabled which revealed a projected deficit for the Tasmanian Branch for the calendar year ending 31 December 1998 in the sum of $374,641.00. The Federal Council resolved to disband the Tasmanian Branch on the basis that it had effectively ceased to function. It determined that the affected members of the Tasmanian Branch be represented directly by the Federal Council.
The Federal Council resolution of 6 July 1998 was the subject of a challenge in this Court which was rejected at first instance in Bramich v Transport Workers’ Union of Australia (1999) 89 IR 30, [1999] FCA 510 (“Bramich No 1”). That judgment was delivered ex - tempore on 9 April 1999. On 21 February 2000, a Full Court of this Court held that the sub-rule of the rules of the Union which permitted the members of a disbanded branch to be represented directly by Federal Council, was invalid. See Bramich v Transport Workers Union of Australia (2000) 97 FCR 204, [2000] FCA 135 (“Bramich No 2”). The order of the Full Court was as follows:
“1.It be declared that Rule 23(3) of the Rules of the Union contravenes s196 of the (Workplace Relations) Act.
2.The respondents perform and observe the rules of the Union by treating as null and void the resolution of Federal Council of 6 July 1998.”
From 6 July 1998 until 21 February 2000, the affairs of the Union were conducted on the basis that the Tasmanian Branch no longer existed. A business plan was developed to attempt to make the Tasmanian operations of the Union financially viable. From 6 July 1998 until 30 June 1999, employees of the Union working in Tasmania reported directly to Mr Allan who was responsible for overseeing and implementing industrial strategies for the representation of members in Tasmania.
In the period from 6 July 1998 to 30 June 1999, the Tasmanian operations of the Union continued to run at a loss. The extent of that loss was debated by counsel for the applicants, Mr J Green, with Mr Allan and Mr Noonan in the cross-examination of each of them. However, even if all Mr Green’s suggested reductions to the deficit referred to in evidence were made, the operations of the Union in Tasmania did not break even in the period 6 July 1998 to 30 June 1999.
On 20 May 1999, the Federal Council resolved to attach the Tasmanian members of the Union to the Victorian Branch, and to re-name that Branch the Victorian/Tasmanian Branch, pursuant to Rule 23(4) of the rules of the Union which permits the Federal Council to attach the affected members of a disbanded branch to another branch.
In accordance with the Federal Council resolution of 20 May 1999, responsibility for the representation of the interests of Tasmanian members of the Union was transferred to the Victorian/Tasmanian Branch on 1 July 1999.
In the period between 6 July 1998 and 30 June 1999, the Tasmanian operations placed great demands upon the finances of the Federal Office of the Union. In September 1998, the Federal Committee of Management of the Union authorised the securing of a loan from the Victorian Branch to assist to make the Tasmanian operations viable. Further, on 2 March 1999, the Federal Council imposed a levy of $25 on members in Tasmania for the 1999 calendar year. The purpose of the levy was to assist in improving the financial standing of the Union in Tasmania.
On 4 February 1999, Mr Allan circulated a document to members of the Union in Tasmania advising that “(t)he finances in Tasmania have been turned around and the Union is now ‘back in the black’”. Mr Allan gave evidence that the document was circulated “because there was a number of allegations around that the TWU was owing creditors throughout Tasmania and that had to be cleared up”. Mr Allan also gave evidence that, given the costs associated with overheads, other on-costs and past debts which could not be met from membership subscriptions alone, as at 4 February 1999, the Tasmanian operations of the Union could only meet their current commitments “through loans from the Federal Council”.
On 6 March 2000, after the receipt of legal advice concerning the consequences of the Full Court judgment of 21 February 2000, the Federal Council resolved to hold a further special meeting of Federal Council on 27 March 2000 “to consider whether or not to resolve that the Tasmanian Branch has effectively ceased to function and ought therefore be disbanded pursuant to Rule 23(1)(e) of the Rules …”. The Federal Council also directed Mr Allan “to write to all members of the Tasmanian Branch inviting those who are interested to provide a written submission for consideration by the special meeting of Federal Council scheduled for 27 March 2000 on the questions to be determined by that special meeting of Federal Council, with submissions to be provided to the Federal Secretary by 12.00 pm on 22 March 2000”.
Mr Allan, Mr Noonan and any other branch secretary who desired to do so was invited by Federal Council to provide “a report in relation to those questions to be determined by the special meeting of Federal Council scheduled for 27 March 2000”. The last paragraph of the Federal Council resolution of 6 March 2000 directed Mr Allan “to invite a person who was last entitled to attend a meeting of Federal Council as Federal Councilor (sic) for the Tasmanian Branch, to attend the special meeting of Federal Council scheduled for 27 March 2000 and to invite him to provide a report on the questions to be determined by that special meeting of Federal Council”.
After the Federal Council meeting of 6 March 2000, Mr Noonan prepared a report dated 17 March 2000 in accordance with the request of Federal Council. In his report, Mr Noonan made recommendations including the following:
“(a)The Tasmanian Branch should be disbanded. That Branch does not now function in any practical manner whatsoever and there is no basis to believe that it will be able to function into the future.
(b)Tasmanian members of the Union should be attached to the Victorian Branch and that Branch should be renamed the Victorian/Tasmanian Branch. This has been the reality since July 1999 and will ensure that Tasmanian members of the Union receive effective industrial representation, as well as best advancing the overall interests of the Union.”
Mr Allan provided a report to Federal Council dated 21 March 2000. That report set out in a fullsome manner the issues confronting Federal Council concerning the continued operations of the Union in Tasmania. It did not make specific recommendations but concluded as follows:
“In considering the above matters, I urge Federal Councilors (sic) to give primary concern to means by which Tasmanian transport workers can continue to receive effective industrial representation by a union which is dedicated to their interests, the TWU. To this end, Federal Councilors (sic) must consider the reality of the situation which confronts the Union and its members and should focus their thoughts on what action will best advance the current and future industrial interests of members, as well their right to participate in the affairs of the Union. In addition to this, Federal Councilors (sic) should bear in mind the overall interests of the Union in furthering its objectives and ensuring that it continues to function efficiently."
Under cross-examination, Mr Allan said that it was his opinion as at 21 March 2000 that the Tasmanian operations of the Union “could not survive by themselves”. He further stated that:
“In a business sense I had an opinion that it had to have assistance. It could not stand alone.”
Mr Allan specifically denied closing his mind to the arguments to the contrary.
Mr Noonan gave evidence that as at the time of his report of 17 March 2000, he believed that having regard to financial considerations, the Tasmanian Branch should be disbanded. He also gave evidence that in coming to that opinion, he considered the views to the contrary.
On 15 March 2000, the second applicant, Mr Lawrence, sent an email to Mr Allan seeking to present a written submission on his behalf and on behalf of three other members, including the remaining applicants, “on the provision that we can speak to the submission to Federal Council”. Mr Lawrence’s email was in response to a letter sent by Mr Allan to all members of the Union in Tasmania on 7 March 2000 which advised them of the Full Court judgment and the resolution of Federal Council of 6 March 2000.
Mr Allan’s reply email to Mr Lawrence’s email was sent on 21 March 2000 and is worthy of being quoted in full. It said as follows:
“I refer to your email dated 15 March, 2000, requesting an opportunity to speak to written submissions which you propose to provide to the Union in relation to the matters to be considered at the special Federal Council meeting arranged for 27 March, 2000.
As was set out in my letter to you and to all other Tasmanian members of the Union dated 7 March, 2000, Federal Council has established a process by which the views of all interested Tasmanian members of the Union in relation to the future of the Tasmanian Branch of the Union will be taken into consideration in Federal Council’s deliberations about this issue. This process provides for the opportunity for all members to provide written submissions in relation to the issues identified in my letter of 7 March 2000. These submissions should be received by the Federal Office of the Union by no later than 12.00 pm on 22 March and all submissions received will be distributed to members of Federal Council prior to the meeting on 27 March, 2000.
The process established by Federal Council does not make provision for individual members to be able to speak to submissions they may provide to the Union. Such an approach is impractical and would make unwieldy the deliberations and conduct of the special meeting of Federal Council. Additionally, I do not understand what matters you might wish to raise in speaking to your submissions, which could not be properly set out and explained in writing. If in effect what you seek is an opportunity to participate in Federal Council’s deliberations, such participation is not provided for in the rules of the Union or otherwise by law. The deliberations and ultimate decision on the issues to be considered is a matter for individual Federal Councilors (sic).
For the above reasons, in line with the process established by Federal Council and consistent with the procedure adopted in respect of all Tasmanian members of the Union, no provision will be made for you to be able to speak to any written submissions you may wish to provide to the Union. However, I take the opportunity to urge you to fully set out and explain in your written submissions, your views and their bases in relation to the issues to be considered by Federal Council. Your submissions in this regard will be fully taken into consideration by Federal Council in its deliberations.
In addition to expressing your opinions in the above way, I can also indicate that at the special meeting of Federal Council held on 6 March 2000, it was resolved that Mr Ken Bacon be invited to attend the special meeting of Federal Council on 27 March 2000 as he was the last Federal Councilor (sic) elected by Tasmanian members. You are of course free to make contact with Mr Bacon to inform him of your views on the issues to be considered by Federal Council and to ask that those views be expressed at the special Federal Council meeting.
I look forward to receiving any submissions you may wish to provide to the Union by 12.00 pm on 22 March 2000.”
On 22 March 2000, Mr Allan sent a memorandum to all other Federal Councillors advising of a Special Federal Council phone conference for Monday 27 March 2000 at 12 noon, Eastern Standard Time. The memorandum provided as follows:
“The meeting will consider whether or not to resolve that the Tasmanian Branch has effectively ceased to function and ought to therefore be disbanded pursuant to rule 23 (1E) Rules and if so:-
(a)whether or not the Affected Members of the Tasmanian Branch should be attached to the Victorian Branch pursuant to Rule 23(4) of the Rules; and
(b)whether or not the Victorian Branch of the Union should be re-named the “Victorian/Tasmanian” Branch pursuant to Rule 23(5)(d) of the Rules; and
(c)the number by which the Branch Committee of Management of the Victorian Branch should be increased pursuant to Rule 23(5)(c)(i) of the Rules; and
(d)whether or not, pursuant to Rule 23(5)(c)(ii) of the Rules, to appoint a person(s) to be the temporary additional member(s) of the Branch Committee of Management created by the above increase in the number of members of the Victorian Branch Committee of Management and if so, which such a person or persons.
Please find attached the following documents:-
1.Resolution of Federal Council dated 6th March 2000.
2.Letter from Federal Secretary to Tasmanian members dated 7th March 2000.
3.Federal Secretaries report – Tasmanian Branch
4.Victorian Branch Secretaries report – Tasmanian Branch
5.Submission of Mr Barry Hansch dated 14th March 2000
6.Submission of Mr Allan Taylor, dated 13th March 2000
7.Letter from Sean Lawrence dated 15th March 2000
8.Letter from John Allan to Sean Lawrence dated 20th March 2000
Please fill in the attached form and fax back to Julie Gavegan on … or alternatively telephone on … .
Yours sincerely,
John Allan
Federal Secretary”The “Submission of Mr Barry Hansch dated 14th March 2000”, was a single page hand-written letter which included the following relevant material:
“The Branch has not ceased to function and therefore should not and cannot be disbanded. It is clear from the Federal Court decision of the 21 February 2000 that the Branch had not ceased to function and that Branch elections needed to be conducted.
Any further attempts by Federal Council to disband the Branch will be met by strong resistance as the solicitor for the appellants has been instructed to institute further proceedings in the Federal Court to ensure that Branch elections which should have occurred in 1999 are conducted as soon as possible.”
Mr Allan also received a submission by email from a Mr Allan Taylor, a longstanding financial member from Sorell who is employed by Toll Tasmania. In his submission, Mr Taylor said that:
“I am a fiercely patriotic Tasmanian but realistically I am of the firm opinion that we need to be Attached (sic) to the Victorian branch simply because we are not strong enough at the moment to go it alone.”
On 6 March 2000, Mr Noonan wrote a letter to all members of the Union in Tasmania in which he encouraged them to make submissions to the Federal Council after they received Mr Allan’s letter, being the letter which was ultimately sent to them and dated 7 March 2000. Despite that encouragement, the only rank and file responses came from Messrs Hansch and Taylor and Mr Lawrence, to the extent that Mr Lawrence’s email can be regarded as a relevant response.
On 23 March 2000, in the context of an application purportedly made under ss218, 258 and 259 of the Workplace Relations Act 1996 (Cth) (“the Act”), Heerey J made an interim order preventing the disbandment of the Tasmanian Branch of the Union until 30 March 2000 or further order.
Later on the same day, Mr Allan sent a memorandum to all other Federal Councillors advising them that “the phone conference for 12.00 pm Monday 27th March 2000 is now postponed”.
On 30 March 2000, the Court set aside the interim orders made on 23 March 2000 for the reasons referred to in the reasons for judgment which were subsequently published on 6 April 2000. See Hansch v Transport Workers’ Union of Australia [2000] FCA 473 (Hansch No 2).
Later on the same day, Mr Allan sent a memorandum to all Branch Secretaries and all other Federal Councillors which stated that:
“The postponed meeting earlier in the week will now be held by phone conference 4.00 pm EST Friday 31st March 2000.”
On 31 March 2000, the Federal Council meeting, which had been scheduled for 27 March 2000 but later postponed in light of the interim order of 23 March 2000, was held by telephone conference. At the meeting, the written submission of Mr Hansch dated 14 March 2000 was read out in full and the written submission of Mr Taylor was summarised. Mr Allan and Mr Noonan were each requested by the Federal Vice-President as chairperson of the meeting, “to speak to his report”.
The Federal Council proceeded to make a number of resolutions including the following:
“Having regard to the above submissions and reports distributed by the Federal Secretary, Federal Council concludes that the Tasmanian Branch has effectively ceased to function on the basis that, as a matter of practical reality, it has ceased to perform the functions provided for it under the Rules, being the business of the Union within the State of Tasmania. Federal Council accordingly resolves to disband the Tasmanian Branch pursuant to Rule 23(1)(e).”
“Having regard to the submissions and reports distributed by the Federal Secretary, Federal Council concludes that an appropriate means by which Tasmanian members of the Union may participate in the affairs of the Union and which will promote the efficient management of the Union is for those members to be attached to the Victorian Branch. Federal Council accordingly resolves pursuant to Rule 23(4):
(a)Not to reconstitute the Tasmanian Branch; and
(b)to attach the Tasmanian members of the Union to the Victorian Branch.”
The Federal Council also resolved to re-name the Victorian Branch as the Victorian/Tasmanian Branch and to increase the number of members of the Committee of Management of that Branch by one. A Tasmanian member, Mr Mason, was appointed to that office pending the holding of an election for that position.
It does not appear to be in dispute that the Full Court judgment in Bramich No 2 had the effect of reviving the Tasmanian Branch of the Union. The 31 March 2000 disbandment resolution was intended to overcome that result by achieving a valid disbandment. Although the order of the Full Court which declared part of Rule 23 void was prospective under s208(5) of the Act, the effect of s208(2) of the Act is that a declaration under s208 has binding effect between the parties as at the date relied upon by the applicants: see Re Keely; Ex parte Kingham (1995) 129 ALR 255 at 264-268, Full Court of the Industrial Relations Court of Australia, per Wilcox CJ (with whom Spender and Ryan JJ agreed).
As counsel for the respondent, Mr Hinkley, contended in his written submissions filed on 7 August 2000, the correct position is that “as between the parties to these proceedings Rule 23(3) of the TWU rules was void from 6 July 1998 and so far as other persons are concerned, it was void from 21 February 2000”.
Until 7 September 1998, Mr Hansch was employed by the Union as an organiser in its Tasmanian operations under the direction of the Federal Council. On 7 September 1998, his employment was terminated. The Tasmanian Industrial Commission (“the Comission”) dealt with a dispute about the termination of Mr Hansch’s employment and ordered the Union to pay him $37,212.16 on account of severance pay. Mr Hansch sought reinstatement but obviously was not successful. He maintained that he has at all times been ready, willing, able and available to perform his duties as an organiser. There is no evidence that Mr Hansch has sought to obtain other employment since 7 September 1998.
Mr Hansch described his occupation in his evidence as a “union official”, although there was no evidence that he was working in that capacity or had been employed in any such capacity since 7 September 1998. Under cross-examination, Mr Hansch agreed with Mr Hinkley, that he has refrained from seeking alternative employment as he believed he should be reinstated by the Court as an elected organiser and be able to resume his duties as such.
As a matter of practical reality, from 1 July 1999 until 21 February 2000 there was a Victorian/Tasmanian Branch of the Union which operated as such and managed the affairs of the Union in those States. Its secretary was Mr Noonan and he was responsible for directing the work of two organisers and an administrative assistant in Tasmania. In a separate proceeding under s258 of the Act, which was heard with this proceeding, the Union sought orders validating certain actions taken by the Union, its Victorian Branch and/or its Victorian/Tasmanian Branch in the periods 6 July 1998 to 1 July 1999 and 1 July 1999 to 31 March 2000. That application is the subject of separate reasons for judgment delivered the same day as these reasons for judgment.
The contentions of the applicants and the Court’s response on disbandment
Mr Green submitted that the notice of the proposal to disband the Tasmanian Branch which was sent by Mr Allan to all members in Tasmania on 7 March 2000 was not adequate because those members who held over in office as a result of the Full Court order of 21 February 2000 were not told that they still held office. It was put that if they realised they still held office they may have called a meeting to support the continuation of a Tasmanian Branch. In the alternative, it was put that the letter of 7 March 2000 was not a notice. It was put that given that the order of Heerey J made on 23 March 2000 received publicity in a local newspaper, there should have been a notice sent to members to the effect that the 23 March 2000 injunction had been set aside.
Reliance was placed by Mr Green on par [44] of the reasons of the Full Court in Bramich No 2. That paragraph reads as follows:
“It is also unnecessary for us to consider the additional submission of the appellants that Rule 23(1) also infringed s 196(c) as it failed to provide that notice of a proposal to disband a branch must be given to the Branch Secretary or the Branch Committee of Management. We consider that there are reasonable grounds for contending that, in the usual course, principles of natural justice would require some such notice unless the rules expressly or impliedly excluded the operation of those principles. The fact that notice may not be required in respect of an alteration to the rules that affect a branch (see Campbell v Crawford at 341) does not have the consequence that no such notice is required prior to the exercise of power under Rule 23(1). As this issue was not fully explored in argument we do not pursue it further.”
The obiter dicta of the Full Court quoted from above referred to an issue arising under s208 of the Act. The rule to show cause in this matter does not seek relief based on s208 of the Act but on s209 of the Act. Reliance on the abovementioned passage from the reasons of the Full Court is entirely misplaced. The Full Court was there discussing the appropriate content of a rule rather than the manner of performance of a rule. The difference is fundamental.
The other submissions referred to above at par [43] are also devoid of merit. The notice which called the relevant Federal Council meeting was Mr Allan’s memorandum of 22 March 2000, set out at par [27] above. It gave notice of a meeting on 27 March 2000 which was subsequently postponed to 31 March 2000. The letter dated 7 March 2000 was part of a detailed process undertaken by the Union to inform all members in Tasmania about the Full Court order and the options open to the Union as a consequence of that order. It was not in any sense a notice of a Federal Council meeting. The Union invited submissions from members in Tasmania about the issue of possible disbandment. It received only two written submissions. Each of them were referred to the Federal Councillors. Mr Hansch’s submission was read in full. It is not for the Court to censor the mode of consultation between a Union and its members: Tanner v Maynes (1985) 7 FCR 432 at 443 per Evatt and Northrop JJ. Further, the degree of publicity which the press gives to decisions of this Court is no proper basis for determining what advice a registered organisation should or should not give its members. I reject the submissions of the applicants referred to above at par [43].
Mr Green next submitted that as a matter of practical reality, as at 31 March 2000 the Tasmanian Branch effectively functioned. It was put that it still had some officers who held over in office notwithstanding the expiry of their terms and it would be a simple matter to account to those officers for contributions received from Tasmanian members. It was said that one only needs to look to see if the Tasmanian Branch can perform its functions under the rules and that it is wrong to look at its financial status alone to determine whether it has effectively ceased to function.
I reject that submission. It appears to be based upon what the Full Court said in Bramich No 2 (at par [27]):
“In our view “ceases to function” means that it has ceased to carry out or perform the functions it was established to carry out and perform under the Rules.”
To so construe that passage of the Full Court’s reasons is to take it out of context. First, its emphasis was on the actual performance of functions and not a theoretical ability to perform functions. But in any event, it is important to note the words of the Full Court judgment which immediately followed those set out above. They were:
“The word “effectively” requires that the question of cessation of function be considered as a matter of practical reality rather than by reference to technical, insignificant or transitory omissions.” (Emphasis supplied).
The Full Court went on to say (at par [28] of its reasons) that:
“Where, as a matter of practical reality, a branch has ceased to perform the functions provided for under the Rules then the condition for the exercise of the power to disband the branch, reposed in the Federal Council, will have been satisfied. Whether the condition has been satisfied in a particular case is to be ascertained as a matter of objective fact.”
In the alternative, Mr Green submitted that the Tasmanian Branch was financially viable. He disputed the financial analysis of the Tasmanian Branch’s position which Mr Noonan and Mr Allan had advanced. It is not for the Court to determine as a question of objective fact whether as a matter of practical reality the Tasmanian Branch had effectively ceased to function. That is a decision which was for Federal Council to determine as long as it did so in a bona fide and honest fashion. In any event, as previously noted, even on Mr Green’s analysis of the financial situation, the Tasmanian operations were not self-sufficient at any relevant stage.
Mr Green did not pursue a challenge to the bona fides of the decision of 31 March 2000 but submitted that Mr Noonan and Mr Allan were invincibly biased in favour of disbandment and that such bias vitiated the decision of 31 March 2000. I immediately confess being perplexed that a submission could seriously be advanced that members of committees of management of registered organisations are not permitted to hold strong views on matters on which they are required to deliberate. However, it is unnecessary to explore this issue further as, on the evidence, it cannot be said that Mr Noonan or Mr Allan were invincibly biased in favour of disbandment as each of them gave evidence that in coming to their final decision, they took into account the contrary view. Neither official can be said to have been biased to the extent of not being capable of persuasion by reason or argument: see Cains v Jenkins (1979) 42 FLR 188 at 194-5 per J.B. Sweeney and St. John JJ. A contrary view, that is that of Mr Hansch, was put to the meeting in the form of Mr Hansch’s written submission. Mr Green was initially reluctant to accept that the relevant bias must be “invincible bias” but ultimately (at t/s p258) advanced no submission why that was not so. Mr Green also contended that bias in favour of disbandment of the Tasmanian Branch by Mr Noonan and Mr Allan was clear “going back to 1994” when each of them, as incumbent officers, decided with all other incumbent officers to support other incumbent officers, including Mr Bacon, during the 1995 elections. Mr Bacon opposed Mr Hansch’s re-election. Each man was promoted on a different ticket. Mr Noonan gave evidence that he did not involve himself in 1995 branch elections in Tasmania. Mr Allan also took no active role in that election. It is incorrect to suggest that support for Mr Bacon in 1995 necessarily meant that Mr Noonan and Mr Allan would have a closed mind in March 2000 on the question of disbandment of the Tasmanian Branch. It should be noted that no such allegation of bias on account of events in 1994 was ever put squarely by Mr Green to Mr Allan or Mr Noonan. I also reject as without foundation a suggestion by Mr Green of bias in Mr Allan on account of Mr Allan’s failure to make Mr Bacon re-pay an alleged invalid payment from Tasmanian Branch accounts when Mr Bacon was Tasmanian Branch Secretary.
More surprisingly, it was then contended that the Tasmanian Branch could not be disbanded on 31 March 2000 because it had been illegally disbanded before and the Union couldn’t profit by its own illegal act. It is sufficient to answer this submission by noting that on 6 July 1998 the Federal Council acted in accordance with a sub-rule which had been certified by the Industrial Registrar and but for the rule to show cause granted on 28 October 1998, Federal Council had no reason to consider the sub-rule as anything other than valid.
Mr Green, on the same issue, referred the Court to the judgment of the High Court in Nelson v Nelson (1995) 184 CLR 538 at 595 per Toohey J where his Honour observed that a court will not “‘lend its aid’” to someone “‘who founds his cause of action upon an immoral or illegal act’”. Nelson has no relevance to the instant facts. Further, as Toohey J noted, also at 595, “a universal application of this rigid rule will often lead to unjust and capricious results”. The 6 July 1998 disbandment was not an illegal act. It occurred under rules which had not at that time been declared to be void in part. As s208(5) of the Act makes clear, a rule or part of a rule declared to be void under s208 of the Act is only void from the date of the order of the Court. This is a separate and distinct consideration from the consequences which flow from a finding that the rule was void, eg. the continued existence of the Tasmanian Branch and the possible entitlement of full time officers to payment of wages and superannuation.
I also reject the submission of Mr Green that the mere presence of Mr Allan and Mr Noonan vitiated the meeting of the Federal Council of 31 March 2000. Those gentlemen attended the meeting in accordance with their right to do so as Federal Councillors. Although he was entitled to chair the meeting, Mr Noonan did not do so. The facts of this case are starkly different from the facts of Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509 (see especially at 516 per Barwick CJ) and Allen v Townsend (1977) 31 FLR 431 at 482 per Evatt and Northrop JJ, upon which Mr Green placed reliance. In Allen, the person whose presence was said to have vitiated the meeting was not entitled to attend. In Stollery, the person whose presence affected proceedings would have ordinarily attended but in the circumstances should not have done so because he was not entitled to deliberate on the matter in issue and being “a very important official”, his presence during deliberations was not appropriate. There was no question that Mr Allan and Mr Noonan was each entitled to attend the Federal Council telephone conference meeting on 31 March 2000 and engage in deliberations in the course of that meeting.
Mr Green, it appeared, reluctantly and only after being pressed to do so by Mr Hansch, raised a matter which he admitted had no consequence. That matter was the fact that Mr Bacon was invited to attend the 31 March 2000 meeting but should not have been so invited. As Mr Green conceded, I do not have to deal with that matter as Mr Bacon did not participate in the meeting. Mr Green ultimately said that (at t/s p245):
“But I have to concede that Mr Bacon did not attend and he did not make any submissions and I have to concede that it did not make any difference.”
However, it is noteworthy that if anything turned on the submission, some consideration may have been required to be given to the judgment of Keely J in Re McGee (1992) 41 IR 27 at 32, where the right of an official of the Union to continue to hold office after changing his occupation to one falling outside the Union’s eligibility rules was discussed.
Mr Green also attacked the resolution of 31 March 2000 to disband the Tasmanian Branch because it was made too quickly. He cited no authority to support that submission. Although it was not clear from his submissions, this appeared to be another alleged manifestation of bias, it would seem not just in Mr Noonan and Mr Allan, but in the whole Federal Council. This submission of Mr Green is misplaced. The Union went to great lengths to put the issue before its Tasmanian membership as soon as it received legal advice on the effect of the Full Court’s judgment. It acted promptly but appropriately in the circumstances to remedy the practical difficulties which flowed from the Full Court’s order. I address those difficulties separately in the judgment on the validation issue, being a judgment also delivered this day.
Conclusion on paragraphs 1 and 2 of the Rule to Show Cause
It follows from the above analysis that there is no basis on what has been advanced by the applicants, upon which paragraphs 1 and 2 of the rule to show cause can be made absolute. Accordingly, I will order that each such paragraph of the rule to show cause be discharged. There was no debate on paragraph 4 of the rule to show cause as it was agreed to reserve consideration of that issue until a later occasion if necessary. I see no basis upon which that paragraph of the rule to show cause can be sustained if paragraphs 1 and 2 are discharged. I am prepared to also discharge that paragraph of the rule but will not make the order operable for a period of 21 days after the delivery of reasons for judgment so that any contrary submission may be advanced in writing in the interim. Any issue on that matter, if it arises, can be dealt with by the duty Judge or list Judge in Melbourne during my imminent leave.
On reflection, paragraph 3 of the rule to show cause should not have formed part of the rule to show cause but should have been noted as an order which was sought in the accrued jurisdiction of the Court. That is because it is not an order which requires performance and observance of any rules of the Union. I will now turn to the question whether any such order should be made and if so, its contents.
The claim in the accrued jurisdiction
The applicants applied for an order in the accrued jurisdiction of the Court that the Union pay Mr Hansch the sum of $56,981.12 and pay to the “TWU Super Fund” (sic), on behalf of Mr Hansch, the sum of $13,311.54.
That claim is calculated in the following way:
· 7 September 1998 to 31 March 2000 = 81 weeks salary at $1,160.88 per week, leaving a sum which Mr Green contended to be $94, 193.28 but which is actually $94, 031.28.
· From $94, 031.28 is deducted a sum of $37,212.60 being the amount of severance pay ordered by the Commission and conceded by Mr Green to be properly deducted from any award of damages flowing to Mr Hansch.
· Superannuation entitlements are based on a $164.34 weekly entitlement multiplied by 81 weeks.
After the 6 July 1998 resolution of Federal Council, Mr Hansch was granted a rule to show cause on 10 July 1998 in which, inter alia, he challenged the bona fides of that resolution. That aspect of the rule to show cause was discharged in a judgment of the Court delivered on 6 August 1998. See Hansch v Transport Workers’ Union of Australia (1998) 85 IR 310 at 312-313. The Court also rejected a submission that Mr Hansch’s office survived the disbandment. At 314 the Court said:
“The applicant holds no such office. The current situation is that he is employed pursuant to a duty statement dated 1 July 1998 by the federal organisation and is directed through Federal Council to perform enumerated duties as an organiser. The applicant is in such employment. It was the evidence of Mr Allan, subject to further legal advice, that such employment would continue if the appeal from Ryan J’s judgment was dismissed and again, subject to further legal advice, such employment would in any case be terminated in the event that the appeal was upheld. Those matters are not particularly germane to this judgment but I mention them in the context of determining the current status of the applicant in the context of his position vis-à-vis members of the organisation who reside in Tasmania, particularly in the southern region.”
No further challenge was made to the 6 July 1998 resolution until a rule to show cause was granted which led ultimately to the Full Court judgment in Bramich No 2. No s208 issue had been raised before the granting of the rule to show cause on 28 October 1998. As was said at first instance in Bramich No 1 (at pars [9] and [10]):
“The proceeding commenced on 28 October 1998 when the Court granted the applicants a rule to show cause. The primary relief sought in the rule was an order pursuant to s208 of the Act declaring rule 23 of the rules of the Union to be in contravention of s196(c) of the Act. Consequential relief was sought pursuant to s209 of the Act calling upon the respondents, other than the Union, to treat the Federal Council resolution of 6 July 1998 as null and void. Further consequential orders were sought relating to the position of Mr Hansch as an elected organiser of the Branch and relating to the first and third applicants as members of the Branch Committee of Management.
On 2 November 1998 the applicants sought interlocutory relief in which they contended effectively that the Branch should be re-established pending the final hearing in the proceeding. The Court declined to grant interlocutory relief on the basis that the balance of convenience did not support the re-establishment of the Branch when it was possible that such re-establishment may be short lived if the respondents succeeded at trial. The Court was also concerned at the applicants’ delay in seeking a rule to show cause.”
In an affidavit filed in support of the rule to show cause in the current proceeding, Mr Hansch said:
“The firstnamed respondent (sic) in his application to the Tasmanian Industrial Relations Commission (sic) made on the 11th September, 1998 sought reinstatement to his position as an organiser of the Tasmanian Branch of the firstnamed respondent and at all time (sic) has been ready willing and able to perform his duties as such an organiser.”
I find that part of Mr Hansch’s affidavit to be curious. As at 11 September 1998, the Court had ruled, in a judgment delivered on 6 August 1998, that the Tasmanian Branch did not exist. There was no appeal from that judgment. The issue of the existence of the Tasmanian Branch was not re-agitated until the s208 issue was ventilated by the grant of a rule to show cause on 28 October 1998. It was not until 28 October 1998 therefore that Mr Hansch raised in any intelligible or practical way his right to continue as an organiser elected to an office in an extant branch. I do not accept Mr Hansch’s assertion that from 11 September 1998 until 28 October 1998 he was ready, willing, able and available to perform his duties as an organiser.
In the 28 October 1998 rule to show cause the then applicants, including Mr Hansch, raised a claim in the accrued jurisdiction of the Court for payment to Mr Hansch for arrears of wages and superannuation. In Bramich No 1, under the heading “Remaining matters”, the Court said (at pars [40] and [41]):
“It is unnecessary to deal with Mr Green's remaining submissions as they are all predicated, as he conceded, upon the Court declaring rule 23 to be invalid. As rule 23 is valid and the Federal Council has taken valid action pursuant to the rule the Branch does not exist. No such branch has existed since July 1998. See Hansch (at 313). Consequently Mr Hansch ceased to hold office in the Union on 6 July 1998, notwithstanding that the term of his office was not due to expire until 20 April 1999.
It follows that Mr Hansch's claim for arrears of wages and superannuation from the termination of his employment on 7 September 1998 must fail. As an employed organiser whose employment was not then related to the holding of an office, Mr Hansch's employment was liable to termination by Federal Council without being afforded the protection provided by s195(1)(c) of the Act.”
The unsuccessful applicants in Bramich No 1 appealed to a Full Court from that judgment. The Full Court in Bramich No 2 commenced its judgment in the following way (at par [1]):
“This is an appeal from orders of a single judge of the Court discharging a rule to show cause granted on 28 October 1998 and dismissing the applicants’ claim for relief in the accrued jurisdiction of the Court.”
The Full Court held that insofar as it dealt with the s208 issue, the rule to show cause should have been made absolute. Under the heading “Other matters”, their honours then (at pars [43] and [44]) traversed a series of issues with which they did not find it necessary to deal. Critically, the Full Court made no orders dealing with the dismissal of the applicants’ claims in the accrued jurisdiction. The orders made dismissing those claims were set aside but no orders were made granting any relief in the accrued jurisdiction. That has occurred in circumstances where there is a significant overlap in the accrued jurisdiction claim in Bramich No 1 and the accrued jurisdiction claim in the current proceeding. However, the dismissal of that claim in Bramich No 1 at first instance was consequent upon the discharging of the rule to show cause. I do not consider that the Court is in any way estopped from considering the accrued jurisdiction claim in the current proceeding on its merits. Indeed, Mr Hinkley of counsel for the respondents did not make submissions to the contrary.
From the issuing of the rule to show cause in Bramich No 1 until its discharge, that is, from 28 October 1998 until 9 April 1999, Mr Hansch asserted a right to continue to hold the office of organiser and perform the duties associated with that office. On 20 April 1999, the four year term of that office expired.
On 28 April 1999, a notice of appeal was filed from the judgment in Bramich No 1. No active steps were taken by the solicitor for the appellants to have the appeal set down for hearing until 27 November 1999. After the judgment of the Full Court delivered on 21 February 2000, the current applicants instituted proceedings designed to prevent any further steps being taken to disband the Tasmanian Branch prior to the conduct of branch elections. There was no agitation in those proceedings (i.e. T2 of 2000) of the question of any entitlement Mr Hansch had to continuing payment. There was no contention raised by Mr Hansch that he held over in office after 20 April 1999. This was first raised as an issue by the Court in reasons delivered after the valid disbandment. See Hansch No 2 at pars [16] to [19].
In my view, the above analysis shows that Mr Hansch cannot trully be said to have been ready, willing, able and available to attend for his duties as a Branch Organiser on the basis that the first disbandment was invalid in any period other than the period from 28 October 1998 until 20 April 1999. Subject to dealing with Mr Hinkley’s submission that a failure in Mr Hansch to mitigate his damages by not trying to secure other work disqualified him from any wages, I would order payment of wages and superannuation in respect of only that 26 week period.
Mr Hinkley submitted that no payment should be made to Mr Hansch as he failed to mitigate his loss. It was also submitted that his wages depended on his obligation to perform work.
Mr Hansch was practically unable to present himself for work in the relevant 26 week period because the Union did not recognise him as holding any such office. In the circumstances, it would have been an act of futility for him to present himself at the Hobart Office of the Union each working day. A branch organiser is subject to the directions of a branch secretary who is the chief executive officer of the branch. See Rule 39(2) of the registered rules of the Union. There was no Branch Secretary of the Tasmanian Branch of the Union holding office in the period 28 October 1998 until 20 April 1999. There was no acting Branch Secretary at any such time as Rule 39(5) permits. Consequently, there was no one who Mr Hansch could present himself to in order to undertake his duties. He was entitled during that period to commit himself to the task of asking the Court to grant such relief as would have him undertake the work which he was elected to perform.
In any event, there was no other suitable employment available to Mr Hansch in the relevant period. As a member of the Union, he was not qualified to occupy a full time elected position as an organiser in another trade union in Tasmania. The qualification that alternative employment must be suitable to be relevant to the concept of mitigation of damages was alluded to by Latham CJ in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 452 where the “rule” is described by him as one whereby “a dismissed servant is bound to mitigate his damages by obtaining other suitable employment, if available” (emphasis supplied).
Twenty-six weeks salary at $1,160.88 per week is equivalent to $30,182.88. This sum was exceeded by the sum of $37,212.60 paid to Mr Hansch by way of severance pay as a consequence of the order of the Commission and a sum which Mr Green conceded should be deducted from any amount ordered to be paid by the Union to Mr Hansch in respect of any relevant underpayment of wages otherwise due to Mr Hansch. Consequently, the only order I would make, in the accrued jurisdiction, is that the sum of $4,272.84 be paid on Mr Hansch’s account to the “TWU Superannuation Fund”. This last amount reflects 26 weeks’ payment of superannuation at $164.34 per week.
Consequently, I make the following orders:
1.Paragraphs 1 and 2 of the rule to show cause granted on 26 April 2000 be discharged.
2.On the expiry of 21 days after the date of this order and subject to further order, paragraph 4 of the rule to show cause be discharged.
3.In the accrued jurisdiction of the Court, it is ordered that the first respondent pay to the TWU Superannuation Fund on behalf of the first applicant, the sum of $4,272.84 within 21 days of the making of this order.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 15 September 2000
Counsel for the Applicant: Mr J Green Solicitor for the Applicant: John Green Counsel for the Respondent: Mr R Hinkley Solicitor for the Respondent: Mr J Smith Date of Hearing: 1, 2 and 3 August 2000 Completion of Written Submissions: 14 August 2000 Date of Judgment: 15 September 2000
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