Hansch v Transport Workers' Union of Australia

[2000] FCA 473

FEDERAL COURT OF AUSTRALIA

Hansch v Transport Workers’ Union of Australia [2000] FCA 473

INDUSTRIAL LAW - registered organisation - branches - whether valid application for an election inquiry before the Court - whether invalidity in a branch election - whether failure to hold an election due constitutes such an invalidity - doctrine of “holding over”

Workplace Relations Act 1996 (Cth) ss218, 219, 258, 259

Bramich v Transport Workers’ Union of Australia (1999) 89 IR 30, [1999] FCA 510 cited

Bramich v Transport Workers Union of Australia [2000] FCA 135 cited

Australian Electoral Commission v Hickson & Ors (1997) 76 IR 399 applied

McLure v Mitchell & Anor (1974) 24 FLR 115 cited

Allshorn v Stapleton & Ors (1984) 4 FCR 236 cited

Grove v Cameron & Ors (1972) 21 FLR 59 followed

Re Gill (Gray J, 4 September 1984, unreported) followed

Re Australian Glass Workers’ Union (1973) 22 FLR 17 followed

Re Professional Radio and Electronics’ Institute of Australasia [1980] Ind Arb Service, Current Review, 169 followed

Jess v Scott & Ors (1986) 14 IR 341 referred to

Porter & Anor v Davis & Ors (1989) 32 IR 110 followed

Morris & Ors v O’Grady & Ors (1991) 37 IR 196 cited

BARRY HANSCH, SEAN SCOTT LAWRENCE AND GARRY JOHN FISHER v TRANSPORT WORKERS’ UNION OF AUSTRALIA AND OTHERS

T2 OF 2000

MARSHALL J
MELBOURNE (HEARD IN HOBART)
6 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T2 OF 2000

BETWEEN:

BARRY HANSCH
FIRST APPLICANT

SEAN SCOTT LAWRENCE
SECOND APPLICANT

GARRY JOHN FISHER
THIRD APPLICANT

AND:

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, GLENN STERLE
RESPONDENTS

JUDGE:

MARSHALL J

DATE OF ORDER:

30 MARCH 2000

WHERE MADE:

HOBART

THE COURT ORDERS THAT:

1.Orders 1 and 2 of orders of the Court made on 23 March 2000 be set aside.

2.The Directions Hearing in the proceeding be adjourned to 9.30 am on Thursday 6 April 2000.

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	T2 OF 2000

BETWEEN:

BARRY HANSCH
FIRST APPLICANT

SEAN SCOTT LAWRENCE
SECOND APPLICANT

GARRY JOHN FISHER
THIRD APPLICANT

AND:

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, GLENN STERLE
RESPONDENTS

JUDGE:	MARSHALL J
DATE:	6 APRIL 2000
PLACE:	MELBOURNE

REASONS FOR INTERLOCUTORY JUDGMENT

1. On 17 March 2000 the applicants filed, in the Tasmania District Registry of the Court, an application purportedly made under ss218, 258 and 259 of the Workplace Relations Act 1996 (Cth) (“the Act”). On 23 March 2000, Heerey J made interim orders including the following:

   “(1)That until 30 March 2000 or further order the respondents be restrained from attempting to disband the Tasmanian branch of the first - named respondent.

   (2)That until 30 March 2000 the respondents, other than the first respondents (sic), until further order treat as null and void any attempt to disband the Tasmanian branch of the first - named respondent.”

2. On 30 March 2000 I heard an application by the applicants to extend the interim relief which was granted on 23 March 2000. I refused to do so and ordered that that part of the order of Heerey J of 23 March 2000 which is quoted above be set aside. What follows are my reasons for making that order.

   Factual background

3. The applicants are members of the Transport Workers’ Union of Australia (“the TWU”) in its Tasmanian branch (“the branch”). The respondents are the TWU itself and certain of its officers who comprise the Federal Council of the TWU (“the Federal Council”).

4. On 6 July 1998 the Federal Council resolved to disband the branch and provide for representation by persons formerly attached to it “directly by Federal Council”. That method of representation was purportedly permitted by Rule 23(3) of the registered rules of the TWU (“the rules”).

5. On 9 April 1999 I discharged a rule to show cause which I had previously granted. The rule to show cause sought to impugn the resolution of 6 July 1998. See Bramich v Transport Workers’ Union of Australia (1999) 89 IR 30, [1999] FCA 510. An appeal from my judgment succeeded on the narrow point that Rule 23(3) of the rules was invalid as contrary to s196(c) of the Act. See Bramich v Transport Workers Union of Australia [2000] FCA 135. The judgment of the Full Court was delivered on 21 February 2000.

6. The effect of the Full Court’s judgment in Bramich was that the Federal Council was still empowered to disband any of its branches in the specified circumstances referred to in Rule 23(1) of the rules but that the method of representation provided by Rule 23(3) was impermissible.

7. On 6 March 2000 the Federal Council resolved, inter alia:

   “…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 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 …”

8. On 14 March 2000 a solicitor acting for the applicants became aware of the foreshadowed meeting of the Federal Council for 27 March 2000. Shortly thereafter the application in this proceeding was filed.

   No valid election inquiry

9. At the commencement of the hearing on 30 March 2000 I raised with Mr Green, the solicitor for the applicants, whether any order had been made by a Judge of the Court pursuant to s219(b) of the Act that there is reasonable ground for the application. An examination of the transcript of the hearing before Heerey J on 23 March 2000 reveals that no such order was made. An order under s219(b) of the Act is required before an election inquiry can be said to have been instituted. This issue was thoroughly canvassed by Northrop ACJ in Australian Electoral Commission v Hickson & Ors (1997) 76 IR 399 at 404-405 where his Honour said:

   “Section 218 of the Act enables a person, being a member of an organisation who claims that there has been an irregularity in relation to an election for an office in an organisation, to make an application for an inquiry by the Court into the matter. In this section, the word “irregularity” is to be given its ordinary meaning but by definition contained in s 4 of the Act, “irregularity” includes, among other meanings, “a breach of the rules of an organisation”. In the present case, the Returning Officer is under a duty to comply with the Rules of the AMWU. If he wrongfully rejected a valid nomination, that action could constitute an irregularity within the inclusive meaning of that word in the Act. Likewise, if he wrongfully accepted an invalid nomination, that action could constitute an irregularity. This aspect will be mentioned further later in these reasons. Likewise, if he wrongfully declared a candidate elected unopposed, that action could constitute an irregularity.

   Section 219 of the Act is of importance. The section prescribes the method by which an application for an inquiry is to be instituted. On one view, no valid inquiry was instituted by Mr Hickson. Section 219 is set out:

   “219. Where:

   (a)an application for an inquiry has been lodged with the Court under section 218; and

   (b)the Court is satisfied that there is reasonable ground for the application;

   the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted.”

   It is noted that an inquiry is instituted after the Court is satisfied there is reasonable ground for the application. This requirement is designed to prevent spurious applications. It is noted that the Court determines who should be given notice of the application.

   At the time the application in this case was issued on 1 April 1997, O 48 of the Industrial Relations Court Rules (Cth) regulated the procedures to be followed with respect to inquiries under, among other provisions, s 218 of the Act. Order 48, r 2 provided that applications under s 218 were to be in accordance with the form prescribed by reg 62 of the Industrial Relations Regulations, now called the Workplace Relations Regulations. They are in the same form. Regulation 62 imposes time limits on the commencement of applications for an inquiry under s 218 and provides that the application shall be in accordance with Form 4 of the Regulations and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application. Form 4 is not a Court document. It does not specify the naming of parties. It requires the applicant to be named and certain other information to be included. It is a document to be put before the Court to enable the Court to determine whether an application for an inquiry under s 218 should be instituted. In the present case, no application under reg 62 or Form 4 was made. No statutory declaration or affidavit was made. The Court did not fix a time and place for conducting the inquiry. The Court did not give directions to ensure all persons who were or may have been justly entitled to appear at the inquiry be given notice of the inquiry.

   In the present case, an application for an inquiry dated 1 April 1997 was issued on 4 April in the Industrial Relations Court of Australia, but has been transferred to the Federal Court. This application was a Court document issued in conformity with O 4 and Form 5 of the Court Rules. It named Mr Hickson as applicant and Mr Jones and Mr Bastian as respondents. It gave notice that a directions hearing on the application would be heard by the Court on 10 April 1997 and that if the respondents did not appear judgment might be given in their absence.

   The Court does not take any action on this matter. It was a procedure which hindered the proper consideration of the application and to some extent led to confusion. It is important that the proper procedures for an election inquiry should be followed. The procedures could affect the entitlement of an application for costs to be paid by the Commonwealth. Reference should be made to the Act for provisions relating to costs of an inquiry into an election. Generally see s 342 and in particular s 342(1), (2)(d) and (f) and s 343(1). In addition ss 346 and 347 may be relevant.”

10. The observations of Northrop ACJ in Hickson referred to above were adopted by Branson and Marshall JJ in Hickson at 418 - 419.

11. Consequently, there is Full Court authority for the proposition, which is obvious from the very terms of s219 of the Act, that a litigant is unable to invoke s218 of the Act without the Court first determining whether reasonable grounds exist for the application. Similarly, no application can be made under ss208 or 209 of the Act in the absence of the granting by the Court of a rule to show cause. The effect of Hickson for current purposes is that the application in the instant proceeding did not result in the institution of an inquiry but can only be considered as an application made under ss258 and 259 of the Act.

12. When I referred Mr Green to Hickson he said as follows:

    “It may well be that I can only pursue this application pursuant to those two sections [ss258 and 259] … I was not familiar with the procedures your Honour has referred me to … Therefore I will proceed as though it is an application under section 258 and 259, your Honour.” (Emphasis supplied).

    Later Mr Green said that: “In this case, as your Honour has pointed out there is yet no valid inquiry ... .” (See pp3 and 6 of the transcript).

13. Understandably, I considered that by making the comments above, Mr Green had made a concession, consistent with Hickson, that no valid application for an election inquiry was before the Court. In reply, Mr Green sought to resile from that concession. Mr Green said that, “… may I say that I do not concede that there is no s218 application properly before you, I do not make that concession”. (See p.46 of the transcript). It is ultimately irrelevant whether any such concession was made because Hickson makes it clear beyond doubt that the Court (and only the Court) can institute an inquiry by an appropriate order under s219(1)(b) of the Act. No such order has been made. Mr Green did not invite the Court to make any such order despite the Court giving him the opportunity to consider further the position of the applicants on 30 March 2000 and make any appropriate application. It is indisputable that no Judge of the Court has made an order that reasonable grounds exist for the inquiry which the applicants seek to institute and that no Judge has been requested to do so.

    Interlocutory relief sought

14. In the application under ss258 and 259 of the Act, interlocutory relief was sought in the following terms:

    “A.That until further order the Respondents be restrained from attempting to disband the Tasmanian Branch of the firstnamed Respondent.

    B.That the Respondents other than the firstnamed Respondents (sic), until further order, treat as null and void any attempt to disband the Tasmanian Branch of the firstnamed Respondent.”

    Final relief sought

15. The final relief sought under ss258 and 259 of the Act is contained in paragraphs 2 and 3 of the application which state as follows:

    “2.A declaration that an invalidity has occurred in the election or appointment of the officers of the Tasmanian Branch … .

    3.A declaration that the officers (sic) and positions referred to … are vacant and there are no effective means under the Rules of the organisation to fill the said officers (sic) and/or positions.”

    No serious issue to be tried

16. In my opinion, the application is fundamentally misconceived. Based on the evidence and submissions advanced so far I do not consider that it raises a serious issue to be tried. There is no arguable case that an invalidity, within the context of the validation provisions of the Act, has occurred in an election in the branch. The concern of the applicants is not that an election was improperly or irregularly conducted but that it was not conducted at all. The last election for offices in the branch was conducted prior to the purported disbandment on 6 July 1998. Persons who were last elected to office in the branch were elected for a term which expired on 20 April 1999. Until those persons resign they continue to hold office by virtue of the doctrine of “holding-over”.

17. The rules evince an intention that there be no lacuna in the event that the term of an office expires but no person is elected to that office for a subsequent term. For example, Rule 62(24) provides that:

    “Persons declared elected to the positions referred to in sub-rule (2) take office on 20 April in every fourth year after 1995, and the retiring persons continue to hold office in the meantime.”

    See also Rule 62(31) which provides that:

    “Where there is an inquiry in any court into any election held in accordance with this rule, the intention of the Rules is that any candidate in the challenged election who held office prior to the election will continue to hold office until the inquiry is completed.”

18. Properly understood, the doctrine of “holding over” applies such that persons who were elected to office in the branch continue to hold such offices (absent resignation) until their successors are elected. See McLure v Mitchell & Anor (1974) 24 FLR 115 at 126-127, per Joske J, Allshorn v Stapleton & Ors (1984) 4 FCR 236 at 238, per Woodward and Northrop JJ and Grove v Cameron & Ors (1972) 21 FLR 59.

19. Contrary to Mr Green’s submissions, there has been no invalidity in “an election” within s258(1)(b) of the Act but merely a failure to arrange for elections to be held being elections which were due to be conducted commencing with the calling for nominations in November 1998 and elected persons taking up office in April 1999. Those elections are overdue but, absent valid disbandment of the branch, there remains a duty to conduct them. See Re Gill (Gray J, 4 September 1984, unreported); Re Australian Glass Workers’ Union (1973) 22 FLR 17 at 19, per Smithers J and Grove at 66, per Spicer CJ and Smithers J.

20. In the event that I am in error in forming the view that no serious issue arises with respect to s258 of the Act, the balance of convenience dictates that injunctive relief be declined. Validation applications are inappropriate vehicles to secure overdue elections. They should only be invoked where there is an “extreme difficulty” in curing the alleged invalidity. See Re Professional Radio and Electronics’ Institute of Australasia [1980] Ind Arb Service, Current Review, 169 at 173, per J B Sweeney J. See also Jess v Scott & Ors (1986) 14 IR 341. The appropriate remedy in circumstances where an election is overdue is to apply to the Court for an order to institute an election inquiry in a proper way in accordance with the observations of Northrop ACJ in Hickson.

21. I am also of the view that no serious issue arises with respect to that part of the application which seeks to invoke s259 of the Act. Section 259(1)(b) of the Act enables the applicants to seek a declaration that offices in the branch are vacant and that there are no effective means under the rules to fill them. There is no evidence before me that any person who was elected in 1995 has resigned an office to which such person was elected. A necessary precondition for a declaration under s259(1)(b) of the Act is not established on the current state of the evidence. If I am in error on the question of serious issue to be tried I believe that the balance of convenience considerations relevant to the s258 part of the application apply with equal force to the application insofar as it relies on s259. In a properly instituted election inquiry the Court may vary the timeframe provided by the rules to facilitate a sensible program for the overdue elections.

22. That is not to say that in a properly constituted election inquiry the Court would necessarily order a new election. Discretionary considerations may lead to a contrary result.

    Other issues

23. It is unnecessary to deal with Mr Moore’s submission that the Court has no jurisdiction to grant interlocutory relief in applications under ss258 and 259 of the Act. I have assumed for the purposes of these reasons that such jurisdiction exists.

24. I also find it unnecessary to deal with Mr Green’s allegation that the Federal Council’s further consideration of disbandment of the branch is affected by bad faith. The decision to reconsider the disbandment issue is irrelevant to the grant of any final relief under s258 or s259 of the Act. The interim relief sought in the current application must in some way be related to the subject matter of the final relief sought. But the relevant connection is missing in this case. In any event, on the question of balance of convenience the Court should be reluctant to permit back-door challenges to decisions of committees of management of organisations when it is more appropriate for such decisions to be the subject of challenge under s209 of the Act. See Scott at 347, per Wilcox J.

1. I am not satisfied, as the evidence now stands (in a context where bad faith is alleged and denied in affidavit material on either side admitted without cross-examination) that the applicants have satisfied the onus which they must discharge to prove bad faith. See Porter & Anor v Davis& Ors (1989) 32 IR 110 where Gray J said at 117:

   “It is also clear that the onus of proving lack of bona fides or the presence of an ulterior motive rests upon the party seeking to establish those elements.”

   See also Morris & Ors v O’Grady & Ors (1991) 37 IR 196 at 210, per Gray J.

2. More importantly in the present matter, there is no evidence that the mere decision to reconsider the question of disbandment was affected by bad faith. There is also no evidence before the Court that such decision was made “dishonestly”. See Morris at 214, per Gray J.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             11 April 2000

Counsel for the Applicant:	Mr J Green
Solicitor for the Applicant:	John Green
Counsel for the Respondent:	Mr S Moore
Solicitor for the Respondent:	Jeremy Smith
Date of Hearing:	30 March 2000
Date of Order	30 March 2000
Date of Judgment:	6 April 2000 (ex tempore as revised from the transcript)