Hughes, James Patrick v Dunnery, John

[1986] FCA 312

Industrial law	- Interim order	- Tests to be applied	- Balance of
convenience.

Trade Practices Act_ 1974

-_ Conciliation and Arbitration Act 1904 s s . 141(2), 133(l)(f)

Craven-Ellis v. Canons Ltd. C19363 2 K.B. 403

Beecham Group Limited v. Bristol Laboratories Ptv. Limited (1967)

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118 C.L.R. 618

Re Evans; Re Hospital Employees Federation of Australia (1984) 8

I.R. 299

Bullock v. The Federated Furnishinq Trades Societv of Australasia

(No. 1) (1985) 5 F.C.R. 464

JAMFS PATRICK HUGHES v. JOHN DUNNERY & ORS.

S.A. No. 5 of 1986

GRAY J.

ADELAIDE

26TH MAY 1986

IZSU?IT"L COURT OF

IN - .__ THE FEDERAL -- COURT OF AUSTRALIA)

)

SOUTH - AUSTRALIA DISTRICT REGISTRY) S.A. No. 5 of 1986 I' .

1 / ,

D VISION	INDUSTRIAL	)	I
I

B E T W E E N :

L A S PATRICK HUGHES

Applicant

I S

t i.

AND I

Respondents

JUDGE:	GRAY J.
U:	26TH MAY 1986

M TEMPORE REASONS FOR JUDGMENT

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On 16th May 1986. the branch executive of the South

Australian branch of the Australian Workers' Union resolved to "immediately appoint an additional organiser with particular

reference to coveraqe of Roxby Downs." The branch executive then

proceeded to conduct a kind of election for the filling of that

position. Two nominations were received, one of which was the

respondent John Rajan Thomas. Mr. Thomas was appointed by the

branch executive by a 4 to 3 majority.

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On 22nd May 1986, the applicant obtained a rule to show

cause, calling upon the members of the branch executive to

perform and observe the rules of the Australian Workers' Union,

firstly by refraining from taking any action to implement that

resolution, and secondly by treating the resolution as null and

void. The application is made pursuant to S. 141 of the

Conciliation and Arbitration Act 1904. What is presently before me is an application pursuant to sub-S. ( 2 ) of that section for

an interim order, pending the trial of the proceeding. In

substance, the applicant seeks. pending the trial, an order that

the respondents refrain from taking any action to implement the

resolution, and treat it as null and void.

It is common ground f o r the purposes of this application

that the Australian Workers' Union ( "the union" 1 is an

organisation registered pursuant the o Conciliation and

Arbitration Act 1904	("the Act"), and that the applicant is a
member of the union.

At the outset a question may arise as to the appropriate

test or tests to be applied on applications of this kind for

interlocutory relief. There have been several authorities in

which the principles laid down by the High Court in Beecham Group

Limited v. Bristol Laboratories Ptv. Limited (1967) 118 C.L.R.

618, at pages 622-623, for the consideration of statutory

interlocutory injunction applications have been adapted to and

applied in applications of this kind. Those authorities are

conveniently set out in the judgment in Re Evans; Re Hospital

aplovees Federation of Australia (1984) 8 I.R. 299. To that

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list of authorities there might be added a reference to Squires

i v. Stephenson (1979) 53 F.L.R. 164.

Since that time the Full Court of this Court has

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rejected the B echam test in considering interlocutory

injunctions under the Trade Practices Act: see Bullock v. The

Federated Furnishins Trades Society of Australasia (No. 1) (1985)

5 F.C.R. 464, especially at pages 471-472 in the judgment of

Woodward J. The question may. therefore, arise whether the Court

should reject hat approach in considering interlocutory

applications under S. 141(2) of the Act.

. Whatever is to be the appropriate test at this stage of

the case, it seems that the test must involve consideration of

two matters. In the first place, the Court must look to see I

whether the case put forward by an applicant is sufficient to F'.

ensure that the Court will not simply be wasting its time in	!
considering the matter. In other words, there must be some prospect of the applicant succeeding at the trial of the proceedings. Whatever the level of that prospect may be might be
a matter for debate. The second stage which the Court must
consider is the balance of convenience, that is the respective

benefits and disadvantages to the parties of the making or

refusing of an interlocutory order. It . i s necessary to consider

the balance of convenience to ensure that,	so far as is possible,
justice is done at the interim stage.

I turn then to consider the first stage, namely what the	r
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applicant's prospects of success may be. The applicant's

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arqument relies heavily on the fact that specific provisions

exlst in the rules with respect to organisers, and particularly

with respect to their election by members of branches. His

contention is that these specific provisions impliedly exclude

any power on the part of a branch executive to appoint

orqanisers, except a power to appoint persons to fill casual

vacancies for elected organisers.

Reference is first made to two definitions in rule 4 of

the rules. The first is the definition of "officer" in sub-rule

(e) which is in the following terms:

"Officer" shall include the President, Vice-Presidents,

General Secretary, Branch President, Branch

Vice-Presidents, Branch Secretary, District Secretaries,

President and Secretary	of the Mining Division of the
West Australian Branch,	Branch Executive Councillors,

Branch Executive Committeemen. and elected Organisers,

Delegates to Convention and Delegates to Delegate

Meeting Queensland Branch."

It is significant to note that the only one of those positions

listed in this definition to which the adjective "elected" is

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applied is "organisers". This tends to suggest that the rules

contemplate the existence of organisers other than those who are

elected, as well as those who are elected. The second definition

is in sub-rule (h) and is as follows:

"Organiser" means a member elected in manner hereinafter

appearing or appointed by a Branch Executive or

Convention or the Executive Council to advocate the

principles of Unionism and promote the organisation and

enrolment of members.

The applicant says that the word "appointed" in this definition refers only to appointments to fill casual vacancies in the

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office of organiser. No specific power appears elsewhere in the

rules for the branch executive, or the convention or executive

council, to appoint organisers, except for powers to fill casual

vacancies which appear in rule 39(g) (relating to the executive

council), and rule 65 (relating to the branch executive). These

powers are not restricted to organisers, but are general powers

to fill casual vacancies in various offices.

By rule 68 of the rules, nominations for various offices must be received every four years. Some debate took place as to

whether this means that all officers within the South Australian

branch of the union are elected each four years or whether the

elections for the various offices are staggered from year to

year. Because no evidence was led, at this stage it is

impossible for me to make a finding upon that question; suffice

it to say that the rule appears to contemplate that all officers

will be elected each four years and that there will not be a

staggering of elections for some offices from year to year. Of

course, the rule does make provision for annual elections for

those officers whose terms of office are only for one year.

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Under rule 69, if there are more nominations than

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positions available, ballots are to be held and a time table is

laid down. Rule 71 gives the riqht to vote to each member who is

financial, and also to the holders of tickets under rule 8

(honorary members). Under rule 64(a) the branch executive is

required to determine, prior to the date for the calling of

nominations for the regular elections of officers, the number of

orqanisers to be elected at such election. The rules, therefore,

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appear to contemplate that the branch executive will decide what

number of elected organisers is required, and will take steps to

ensure that elections for those positions are held in conjunction

with the elections for other officers.

Sub-rules (b) and (c) of rule 64 are of considerable

interest. Sub-rule (b) requires that all organisers shall in all cases conform to the direction of the branch secretary, district secretary or divisional secretary by which they are employed.

Sub-rule (c) provides that all organisers shall be subject to

removal from office pursuant to rule 58(c). Rule 58(c) echoes

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the provisions of S . 133(l)(f) of the Act. These provisions

appear to suggest that all organisers are elected. If this were not so. unless rule 58(c) were construed as not applying to the appointed organisers, appointed organisers would have greater

tenure than those elected. which would be unusual.

Under rules 59 and 78. in a branch without districts,

such as the South Australian branch, the highest authority of the

branch is the branch executive, and that is the body which has

power to manage the branch. Finally rule 58(f) provides specific

power for the branch executive to appoint an acting branch

secretary or district secretary for a limited period.

As may be seen from this summary of the rules, there are

factors in the rules which point both in favour of and against

the applicant's case. The applicant's case is supported by rule

64 and to some extent bp rules 58(c) and (f). Aqainst his case

are the specific references to elected organisers in the

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definition of "officers" in rule 4 (e and the possible power to

appoint, which might be construed as being given to the various

governing bodies in the definition of "organiser" in rule 4(h).

It should be noted that the principle that a specific

mention in a document of one subject impliedly excludes other

subjects not mentioned is not aprinciple of automatic

application, but only an aid to the construction of the document.

See Pearce Statutorv Interpretation in Australia, 2nd ed., para.

56 .

The question of the proper construction of these rules cannot be determined finally on an interlocutory application.

Indeed, it is undesirable that the Court should say too much

about that question at this stage. If it is enough that a

serious question to be tried b raised, then I am satisfied that

such a question has been raised by the applicant. If a prima

facie case were required to be made out, then I have some doubt

whether I would be so satisfied, assuming that a prima facie case

means more than a serious question to be tried.

There was an attempt made by counsel for the applicant

to suggest that the appointment of Mr. Thomas may be liable to be

set aside, because it was made in bad faith or bv reason of an

improper purpose. This suggestion was based on the facts that

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the new executive is due to take office on 1st June, Mr. Thomas

failed to gain election to the new executive and to the position

of organiser at the last regular elections, no previous notice

was qiven by advertisement or otherwise of any intention to

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appoint an organiser, and Mr. Thomas was present and votinq at the meeting which appointed him. The affidavit on which the rule to show cause was obtained did not raise bad faith or improper

purpose as an express allegation, although it did refer to some

of the facts which I have just summarised.

All of those matters may be susceptible of innocent

explanation. If the preamble to the resolution to appoint an

additional orqaniser is accepted at face value, then reasons t existed on which that decision could be based. There is nothing

before me at this interlocutory stage to say that I should not

accept those statements in the preamble. Although he was not

appointed to the position of organiser at the regular elections,

Mr. Thomas did receive the seventh highest vote out of nine

candidates for six positions of organisers. It would not

necessarily be unreasonable for a branch executive to look to him

if it were felt to be proper to appoint an additional organiser.

It is agreed on the facts that Mr. Thomas has been a member of

the union since about 1972, a job representative for about seven

years and a member of the branch executive for about four years. probably unnecessary as a matter of law. It should be noted that

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the other candidate for the position was also a member of the

branch executive, although the evidence does not disclose whether

he was present and voting on 16th May.

For these reasons I would not be disposed to regard

these allegations as raising a serious question to be tried or a

prima facie case on the evidence before me at this stage.

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Assuming that the applicant has satisfied the first stage by his

arqument on the construction of the rules,	I need to turn to the
question of the balance of convenience.

Here some agreed facts are relevant. Mr. Thomas was

employed by the Corporation of the City of Burnside from 1972.

After the meeting of the branch executive on 16th May, he gave

one week's notice to his employer of termination of that

employment. That notice was posted on Sunday 18th May, addressed

to the town clerk. Monday 19th May was a public holiday in South

Australia. On Tuesday 20th May, Mr. Thomas attended at his place

of work at 7.30am. He was met by the branch secretary, the

respondent Begq, who handed him a letter dated 19th May	1986.
That letter was in the following terms:

"I have to-dayCsic.1 received a letter from a

member of the union concernlnq the decision taken by the

Branch Executive to appoint you as an organiser.

This letter notifysCsic.3 me that an application for an

injuctionCsic.1 will be saughtCsic.3 forthwith, to

restrain myself and the Branch Executive from acting on

that decision in any way.

Accordinsly I suggest that you should not take any steps to terminate your Services with the Burnside Council

until the outcome of the Legal proceedings,	I	have
mentioned is concluded."

Mr. Thomas did not take steps to deflect his notice of

termination from its path to the town clerk, or to revoke it if

it were already received. His contract of employment with the

City of Burnside has therefore come to an end by reason of the

expiration of the notlce or earlier by agreement between the

emplover and him. Unless he is able to take up the appointment

as an organiser he will be unemployed and without income, at

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least until he can find an alternative job.

It must be remembered that in applications of this kind

the Court considers the balance of convenience pending the trial.

I expect that the trial of this matter will only be a matter of

weeks or perhaps months away. It is unlikely to be a long trial.

If Mr. Thomas were now compelled to seek other employment and

were subsequently succeed, to will he have suffered

substantially. On the other hand, if he takes up the duties of

an organiser and receives pay, and the applicant subsequently detrimental to the union's interests, it could no doubt take whatever lawful action may be open to it to terminate that employment.

succeeds, the union will not have suffered as greatly. It will

have received the benefit of Mr. Thomas's services, even though

it will have to pay for them. Even if the appointment proves not

to have been justified by the rules, Mr. Thomas would probably be

entitled to remuneration for services rendered. See Craven-Ellis

v. Canons Ltd. C19363 2 K.B. 4 0 3 . Payment for a short period is

not likely to be severely detrimental to the union's finances.

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It was argued that Mr. Thomas had not safeguarded his

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position by endeavouring to continue his. employment with the City i .'%.

of Burnside. There is no reason why an appointee should in

effect abandon his position, or why a resolution of the branch

executive should not be carried out, just because notice is given

that it will be challenged. Such an argument would put too much

pressure on the person appointed and would enable one person to

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hold up the operation of any decision by intimating his or her

intention to challenge it.

In my view, the balance of convenience favours allowing

Mr. Thomas to take up the appointment pending the trial. For that reason, if for no other, the application for interlocutory relief must be dismissed.

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