In the matter of the Conciliation and Arbitration Act Linehan, Desmond Lawrence (on behalf of the Industrial Relations Bureau) The Australian Public Service Association (Fourth Division Officers)
[1983] FCA 171
•29 JULY 1983
Re: DESMOND LAWRENCE LINEHAN
And: THE AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS)
(1983) 67 FLR 412
Vic. Nos. V7 and 8 of 1982
Industrial Law - Conciliation and Arbitration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fox(1), Lockhart(2) and Fitzgerald(3) JJ.
CATCHWORDS
Industrial Law - Case Stated - Criminal Offence - Admissibility of agent's statements as admissions against principal - Validity of acts done in breach of rules - Whether invalid act can constitute offence - Whether act of Branch is act of Organisation - Meaning of "impose".
Conciliation and Arbitration Act 1904 - ss. 121, 140(1)(a), 188, 191(1).
Federal Court of Australia Act 1976 - s. 25(6).
Judiciary Act 1903 - s. 78B.
Commonwealth of Australia Constitution Act - ss. 51(xxxv), 51(xxxix).
Conciliation and Arbitration - Offence by organisation - Admissibility of branch secretary's statements as admissions against branch - Validity of acts done in breach of rules - Whether invalid action can constitute offence - Whether act of branch is act of organisation - Meaning of impose a penalty - Conciliation and Arbitration Act 1904 (Cth), ss. 121, 140(1)(a), 188, 191(a).
HEADNOTE
Prosecutions were brought against the defendant (the organisation) alleging that contrary to s. 188(1)(e) of the Conciliation and Arbitration Act 1904 the organisation imposed penalties by way of fine on two of its members because they failed to join in industrial action in attending work when their fellow workers failed to attend work. A single judge of the Federal Court stated a case to the Full Court arising out of these prosecutions.
Held per curiam - (1) Letters written by the secretary/treasurer of the Queensland branch of the organisation informing the members of the penalty imposed upon them were admissible as evidence of the passing of the resolutions of the Queensland branch referred to therein as the secretary/treasurer had implied authority to write the letters and make admissions on behalf of the branch and the organisation. The letters proved the imposition of the penalty in respect of the members.
Fraser Henleins Pty Ltd v. Cody (1945) 70 CLR 100; Kirkstall Brewery Co. v. Furness Railway Co. (1874) LR 9 QB 468; Australasian Brokerage Ltd v. Australian and New Zealand Banking Corp. Ltd (1934) 52 CLR 430 at 450-451, referred to.
(2)(a) It is sufficient to attract the operation of s. 188(1)(e) that an organisation purports to impose a penalty upon a member whether that imposition is otherwise effective in law or not.
Squires v. Flight Stewards Association of Australia (unreported, Ellicott J., 19 August 1982) not followed.
(b) The decision to impose a penalty upon the members was invalid, as the meeting of members of the organisation lacked power to impose it and the rule under which it was imposed only gave power in respect of decisions which did not contravene the law.
(Per Fox J.). Section 188(1) referred to the adjudicative act which imposed the penalty.
Cook v. Crawford (1982) 43 ALR 83, 148-154, referred to.
(c) The decisions by the Queensland branch of the organisation did bind the organisation.
(Per Fox J.). The organisation cannot act in such a case except through the branch.
(Per Fitzgerald J.). By the operation of the defendant organisation's rules, it is the defendant organisation which acts when a branch committee of management acted under the rules.
HEARING
1983, February 10, 11, 18; July 29. #DATE 29:7:1983
CASE STATED.
In proceedings alleging breaches of s. 188(1)(e) of the Conciliation and Arbitration Act 1904 (Cth), a case was stated for a Full Court of the Federal Court of Australia pursuant to s. 25(6) of the Federal Court of Australia Act 1976 (Cth).
B.J. Shaw Q.C. and P. Buchanan, for the prosecutor.
P.R.A. Gray, for the defendant.
Cur. adv. vult.
Solicitors for the prosecutor: B.J. O'Donovan, Commonwealth Crown Solicitor.
Solicitor for the defendant: Maurice Blackburn & Co.
T.J.G.
ORDER
The questions for separate decision by the Court be answered as follows:
(1) Whether the letters, annexures "C", and "D" are admissible against the defendant organisation as proof of the matters stated therein.
- Yes.
(2) (a) Whether it was established by evidence admissible against the defendant organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981:
- Yes.
(b) If yes, to (2)(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation -
(i) was valid;
- No
(ii) was invalid by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
- Yes, by reason of paragraph 188(1)(e) of the Act.
(iii) was invalid otherwise than by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
- It is not necessary to answer this question.
(iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act.
- Yes.
(c) If yes to (2)(b)(iv), whether the penalty imposed on Michael David Bryant by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on. 13 February 1981 within the meaning of paragraph 188(1)(e) of the Act.
- Yes.
(3) (a) Whether it was established by evidence admissible against the defendant organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of members of the defendant organisation in Toowoomba on 13 February 1981, that "This Meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period" and for failing to abide by a direction of the Federal Committee of the defendant organisation that "All A.P.S.A. members are directed to cease work from midnight the 23rd February - midnight the 24th February 1981".
- Yes.
(b) If yes to (3)(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation -
(i) was valid;
- No.
(ii) was invalid by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
- Yes, by reason of paragraph 188(1)(e) of the Act.
(iii) was invalid otherwise than by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
- It is not necessary to answer this question.
(iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act.
- Yes.
(c) If yes to (3)(b)(iv), whether the penalty imposed on John Richard Thurecht by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of paragraph 188(1)(e) of the Act.
- Yes.
(4) If yes to (2)(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981.
- Yes.
(5) If yes to (3)(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981.
- Yes.
(6) If no to (4) or to (5), is sub-section 188(4) of the Act -
(a) a law for the peace order and good government of the Commonwealth of Australia with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s. 51(xxxv) of the Constitution of the Commonwealth of Australia;
(b) a law for the peace order and good government of the Commonwealth of Australia with respect to matters incidental to the execution of the power vested by the said s. 51(xxxv) of the Constitution of the Commonwealth of Australia and the Parliament of the Commonwealth of Australia within the meaning of s. 51(xxxix) of the Constitution of the Commonwealth of Australia;
(c) otherwise a valid law of the Parliament of the Commonwealth of Australia under the Constitution of the Commonwealth of Australia.
- This question does not arise.
(7) If yes to any of (6)(a), (6)(b), or (6)(c), is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981.
- This question does not arise.
(8) If yes to any of (6)(a), (6)(b), or (6)(c), is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13 February 1981 and/or on 24 February 1981.
- This question does not arise.
(9) Is the defendant organisation guilty of the offences charged or either and if so which of them.
- This is a matter for determination by the trial Judge.
JUDGE1
This is a special case stated by a Judge of the Court (Fitzgerald J.), sitting in the Industrial Division, under s. 25(6) of the Federal Court of Australia Act 1976. Some questions asked required decisions as to the constitutional validity of certain provisions of the Conciliation and Arbitration Act 1904, and notices were given under s. 78B of the Judiciary Act to the Attorney-General for the Commonwealth and to the Attorney-General for Victoria. The former appeared by counsel for the prosecutor (Desmond Lawrence Linehan), and the latter indicated that he did not wish to be heard. The proceedings were instituted in the Victorian Registry of the Court, where the registered office of the Organisation is. In the event, I do not find a decision of a constitutional nature to be necessary.
The facts, and particulars of the stated case, as well as references to the relevant statutory provisions and rules of the Organisation are set out in the judgments of Lockhart J. and Fitzgerald J. and I shall not repeat them. I agree with the answers proposed by Lockhart J. and, in general, with his reasons. I shall content myself with setting out, in summary form, my reasons on the more significant matters.
There are three principal questions. One is as to the admissibility against the Organisation of the letters of 22 April and 1 May. It seems to me that the role of the Branch, and the Committee of Management of the Branch, in relation to disciplinary matters, is such that its proper officer is a person entitled to admit the result of its proceedings in relation to those matters, and to admit these so as to bind the Organisation (see s. 140(1)(d); rules 52, 53, 60, 76 of the Organisation's registered rules). Plainly, correspondence concerning those matters is properly initiated and received by the Branch Secretary, as is shown by earlier correspondence stating the charges, which was admitted without objection. The letters in question, as written, notified the addressees of the right of appeal to the General Meeting.
There is a question as to whether, for the purposes of this stated case, the letters should be regarded as admissions of notification of the penalties to the addressees by the Secretary/Treasurer. It seems to me that on a fair reading of the stated case this should be the conclusion. The particular relevance of the question is whether, when s. 188(1)(e) uses the word "impose", this implies the need for notification. It seems to me that the imposition of a penalty does not normally require either the sending or receipt of notification; but refers to the adjudicative act, and this creates the liability to pay the penalty. The context of s. 188(1) reinforces this conclusion in the present case. The resolution, or decision, of the Committee of Management of the Branch, creates the liability. Notification is not required for this purpose. It is not to the point that, because of the invalidity of the resolution, the Organisation could not sue successfully in the present case (see rules 60(3) and 41(3)).
The second principal question is whether there can be a breach of s. 188(1)(e), notwithstanding the fact that. charges common to both men were based on a failure to comply with a resolution or decision against working which was not binding under the rules, and, notwithstanding the lack of power in the Committee for this and other reasons, to impose the fines. The lack of power flows from:
(a) the direct application of s. 188(1)(e);
(b) the application of s. 188(1)(e) through s. 140 of the Act; or
(c) the ordinary construction of rule 76.
In my view, none of these defects in power negatives the adjudicative act. The Committee formally and deliberately passed the resolution the subject of the present charges under s. 188(1)(e). It purported to exercise a power, given to it in general terms, without any limitation. This remains an act cognizable under the law, notwithstanding the lack of power (see Gower's Principles of Modern Company Law. 4th ed. (1979) pp. 169-170).
The next question is whether the Organisation is liable under s. 188(1)(e) for what the Committee did. This is not the same question as that already dealt with relating to the admissibility of the letters against the Organisation, although most considerations are common to both. Here the question is one of identity, for relevant purposes, between the Organisation and the Committee; whether the act of the Branch Committee can properly be regarded as the Act of the Organisation. It is my view that for disciplinary purposes affecting members, at the first instance level, the Organisation acts through its Branch Committees of Management (s. 140(1)(d); rule 76). The Organisation cannot in such a case act except through the Branch.
I answer the questions asked, as they have been answered by Lockhart J.
I do not find it necessary to turn to s. 188(4)(b). A paragraph in the same terms is found in s. 144A(9). Section 188(4) does not in my view lead to an inference that in its absence the acts of the various bodies or persons mentioned are not those of the Organisation. So far at least as para. (b) is concerned, I regard it as being introduced for more abundant caution, and perhaps to deal with cases not coming within common law principles. Its validity was attacked as being beyond Commonwealth legislative power (see The Queen v. Bowen and Others; Ex Parte The Amalgamated Metal Workers and Shipwrights' Union (1980) 144 C.L.R. 462; The Queen v. Sweeney and Another; Ex Parte Northwest Exports Pty. Limited (1981) 147 C.L.R. 259, 264, 273, 276), but, as I have indicated, I do not find it necessary to consider this question.
JUDGE2
This is a Case stated by a single Judge of this Court to the Full Court pursuant to sub-s. 25 (6) of the Federal Court of Australia Act 1976. The Stated Case arises out of two prosecutions commenced on behalf of the Industrial Relations Bureau by Desmond Lawrence Linehan ("the Prosecutor") against the Australian Public Service Association (Fourth Division Officers) ("the Organization"). The charges are that, contrary to para. 188 (1) (e) of the Conciliation and Arbitration Act 1904 ("the Act") the Organization imposed penalties by way of fine on two of its members, Michael David Grant and John Richard Thurecht, in effect because they failed to join in industrial action in attending work when their fellow workers failed to attend for work.
The Stated Case includes the following statements relevant to the questions raised for our consideration:-
"I. The Australian Public Service Association (Fourth Division Officers) ("the Organization"), is and was at all material times an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act").
. . .
3. At all material times, each of Michael David Bryant and John Richard Thurecht was:
(a) employed by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba in the State of Queensland; and
(b) a member of the Organization.
4. On 13 February 1981 meetings of persons who were members of either the Organization or the Administrative and Clerical Officers' Association, Australian Public Service took place at various centres in Australia including Toowoomba.
5. The meeting which took place at Toowoomba on 13 February 1981 was neither a general meeting of the members of the Organization nor a general meeting of the members of the Queensland Branch of the defendant Organization.
6. Neither the Federal Secretary/Treasurer of the Organization nor the Secretary/Treasurer of its Queensland Branch was present at the meeting at Toowoomba on 13 February 1981.
7. As a result of a decision taken at the meeting at Toowoomba on 13 February 1981 some persons, including some members of the Organization employed by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba, stopped work on that day without the authority of their employer, prior to the time at which they were entitled to do so.
8. Neither Mr Bryant nor Mr Thurecht attended the meeting at Toowoomba on 13 February 1981 and each continued to work on that day until excused by his employer.
9. (a) Prior to 24 February 1981, the Federal Secretary/Treasurer of the Organization directed its members not to attend for work on 24 February 1981.
(b) The members of the Federal Committee of the Organization were unanimous that the members of the Organization should be so directed by the Federal Secretary/Treasurer.
(c) Prior to the direction being given, the Federal Secretary/Treasurer of the Organization was separately informed by each of the other members of the Federal Committee of the Organization that he or she agreed to the direction being given.
(d) No resolution was passed at a meeting of the Federal Committee of the Organization that its members should be so directed by its Federal Secretary/Treasurer.
10. On 24 February 1981, some members of the Organization failed or refused to attend for work without the authority of their respective employers.
11. On 24 February 1981 Mr Bryant was on leave. On that day Mr Thurecht attended work and perfomed his normal duties.
12. A letter dated 8 April 1981 was written to each of Mr Bryant and Mr Thurecht by the Secretary/Treasurer of the Queensland Branch of the Organization. The letter to Mr Bryant is annexure "B". The letter to Mr Thurecht was in identical terms. The letters were admitted into evidence without objection from the Organization."
The letter is in the following terms:-
"I have been requested by your fellow workmates to officially charge you under the Rules of this Association for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of A.P.S.A. members in Toowoomba on the 13th of February 1981 at 12.30 pm.
That resolution being as follows - 'This meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period.'
A.P.S.A. members who were not present at that meeting of the 13th of February 1981 were duly notified of the decision, which you failed to abide by.
Also you are officially charged for failing to abide by a direction of the Federal Committee.
That direction being - 'All A.P.S.A. members are directed to cease work from midnight the 23rd of February - midnight the 24th of February 1981.'
It has been reported that you did infact (sic) report for duty on this day with the full knowledge of the above direction.
You are therefore (sic) formally charged with failing 'to comply with a decision which is binding on members in accordance with the Rules of the Association.' (Rule 76).
You are summonsed to appear before the next Committee of Management meeting to be held on the 21st of April 1981 at 9.00 am at the Branch Office A.C.O.A. House, 297 Adelaide Street Brisbane.
You will have the opportunity to be heard in your defence at this meeting. You may reply to the charges in writing if you so wish.
Should you fail to attend this meeting a decision on the above charges will be made in your absence."
13. After Mr Bryant informed the Secretary/Treasurer of the Queensland Branch of the Organization that he had been on leave on 24 February 1981 the allegation that he had reported for duty on that day was abandoned.
14. Correspondence was exchanged between each of Mr Bryant and Mr Thurecht and the Secretary/Treasurer of the Queensland Branch of the Organization between 8 April 1981 and 21 April 1981.
15. A letter dated 22 April 1981, a copy of which is annexure "C", was written to Mr Bryant by the Secretary/Treasurer of the Queensland Branch of the Organization."
That letter is in the following terms:-
"At the Committee of Management Meeting, on the 21 April 1981 charges laid against you under Rule 76 of this Association were heard.
The Committee found you guilty of failing to stop work on the 13 February 1981 and fine you $10.00 on this charge, payable by you to this Branch of the Association.
You have the right under Rule 76 (2) of this Association, to appeal against the decision at the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal should be made to me at least 7 days prior to this meeting.
Yours faithfully.
(sgd.) M. J. Parker.
MAUREEN J. PARKER
Secretary/Treasurer"
16. A letter dated 1 May 1981, a copy of which is annexure "D", was written to Mr Thurecht by the Secretary/Treasurer of the Queensland Branch of the Organization."
That letter is in the following terms:-
"Your letter was presented at the Committee of Management Meeting held on the 21 April 1981.
At this meeting the Committee found you guilty of the charges laid against you under Rule 76 of this Association and fines you the sum of $20.00 payable by you to this Branch of the Association.
You have the right under Rule 76 (2) of this Association, to appeal against the decision to the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal should be made to me at least 7 days prior to this Meeting.
I doubt that you taking strike action would have prejudiced Australia's Defence.
Not all your fellow workmates have received the same communication as you.
After the meeting in Toowoomba on the 13 February 1981 your workmates obviously felt that you failed to support them and decided you should be charged. Only when your workmates ask for you to be charged, does this Association find out which members failed to go on strike. APSA members in Defence Department were not the only ones charged, members in other departments had their charges heard along with yours.
You are entitled to a set of Rules which are available on request. Please find copy enclosed.
If you know of other members who did not stop work on the 24 February 1981 then you may write to this Association and ask for them to be charged.
It seems strange to me that anyone would agree with legislation which allows an employer to dismiss an employee without reason. However, you are entitled to your opinion and not all APSA members will agree on all issues. That is why decisions are made on concensus (sic) of opinion of members. The concensus (sic) of members has been overwhelmingly opposed to sections of the CERR Act since its introduction in 1976.
The strength of any union is its unity which is damaged by members doing their own thing, eventually affecting the negotiating ability of APSA on your behalf.
Should you wish to discuss this or any matter with me please contact me.
Yours faithfully,
(sgd.) M. J. Parker
MAUREEN J. PARKER"
17. The Federal Council of the Organization directed its Queensland Branch to rescind its decision to fine, inter alias, Mr Bryant and Mr Thurecht and not to proceed with the fines.
18. The Queensland Branch of the Organization refused to comply with the directions of its Federal Council which took no action to enforce its directions to the Queensland Branch.
19. (a) Neither Mr Bryant nor Mr Thurecht has paid his fine.
(b) No legal action has been taken by the Organization to recover the amount of any fine from Mr Bryant or Mr Thurecht.
20. On 19 April 1982, prosecutions No. V7 and V8 of 1982 were commenced on behalf of the Industrial Relations Bureau against the Organization in the Victoria District Registry. The proceedings were subsequently transferred to Brisbane and, by direction, consolidated and heard together on 13 and 14 December 1982.
21. The charge against the Organization in matter No. V7 of 1982, as amended, is:-
'That on 21st April 1981 at Brisbane in the State of Queensland, you, being an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $10.00 fine upon a member of the organization, one Michael David Bryant by reason of the circumstance that the said Michael David Bryant failed to join in industrial action on 13th February 1981, contrary to Section 188 (1) (e) of the said Act.'
22. The charge against the Organization in matter No. V8 of 1982, as amended, is:
'That on 21 April 1981 at Brisbane in the State of Queensland you, being an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $20.00 fine upon a member of the organization, one John Richard Thurecht, by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13th February 1981 and/or on 24th February 1981, contrary to Section 188 (I) (e) of the said Act.'
23. No person present at any meeting of the Committee of Management of the Queensland Branch of the Organization on 21 April 1981 was called to give evidence.
24. No evidence was adduced with respect to the convening of or proceedings at any meeting of the Committee of Management of the Queensland Branch of the Organization on 21 April 1981.
25. (a) The letters, exhibits C and D, were tendered by the prosecution only as evidence of statements made by the Secretary/Treasurer of the Queensland Branch of the Organization.
(b) Such letters were tendered and admitted into evidence only subject to the objection of the Organization that the matters stated therein could not be proved against it in these proceedings by proof of such statements by the Secretary/Treasurer of its Queensland Branch."
Section 188 of the Act provides as follows:-
"(1) An organization -
. . . . .
(e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organization by reason of the circumstance that the member has refused or failed to join in industrial action.
(2) A contravention of sub-section (1) is an offence against that sub-section punishable, upon conviction, by -
(a) where the action constituting the offence has continued for more than a day - a penalty not exceeding a fine of $400 for each day during which that action has continued; or
(b) in any other case - a penalty not exceeding a fine of $400.
(3) In any proceedings for an offence against sub-section (1), if all the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent.
(4) For the purposes of this section, an action taken by -
(a) the committee of management of an organization;
(b) the committee of management of a branch of an organization;
(c) an officer, employee or agent of an organization;
(d) a group of members of an organization; or
(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization,
shall be deemed to have been taken by the organization."
Nine questions are raised for the opinion of this Court under the Stated Case. It is convenient if I state and consider them in the order in which they appear in the Case.
1. Whether the letters, annexures "C" and "D" are admissible against the Organization as proof of the matters stated therein.
This question is important because unless the letters are admissible against the Organization as admissions there is no other evidence tending to establish that it imposed penalties upon Mr. Bryant and Mr. Thurecht so that in the absence of the letters the prosecutions would necessarily fail.
Statements made by an agent within the scope of his authority to third persons may in some circumstances be admissible as admissions against his principal. But there is a distinction between what an agent is presumed to have authority to do as part of the carrying on of his principal's affairs and what he has authority to admit regarding past transactions: see Ex parte Gerard & Co. Pty. Limited; Re Craig (1944) 44 S.R. (N.S.W.) 370; Scott v. Fernhill Stud Poultry Farm Pty. Limited (1963) V.R. 12.
For a statement by an agent to a third party to be admissible as an admission against his principal it must have been made as part of a communication which the agent was authorised to have with the third party. Sometimes that authority will be express, sometimes implied. If implied, it is a question of fact in each case whether the statements were made by the agent in the course of the principal's activities and in the course of the agent's duty: see Fraser Henleins Pty. Limited v. Cody (1945) 70 C.L.R. 100; Kirkstall Brewery Co. v. Furness Railway Co. (1874) L.R. 9 Q.B. 468; Cross On Evidence, 2nd Australian Edition by J.A. Gobbo, D. Byrne and J.D. Heydon, para. 18.108.
Many of the reported cases concern the authority of directors or officers of companies to make admissions binding on the companies and must be applied with some care in the case of organizations of employees registered under the Act. The rules of such organizations frequently provide for divisions of function between component bodies at Commonwealth and State levels and between officers of those bodies.
In the present case the Organization vests its management in its Conference, Federal Council, Federal Committee, Branch General Meetings and Branch Committees of Management. The Rules of the Organization entrust each of them with specified powers. Except perhaps where Branches have autonomy in certain matters, they are required to comply with the directions of the Conference or the Federal Council (para. 37 (1) (a) of the Rules of the Organization).
The two letters in question here were signed by Maureen J. Parker as Secretary/Treasurer of the Queensland Branch of the Organization. Under the Rules:-
" . . . a Branch may amalgamate the positions of Secretary and Treasurer and if a fulltime officer is employed as Secretary the positions shall be amalgamated under the title of Secretary/Treasurer.": sub-r. 53 (6).
It was not disputed before us that when Maureen J. Parker signed the two letters she did so as the holder of the amalgamated office of Secretary and Treasurer.
The duties of a Branch Secretary as prescribed by Rule 60 include the duties of attending all general meetings and committee of management meetings of the Branch and carrying out the instructions of such meetings having regard to the objects of the Association; attending to all correspondence received by the Branch; convening meetings of the Branch; ensuring that the minute books of the Branch are kept; receiving all moneys due to the Organization from the members of the Branch and keeping records of moneys received and issuing receipts for the same. The Branch Secretary is entitled to speak and vote at all meetings of the Branch (sub-r. 60 (2). The Branch Secretary is empowered to sue any member of the Branch on behalf of the Organization for arrears of subscriptions or any amount owing in respect of fines and levies in accordance with the relevant Rule (sub-r. 60 (3)).
The duties of a Branch Treasurer as prescribed by Rule 62 include attending all general and Committee of Management meetings of the Branch and rendering such assistance as may be required of him; receiving from the Branch Secretary or other authorized persons all moneys belonging to the Branch and depositing them to the credit of the Branch in the relevant bank account; issuing receipts for all moneys received and being responsible for all entries on members' index cards. The Branch Treasurer is entitled to speak and vote at all meetings of the Branch (sub-r. 62 (2)).
Rule 76 is important as it is the basis on which the Committee of Management of the Queensland Branch purported to act when resolving to impose fines on the two members. Rule 76 provides: -
76. (1) Any member of the Association who is guilty of a serious breach of the Rules of the Association or who has failed to comply with a decision which is binding on members in accordance with the Rules of the Association may be summonsed to appear before a meeting of the Committee of Management of the Branch to which he is attached. Such member shall be given seven days notice of the charge or charges made against him and shall be entitled to attend the meeting of the Branch Committee of Management considering the charge and to be heard in his defence. If the member is found guilty of the charge or charges, he may be reprimanded, fined an amount not exceeding twenty dollars or expelled from membership of the Association.
(2) A member who is reprimanded or fined in accordance with this Rule shall have the right of appeal to the next succeeding General Meeting of the Branch to which he is attached. A member who is expelled pursuant to this Rule shall have a right to appeal to the Federal Council of the Association or Conference and in each case the decision of the Federal Council or Conference shall be final."
Sub-rule 76 (1) contemplates that someone must summon the person charged with the offence for which the sub-rule provides, give seven days notice to that person of the charge and, presumably if he does not attend the relevant meeting where the charge is heard, tell him of the result of the meeting especially if he is found guilty. Although the sub-rule does not nominate the person or persons who must do these things, it seems to me that the Secretary/Treasurer is the obvious person if no one else is asked to do it.
The two letters of 8 April 1981 written by the Acting Secretary/Treasurer of the Queensland Branch of the Organization to Mr. Bryant and Mr. Thurecht were admitted without objection of the Organization. Those letters notified Mr. Bryant and Mr. Thurecht of the fact that they were charged under Rule 76, summoned to appear before the Committee of Management meeting to be held on 21 April 1981, that they were entitled to reply to the charges if they so desired and that if they failed to attend the meeting a decision on the charges would be made in their absence.
Correspondence was exchanged between 8 and 21 April 1981 between each of Mr. Bryant and Mr. Thurecht and the Secretary/Treasurer of the Queensland Branch. A letter was written by Mr. Thurecht which was presented at the meeting of the Committee of Management of 21 April 1981.
In the light of these matters in my view the Secretary/Treasurer had implied authority to write the two letters in question to Mr. Bryant and Mr. Thurecht on behalf of the Queensland Branch of the Organization and on behalf of the Organization itself. That authority extended to making admissions on behalf of the Queensland Branch and the Organization, but the admissions must be read in the light of paragraph 25 of the Stated Case. That paragraph was discussed before us by counsel for both parties and it is common ground that the two letters were tendered by the Prosecutor and admitted in evidence only as evidence of the passing of the resolutions therein mentioned.
I am mindful that some actions of the Secretary/Treasurer may bind the Branch but not necessarily the Organization itself. For some purposes branches of industrial organizations are independent units, not agents of the whole organization. The degree of autonomy of branches differs as between organizations. Ultimately these questions of authority generally turn on the Rules of the particular organization and the facts of each case. These questions have been discussed in various cases including Waterside Workers' Federation of Australia v. Burgess Brothers Limited (1916) 21 C.L.R. 129; The Commonwealth Steamship Owners' Association v. The Federated Seamen's Union of Australasia (1923) 33 C.L.R. 297; Coal Miners Industrial Union of Workers of Western Australia v. True (1959) 33 A.L.J.R. 224; Williams v. Hursey (1959) 103 C.L.R. 30.
I would answer Question 1 - Yes.
2. (a) Whether it was established by evidence admissible against the Organization that the Queensland Branch Committee of Management of the organization on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981;
The real point involved in question 2 (a) is whether this Court constituted by a single Judge when hearing the charge brought against the Organization in relation to Mr. Bryant for breach of para. 188 (1) (e) of the Act could be satisfied beyond reasonable doubt that the Queensland Branch Committee of Management of the Organization fined Mr. Bryant $10.00 for failing to stop work on 13 February 1981 when the only evidence tending to establish this was the letter of 22 April 1981 written by the Secretary/Treasurer to Mr. Bryant.
Counsel for the Organization submitted that the question should be answered in the negative as the Prosecutor did not call any officer or member of the Queensland Branch to give evidence or tender any minutes of meetings of the Queensland Branch Committee and merely tendered the letter in question.
Notwithstanding that the letter of 22 April 1981, annexure "C" to the Case, was the only evidence of the fact that the Committee of Management of the Queensland Branch of the Organization fined Mr. Bryant for failing to comply with a decision of his workmates that they would not return to work for the remainder of 13 February 1981, in my opinion the Court could be satisfied beyond reasonable doubt of the matters raised by the question.
I would answer Question 2 (a) - Yes.
2. (b) If yes, to 2 (a) whether that decision of the Queensland Branch Committee of Management of the Organization:
(i) was valid;
(ii) was invalid by reason of paragraph 188 (1) (e) and/or paragraph 140 (1) (a) of the Act;
(iii) was invalid otherwise than by reason of paragraph 188 (1) (e) and/or paragraph 140 (1) (a) of the Act;
(iv) constituted the imposition of a penalty within the meaning of paragraph 188 (1) (e) of the Act.
I will deal first with the construction and operation of para. 188 (1) (e) of the Act. Does it prohibit only impositions (I leave aside threatened impositions) of penalties, forfeitures or disabilities of any kind that would otherwise be valid (i.e. by ignoring the effect which the paragraph would itself have on the imposition of a penalty etc.); or does it extend to purported but invalid impositions?
It was submitted on behalf of the Organization that the acts proscribed by para. 188 (1) (e) are confined to the imposition of penalties otherwise validly imposed. I cannot accept this argument. To accept it would defeat the evident purpose of para. 188 (1) (e) and the other paragraphs in the section namely, that they are directed to prohibiting organizations from taking action which may have the effect of coercing employees to join in industrial action. The paragraph is not concerned with whether the penalty has been validly imposed by an organization. Rather it is directed to the real events which have occurred and to the question whether, in all the circumstances, an organization has taken steps which in a practical sense constitute the imposition of a penalty.
I cannot conceive that Parliament intended that organizations which purport to impose penalties which, through inadvertence or otherwise, are ineffective in law because, for example, some material procedural requirement of its Rules was not complied with, should be outside the section. In my view it is the very conduct which is intended to fall within the scope of the prohibition. Acceptance of the submission would reduce s. 188 to a paper tiger. The Act contains many provisions designed to promote organizations and foster their interests and those of their members. It also imposes restraints or prohibitions on certain actions of organizations. Section 188 is one example. It is sufficient to attract the operation of para. 188 (1) (e) that an organization purports to impose a penalty whether that imposition is otherwise effective in law or not.
In thus construing para. 188 (1) (e) I have the misfortune to differ from the views expressed by Ellicott J. in Squires v. Flight Stewards Association of Australia (unreported 19 August 1982) where his Honour held that the words in para. 188 (1) (e) "impose a penalty" are not satisfied unless a penalty is effectively imposed in the sense that it is imposed validly so as to place a member under a liability or burden, without taking into account the effect which the paragraph itself has on the validity of the resolution imposing the penalty. Notwithstanding the respect I have for the views expressed by his Honour in Squires Case I am unable to agree with them and I decline to follow his judgment on this question.
I turn to the facts of this case.
The charge which the Committee found proved against Mr. Bryant was that he failed to comply with a decision said to be binding on members in accordance with the Rules of the Organization namely, a decision by his fellow workmates not to return to work for the remainder of 13 February 1981 and calling on all members not present to cease work for that period. The meeting of the members was held on 13 February 1981 at 12.30 p.m.
The validity of the findings of the Queensland Branch Committee can be sustained only if the charge answers the description of a failure to comply with a decision binding on members of the Organization in accordance with its rules or, perhaps, being guilty of a serious breach of the Organization's rules (see sub-r. 76 (1)). The charge which the Queensland Branch Committee found proved against Mr. Bryant does not answer either description. The meeting held on 13 February 1981 was not a general meeting of the members of the Organization or a general meeting of the members of the Queensland Branch of the Organization. It was merely an informal meeting of persons who were members of either the Organization or the Administrative and Clerical Officers' Association, Australian Public Service. There was no decision made which could be said to bind members of the Organization in accordance with its rules. Nor could it be said that any rule of the Organization was breached, whether seriously or otherwise. I should add that no rule or other source of power was relied on other than Rule 76 to support the validity of the decision of the Branch Committee. In my opinion the decision reached by the Committee of Management of the Queensland Branch on 21 April 1981 in relation to Mr. Bryant was invalid.
My view is supported on another ground. Properly construed, Rule 76 is directed only to decisions which do not contravene the law. I cannot conceive that the draftsman of the rule intended that it could encompass within the description "a decision which is binding on members in accordance with the Rules of the Association" decisions which are contrary to law; for example, decisions to impose penalties in contravention of para. 188 (1) (e). This conclusion is supported also by para. 140 (1) (a) of the Act which provides that the rules of an organization shall not be contrary to a provision of the Act.
Before leaving this question I should refer to a submission of counsel for the Organization that the word "impose" in para. 188 (1) (e) necessarily involves the notion of recovery of a penalty. The mere passing of a resolution to impose a penalty (or merely passing the resolution and notifying the person concerned of the passing thereof) was said to be insufficient to constitute the imposition of a penalty within the meaning of the paragraph.
The word "impose" appears in para. (d) of sub-s. 188 (1) as well as para. (e). It appears also in sub-s. 191 (1) which provides that where a person has committed an offence against the Act or the regulations and has been charged accordingly before the Court, the Court "may impose the penalty provided" by the Act or the regulations in respect of that offence. Plainly courts impose penalties by orders. Recovery or enforcement of penalties is a later and separate step and not one undertaken by the Court itself: see s. 121.
These references to the word "impose" are in accord with its ordinary and natural meaning and are consistent with the meanings ascribed by dictionaries.
Although recovering a penalty or attempting to recover it does not necessarily fall within the notion of imposing a penalty for the purposes of para. 188 (1) (e), is it necessary that the person found guilty of the charge be notified of the passing of the resolution before the penalty can be said to have been imposed? I do not find it necessary to answer this question because I am satisfied on the material before us that Mr Bryant was notified of the passing of the relevant resolution. Notwithstanding the limited basis on which the letters of 22 April and 1 May 1981 were tendered and admitted (see paragraph 25 of the Case), I find the inference irresistible that Mr Bryant and Mr Thurecht were notified of the passing of the resolutions. I rely upon the Case as a whole including the form of the letters themselves, the fact that they are addressed to Mr Bryant and Mr Thurecht and the fact that the letters were written to them (paragraphs 15 and 16 of the Case). Any other conclusion would be contrary to commonsense.
I would answer question 2 (b) as follows: -
(i) No.
(ii) Yes, by reason of para. 188 (1) (e) of the Act.
(iii) It is not necessary to answer this question.
(iv) Yes.
2. (c) If yes to question 2 (b) (iv) whether the penalty imposed on Michael David Bryant by the Queensland Committee of Management of the Organization on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 within the meaning of paragraph 188 (1) (e) of the Act.
Counsel for the Organization conceded that if question 2 (b) (iv) is answered in the affirmative the Organization did not oppose an affirmative answer to this question. Accordingly, I would answer the question, yes.
3. (a) Whether it was established by evidence admissible against the Organization that the Queensland Branch Committee of Management of the Organization on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of members of the Organization in Toowoomba on 13 February 1981, that "This Meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period" and for failing to abide by a direction of the Federal Committee of the Organization that "All A.P.S.A. members are directed to cease work from midnight the 23rd February - midnight the 24th February 1981".
For the reasons given by me when answering question 2 (a) I would answer this question - yes.
3. (b) If yes to 3 (a), whether that decision of the Queensland Branch Committee of Management of the Organization:
(i) was valid;
(ii) was invalid by reason of paragraph 188 (1) (e) and/or paragraph 140 (1) (a) of the Act;
(iii) was invalid otherwise than by reason of paragraph 188 (1) (a) and/or paragraph 140 (1) (a) of the Act;
(iv) constituted the imposition of a penalty within the meaning of paragraph 188 (1) (e) of the Act.
As to Mr. Thurecht, the position is relevantly much the same as it was in the case of Mr. Bryant except that two charges were brought against Mr. Thurecht, the same charge as that brought against Mr. Bryant in relation to 13 February 1981 and the additional charge that he (Mr. Thurecht) failed to comply with a decision which was said to be binding on members of the Organization in accordance with the Organization's rules namely, a direction by the Federal Committee of the Organization that all members of the Organization were directed to cease work from midnight 23 February to midnight 24 February 1981 and that Mr. Thurecht reported for duty that day with full knowledge of the direction. Mr. Thurecht was fined $20.00 in respect of both alleged breaches of Rule 76, the fine being undivided as to each breach. Hence the invalidity of the Queensland Branch Committee's decision as to the breach said to arise from the events of 13 February 1981 necessarily tainted the Committee's decision in relation to 24 February 1981.
I would answer this question as follows: -
3 (b) (i) No.
3 (b) (ii) Yes, by reason of para. 188 (1) (e) of the Act.
3 (b) (iii) It is not necessary to answer this question.
3 (b) (iv) Yes.
3. (c) If yes to 3 (b) (iv) whether the penalty imposed on John Richard Thurecht by the Queensland Committee of Management of the Organization on 21 April 1981 was imposed by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of paragraph 188 (1) (e) of the Act.
For the reason given by me when answering question 2 (c), I would answer this question, yes.
4. If yes to 2 (c), did the Organization by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action 13 February 1981.
This question was argued on the assumption that the Committee of Management imposed the fine of $10.00 upon Mr. Bryant but raised for decision whether the imposition of the fine by the Committee bound the Organization itself.
It was submitted by counsel for the Organization that the Organization was not bound by this action of the Committee. As I said earlier, for certain purposes it is true that some acts of officers employed by branches of the Organization may not necessarily bind the Organization itself. I will not repeat what I said. Notwithstanding that some decisions or acts of the Committee of Management may not bind the Organization, in the present case the relevant decisions were taken by the Committee of Management of the Queensland Branch of the Organization purportedly pursuant to r. 76. Nothing was advanced in argument to support in my view the contention that those decisions did not bind the Organization. Accordingly I would answer this question - yes.
5. If yes to 3 (c), did the Organization by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981.
As to the events of 13 February 1981 the position is relevantly the same as it is in the case of Mr. Bryant. The fact that the Federal Secretary/Treasurer of the Organization directed its members not to attend for work on 24 February 1981, that the members of the Federal Committee were unanimous that the members of the Organization should be so directed by the Federal Secretary/Treasurer, that prior to that direction being given the Federal Secretary/Treasurer of the Organization was separately informed by each of the other members of the Federal Committee of the Organization that he or she agreed to the direction being given, and that no resolution was passed at a meeting of the Federal Committee that its members should be so directed by its Federal Secretary/Treasurer, is not to the point. However if it were relevant to consider these matters in my view it would follow that, informal though it may have been, the Federal Committee must be treated as having directed the relevant members of the Organization not to attend for work on 24 February 1981 and that such direction bound the Organization. Some argument was put on the basis that the Federal Council is not entitled to direct the Queensland Branch of the Organization on matters falling within the autonomy of the Queensland Branch and reliance was placed in this regard upon certain Rules of the Organization such as Rule 75 (2). To the extent that any such argument has relevance in this case, in my opinion it is without substance. I would answer this question - yes.
6. If no to 4 or 5 is sub-s. 188 (4) of the Act:
(a) a law for the peace order and good government of the Commonwealth of Australia with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s. 51 (xxxv) of the Constitution of the Commonwealth of Australia;
(b) a law for the peace order and good government of the Commonwealth of Australia with respect to matters incidental to the execution of the power vested by the said s. 51 (xxxv) of the Constitution of the Commonwealth of Australia and the Parliament of the Commonwealth of Australia within the meaning of s. 51 (xxxv) of the Constitution of the Commonwealth of Australia;
(c) otherwise a valid law of the Parliament of the Commonwealth of Australia under the Constitution of the Commonwealth of Australia
This question does not arise.
7. If yes to any of 6 (a), 6 (b) or 6 (c), is the Organization deemed to have, on 21 April 1981, imposed the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981.
This question does not arise.
8. If yes to any of 6 (a), 6 (b) or 6 (c), is the Organization deemed to have, on 21 April 1981, imposed the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13 February 1981 and/or on 24 February 1981.
This question does not arise.
9. Is the Organization guilty of the offences charged or either and if so which of them.
This is a matter for determination by the trial Judge.
In summary, I would answer the questions as follows: -
Question 1: Yes.
Question 2 (a): Yes.
(b) (i): No.
(ii): Yes, by reason of para. 188 (1) (e) of the Act.
(iii): It is not necessary to answer this question.
(iv): Yes.
(c): Yes.
Question 3 (a): Yes.
(b) (i): No.
(ii): Yes, by reason of para. 188 (1) (e) of the Act.
(iii): It is not necessary to answer this question.
(iv): Yes.
(c): Yes.
Question 4: Yes.
Question 5: Yes.
Question 6, 7 and 8: These questions do not arise.
Question 9: This is a matter for determination by the trial Judge.
JUDGE3
This is a special case stated under s.26 of the Federal Court of Australia Act 1976 and s.105 of the Conciliation and Arbitration Act 1904 ("the Act"). Some of the questions concern the constitutional validity of certain provisions of the Act. The Court is satisfied that the notice required to be given under s.78B of the Judiciary Act 1903 was given to both the Attorney-General for the Commonwealth and the Attorney-General for the State of Victoria where the proceedings were commenced. The Victorian Attorney-General indicated in writing that he did not wish to be heard. The same counsel represented both the Commonwealth Attorney-General and the prosecutor.
The defendant is an organization of employees registered pursuant to the Act and having its registered office in Victoria. On 19 April 1982, prosecution nos. V7 and V8 of 1982 were commenced on behalf of the Industrial Relations Bureau against the defendant. Both charges related to alleged breaches of para. 188(1)(e) of the Act which is in the following terms:
"188(1) An organization (e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organization by reason of the circumstances that the member has refused or failed to join in industrial action;"
The charge against the defendant organization in matter no. V7 of 1982, as amended, is:
"That on 21st April 1981 at Brisbane in the State of Queensland, you, being an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $10.00 fine upon a member of the organization, one Michael David Bryant by reason of the circumstance that the said Michael David Bryant failed to join in industrial action on 13th February 1981, contrary to Section 188(1)(e) of the said Act."
The charge against the defendant organization in matter no. V8 of 1982, as amended, is:
"That on 21st April 1981 at Brisbane in the State of Queensland you, being an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904, did through your Branch Committee of Management (Queensland Branch) impose the penalty of a $20.00 fine upon a member of the organization, one John Richard Thurecht, by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13th February 1981 and/or on 24th February 1981, contrary to Section 188(1)(e) of the said Act."
Both persons mentioned in the charges, Messrs Bryant and Thurecht, were at all material times members of the defendant employed by the Commonwealth of Australia in the Department of Defence at No. 7 Stores Depot, North Drayton, Toowoomba in the State of Queensland. Neither complied with a decision taken at a meeting in Toowoomba on 13 February 1981 of a number of persons each of whom was a member of either the defendant organization or the Administrative and Clerical Officers' Association, Australian Public Service. As a result of the decision taken at that meeting, some persons, including some of the workmates of Messrs Bryant and Thurecht, stopped work early on that day without the authority of their employer but Messrs Bryant and Thurecht each continued to work until excused. The decision of the meeting was not, on any view of the matter, one which was binding on Messrs Bryant and Thurecht in accordance with the Rules of the defendant organization and their continuing to work did not constitute any breach of the Rules.
Prior to 24 February 1981, the Federal Secretary/Treasurer of the defendant organization with the agreement of all other members of its Federal Committee but without any formal resolution directed its members not to attend for work on that day. Some members of the defendant organization failed or refused to attend for work without the authority of their respective employers. However, Mr Thurecht attended work and performed his normal duties. Mr Bryant was on leave.
By letter dated 8 April 1981, the Acting Secretary/Treasurer of the Queensland Branch of the defendant organization wrote to each of Mr Bryant and Mr Thurecht in the following terms:
"I have been requested by your fellow workmates to officially charge you under the Rules of this Association for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of A.P.S.A. members in Toowoomba on the 13th of February 1981 at 12.30 pm.
That resolution being as follows - 'This meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period.'
A.P.S.A. members who were not present at that meeting of the 13th of February 1981 were duly notified of the decision, which you failed to abide by.
Also, you are officially charged for failing to abide by a direction of the Federal Committee.
That direction being - 'All A.P.S.A. members are directed to cease work from midnight the 23rd of February - midnight the 24th of February 1981.'
It has been reported that you did in fact report for duty on this day with the full knowledge of the above direction.
You are therefore formally charged with failing 'to comply with a decision which is binding on members in accordance with the Rules of the Association.' (Rule 76)
You are summonsed to appear before the next Committee of Management meeting to be held on the 21st of April 1981 at 9.00 am at the Branch Office A.C.O.A. House, 297 Adelaide Street, Brisbane.
You will have the opportunity to be heard in your defence at this meeting. You may reply to the charges in writing if you so wish.
Should you fail to attend this meeting a decision on the above charges will be made in your absence."
After Mr Bryant informed the Secretary/Treasurer of the Queensland Branch of the defendant organization that he had been on leave on 24 February 1981, the allegation that he had reported for duty on that day was abandoned.
Rule 76 which is referred to in the letters of 8 April 1981 provides as follows:
EXPULSION OF MEMBERS
76.(1) Any member of the Association who is guilty of a serious breach of the Rules of the Association or who has failed to comply with a decision which is binding on members in accordance with the Rules of the Association may be summonsed to appear before a meeting of the Committee of Management of the Branch to which he is attached. Such member shall be given seven days notice of the charge or charges made against him and shall be entitled to attend the meeting of the Branch Committee of Management considering the charge and to be heard in his defence. If the member is found guilty of the charge or charges, he may be reprimanded, fined an amount not exceeding twenty dollars or expelled from membership of the Association.
(2) A member who is reprimanded or fined in accordance with this Rule shall have the right of appeal to the next succeeding General Meeting of the Branch to which he is attached. A member who is expelled pursuant to this Rule shall have a right to appeal to the Federal Council of the Association or Conference and in each case the decision of the Federal Council or Conference shall be final."
Rule 76 is in a part of the Rules headed "Disciplinary Provisions". No other provision is made for the disciplining of members. Rule 75, which is complimentary in part to Rule 37 "Control of Branches", makes separate provision with different procedures for disciplining both Federal and Branch officials of the defendant organization.
Correspondence was exchanged between each of Mr Bryant and Mr Thurecht and the Secretary/Treasurer of the Queensland Branch of the defendant organization between 8 April 1981 and 21 April 1981.
No evidence was adduced with respect to the convening of, or proceedings at, any meeting of the Committee of Management of the Queensland Branch of the defendant organization on 21 April 1981 and no person present at any meeting of the Committee of Management of the Queensland Branch of the defendant organization on 21 April 1981 was called to give evidence. However, the prosecution tendered two letters forwarded by the Secretary/Treasurer of the Queensland Branch of the defendant organization containing statements which it relied upon as admissions by the defendant organization. Such letters were only tendered and admitted into evidence subject to the objection of the defendant organization that the matters stated therein could not be proved against it in these proceedings by proof that such statements had been made by the Secretary/Treasurer of the Queensland Branch. Further, it was not argued that if the letters were admissible and admitted into evidence they were in evidence for all purposes and it was not in dispute on the hearing before us that the different Counsel who conducted the trial for the prosecution had expressly limited the prosecution's use of the letters to the admissions which the letters were said to contain, and tendered them only on that basis and for that purpose. The reason for that was that it was no part of the prosecutor's case that the communication of any decisions made by the Committee of Management of the defendant organization on 21 April 1981 was an element of the conduct alleged to constitute the offences charged. The prosecution relied solely on the decisions alleged to have been made.
The first of the letters, referred to in the Case Stated as annexure "C", was dated 22 April 1981 and was addressed to Mr Bryant in the following terms:
"At the Committee of Management Meeting on the 21 April 1981 charges laid against you under Rule 76 of this Association were heard.
The Committee found you guilty of failing to stop work on the 13 February 1981 and fined you $10.00 on this charge, payable by you to this Branch of the Association.
You have the right under Rule 76(2) of this Association, to appeal against the decision at the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal should be made to me at least 7 days prior to this meeting."
The other letter, referred to in the Case Stated as annexure "D", was dated 1 May 1981 and was addressed to Mr Thurecht in the following terms:
"Your letter was presented at the Committee of Management Meeting held on the 21 April 1981.
At this meeting the Committee found you guilty of the charges laid against you under Rule 76 of this Association and fines you the sum of $20.00 payable by you to this Branch of the Association.
You have the right under Rule 76(2) of this Association, to appeal against the decision to the next General Meeting of this Branch to be held on Monday 18 May 1981. Notification of any appeal should be made to me at least 7 days prior to this meeting.
I doubt that you taking strike action would have prejudiced Australia's Defence.
Not all your fellow workmates have received the same communication as you.
After the meeting in Toowoomba on the 13 February 1981 your workmates obviously felt that you failed to support them and decided you should be charged. Only when your workmates ask for you to be charged, does this Association find out which members failed to go on strike. APSA members in Defence Department were not the only ones charged, members in other departments had their charges heard along with yours.
You are entitled to a set of Rules which are available on request. Please find copy enclosed.
If you know of other members who did not stop work on the 24 February 1981 then you may write to this Association and ask for them to be charged.
It seems strange to me that anyone would agree with legislation which allows an employer to dismiss an employee without reason. However, you are entitled to your opinion and not all APSA members will agree on all issues. That is why decisions are made on concensus of opinion of members. The concensus of members has been overwhelmingly opposed to sections of the CERR Act since its introduction in 1976.
The strength of any union is its unity which is damaged by members doing their own thing, eventually affecting the negotiating ability of APSA on your behalf.
Should you wish to discuss this or any matter with me please contact me."
Neither Mr Bryant nor Mr Thurecht paid the fine referred to in the letter to him and no legal action has been taken by the defendant organization to recover the fines from either Mr Bryant or Mr Thurecht. The Federal Council of the defendant organization directed the Queensland Branch Committee of Management to rescind its decisions to fine Mr Bryant and Mr Thurecht, but that has not been done and the direction from the Federal Council has not been enforced, as it might have been, under the defendant organization's Rules 37 and 75.
The questions raised for the opinion of this Court are as follows:
"1. Whether the letters, annexures "C", and "D" are admissible against the defendant organisation as proof of the matters stated therein.
2. (a) Whether it was established by evidence admissible against the defendant organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined Michael David Bryant $10.00 for failing to stop work on 13 February 1981;
(b) If yes, to 2(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation:
(i) was valid;
(ii) was invalid by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
(iii) was invalid otherwise than by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
(iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act.
(c) If yes to 2(b)(iv), whether the penalty imposed on Michael David Bryant by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstances that he failed to join in industrial action on 13 February 1981 within the meaning of paragraph 188(1)(e) of the Act.
3. (a) Whether it was established by evidence admissible against the defendant organisation that the Queensland Branch Committee of Management of the defendant organisation on 21 April 1981 fined John Richard Thurecht $20.00 for failing to abide by a direction as a result of a resolution carried at a duly constituted meeting of members of the defendant organisation in Toowoomba on 13 February 1981, that "This Meeting resolves not to return to work for the remainder of today and calls on all members not present to cease work for that period" and for failing to abide by a direction of the Federal Committee of the defendant organisation that "All A.P.S.A. members are directed to cease work from midnight the 23rd February - midnight the 24th February 1981."
(b) If yes to 3(a), whether that decision of the Queensland Branch Committee of Management of the defendant organisation:
(i) was valid;
(ii) was invalid by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a) of the Act;
(iii) was invalid otherwise than by reason of paragraph 188(1)(e) and/or paragraph 140(1)(a);
(iv) constituted the imposition of a penalty within the meaning of paragraph 188(1)(e) of the Act.
(c) If yes to 3(b)(iv) whether the penalty imposed on John Richard Thurecht by the Queensland Committee of Management of the defendant organisation on 21 April 1981 was imposed by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981 within the meaning of paragraph 188(1)(e) of the Act.
4. If yes to 2(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981.
5. If yes to 3(c), did the defendant organisation by its Queensland Branch Committee of Management on 21 April 1981 impose the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that he failed to join in industrial action on 13 February 1981 and/or 24 February 1981.
6. If no to 4 or to 5, is sub-s. 188(4) of the Act:
(a) a law for the peace order and good government of the Commonwealth of Australia with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s.51(xxxv) of the Constitution of the Commonwealth of Australia;
(b) a law for the peace order and good government of the Commonwealth of Australia with respect to matters incidental to the execution of the power vested by the said s.51(xxxv) of the Constitution of the Commonwealth of Australia and the Parliament within the meaning of s.51(xxxix) of the Constitution of the Commonwealth of Australia;
(c) otherwise a valid law of the Parliament of the Commonwealth of Australia under the Constitution of the Commonwealth of Australia.
7. If yes to any of 6(a), 6(b) or 6(c), is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $10.00 fine upon Michael David Bryant by reason of the circumstance that he failed to join in industrial action on 13 February 1981.
8. If yes to any of 6(a), 6(b) or 6(c) is the defendant organisation deemed to have, on 21 April 1981, imposed the penalty of a $20.00 fine upon John Richard Thurecht by reason of the circumstance that the said John Richard Thurecht failed to join in industrial action on 13 February 1981 and/or on 24 February 1981.
9. Is the defendant organisation guilty of the offences charged or either and if so which of them."
The mere fact that a person is the Secretary/Treasurer of a State Branch of an organization of employees registered under the Act clearly is not sufficient to make statements by that person binding upon the organization as admissions. Further, in the present case, there is obviously insufficient evidence to establish, either directly or by necessary inference, that the Queensland Branch Secretary/Treasurer of the defendant organization was specifically instructed or authorised to write letters "C", and "D", or letters to like effect, to Messrs Bryant and/or Thurecht. Questions 1, 2(a) and 3(a), therefore raise further questions as to whether, under the Rules of the defendant organization, a Branch Secretary/Treasurer has a general authority to notify decisions of a Branch Committee of Management under Rule 76 to the member or members affected and, if so, whether such communications are made on behalf of the defendant organization, so that statements made therein may be attributed to it. The issue raised by questions 4 and 5, i.e. whether under the Rules a Branch Committee of Management acts for the defendant organization in making decisions under Rule 76, falls conveniently for consideration at the same time. Again there is no suggestion that any other body within the defendant organization authorised or sanctioned any decisions made by the Queensland Branch Committee of Management in relation to Messrs Bryant and Thurecht. On the contrary, the defendant organization's federal management discountenanced the decisions. Since it is apparent that at least questions 1, 2(a), 3(a), 4 and 5 all depend on the meaning and effect of the defendant organization's Rules, it is appropriate to proceed immediately to ascertain what those Rules provide so far as may be material in these proceedings.
The defendant organization is divided by its Rules into Branches, each of which is required to elect its own officers and conduct its own business in accordance with the Rules. The Branches are subject to overall federal control and direction except in matters affecting members of the Branch only, in which matters each Branch has autonomy. Where overall federal control exists, it is exercised by bodies on which each Branch is represented and the Rules provide for Branches to be informed of and involved in federal decision making.
The highest authority within a Branch is the Branch general meeting. Its decisions are required to be obeyed by the Branch Committee of Management, which manages the Branch and is one of the bodies in which management of the defendant organization is vested. Provision is made in the Rules for Branch Committees of Management to meet at least quarterly.
Express provision is made in the Rules for the position of Branch Secretary/Treasurer. The powers and duties of such an officer include the admission of applicants to membership to, and the receipt of notices of resignation from, the defendant organization, and not merely the Branch, together with the various powers and duties set out in sub-rules (2) and (3) of Rule 41 and Rule 60 which respectively provide:
"41.(2)(a) All subscriptions shall be payable to the Branch Secretary or Treasurer . . . . Any member who has failed to pay his subscriptions or the requisite portion thereof by the due date shall be unfinancial and if such subscriptions or portion thereof remains unpaid for a period of three months the member may be sued for recovery.
. . .
(3) Arrears of subscriptions or any amount owing in respect of fines and levies, may be sued for and recovered in the name of the Association by the Federal Secretary/Treasurer or the Branch Secretary of the Branch to which the member in arrears is attached upon giving the member fourteen days written notice in which to become financial.
60.(I) The Branch Secretary shall -
(a) attend all General Meetings and Committee of Management meetings of the Branch and carry out the instructions of such meetings having regard to the objects of the Association.
(b) attend to all correspondence received by the Branch.
(c) convene meetings of the Branch.
(d) ensure that the Minute Books of the Branch are kept.
(e) issue the Annual Balance Sheet and Report.
(f) receive all moneys due to the Association from the members of the Branch and keep records of moneys received and issue receipts for the same.
(g) keep a Register of the names and addresses of each member in the Branch and supply a list of the same to the Federal Secretary/Treasurer upon request.
(h) no later than 31st December forward to the Federal Secretary/Treasurer three copies of audited Balance Sheets showing the true financial position of the Branch for that year.
(i) keep an account of all petty cash.
(2) The Branch Secretary shall be entitled to speak and vote at all meetings of the Branch.
(3) The Branch Secretary may sue any member of the Branch on behalf of the Association for arrears of subscriptions or any amount owing in respect of fines and levies in accordance with Rule 41."
The collection and utilisation of the defendant organization's funds is dealt with in a number of provisions. Reference has already been made to Rules 41 and 60(3). Rules 42, 43, 62(1)(i) and 67 respectively state:
"APPROPRIATION OF SUBSCRIPTIONS
42. (1) Subscriptions shall be collected by the Branches in accordance with these Rules on behalf of the Association.
(2) Each Branch of the Association shall contribute to the Federal Council such percentage of the amount of subscriptions collected as Conference from time to time directs . . .
LEVIES
43. (1) Conference or the Federal Council of the Association shall have the power to impose a levy on all members of the Association for the purpose of carrying out all or any of the objects of the Association provided that the maximum amount of levy in any one year shall not exceed the sum of $10 per member. In imposing a levy, Conference or the Federal Council shall determine the time and mode of payment of such levy.
(2) Any member who has failed, by the due date determined under clause (1) of this Rule, to pay a levy imposed by Conference or the Federal Council shall be deemed to be an unfinancial member until such time as the levy is paid.
62. (1) The Branch Treasurer shall -
. . .
(i) pay to the Federal Secretary/Treasurer each quarter the amount payable by the Branch to the Federal Council from subscriptions collected on behalf of the Association.
67. (1) Each Branch shall have a Branch Fund which shall be managed and controlled in accordance with the Rules of the Association and decisions of the Branch and which shall consist of -
. . .
(b) the amounts of entrance fees, subscriptions, fines, fees or levies received by the Branch, less so much of those amounts as is payable by the Branch to the Federal Council pursuant to Rule 42;
. . .
(2) Branch Funds may be applied for the following purposes -
(a) paying the necessary expenses of management of the Branch."
In my opinion, this abbreviated analysis of the defendant organization's Rules reveals that Branch functions are not confined to matters in which Branches have autonomy but extend to other matters in which the Branch represents or acts on behalf of the whole defendant organization. Branch officers and bodies similarly have dual roles under the Rules.
Once the structure provided for by the Rules of the defendant organization is recognised, the conclusion that action taken by a Branch Committee of Management under Rule 76 is taken by the defendant organization seems unavoidable. Whatever its other roles, each Branch Committee of Management is the disciplinary tribunal under the Rules in respect of a charge against a member under Rule 76. Reliance was placed for the defendant organization on Waterside Workers' Federation of Australia v. Burgess Brothers Limited (1916) 21 C.L.R. 129 and The Commonwealth Steamship Owners' Association v. The Federated Seamens' Union of Australasia (1923) 33 C.L.R. 297 but, each of those decisions relevantly depended on the meaning attributed to the quite different Rules there in question. The position of the Branch Committee of Management under Rule 76 is not one of agency and the responsibility of the defendant organization for the decision of a Branch Committee of Management under Rule 76 is not vicarious. By Rule 76 the disciplining of members of the defendant organization is entrusted to the respective Branch Committees of Management which are not subject to direction or control in the discharge of that function although their decisions may be called in question on appeal. By the operation of the defendant organization's Rules, it is the defendant organization which acts when a Branch Committee of Management acts under Rule 76: cf. Tesco Supermarkets Limited v. Nattrass (1972) A.C. 153; Universal Telecasters (Qld) Ltd v. Guthrie (1978) 2 A.T.P.R. 40-062.
However, it does not automatically follow from the fact that the actions of the Branch Committee of Management under Rule 76 are the actions of the defendant organization that every act of a Branch Committee of Management which purports to be done under that Rule is made the act of the defendant organization by its Rules.
It does not seem to be doubted that criminal conduct is not ultra vires a body corporate so as to deny the body corporate the capacity to commit a criminal offence (see Gower "Modern Company Law", 4th ed., pp. 169-170, 207). Paragraph 188 (1)(e) of the Act, to which it will be necessary to return, proceeds on the assumption that a registered organization may act as proscribed notwithstanding that its conduct will be illegal. Accordingly, a registered organization will be guilty of an offence against para. 188(I)(e) of the Act if those who embody its directing mind and will and control it act in the prohibited manner.
However, a Branch Committee of Management is not the directing mind and will which controls the defendant organization. Its identification with the defendant is dependent upon the particular appointment to perform a specific function which is effected by Rule 76. It is necessary to construe that Rule to identify the role which it gives the Branch Committee of Management as representative of the defendant organization in order to determine whether it extends to the making of the decisions relied on against the defendant in these proceedings. Compare the Waterside Workers' Federation Case, supra, especially per Isaacs J. at pp. 137 and 138: The Commonwealth Steamship Owners' Case, supra, especially per Higgins J. and Starke J. at pp. 315-316, Coal Miners Industrial Union of Western Australia v. True (1959) 33 A.L.J.R. 224, 227-228, 230, 231; and Williams v. Hursey (1959) 103 C.L.R. 30, 81-82.
When a member is charged, decisions are called for not only as to the existence or non-existence of the conduct the subject of the charge but also as to whether the conduct falls within the categories of behaviour which attract punishment under the Rule and thus whether the charge is within the Rule. The defendant organization is called upon to decide all such matters by some method. Such decisions may be correct or incorrect; valid or invalid. Although the language of Rule 76 is not without its difficulties, in my opinion all such matters fall within the scope of what is delegated to a Branch Committee of Management for decision. Of course, the Branch Committee of Management cannot give itself jurisdiction by an erroneous decision that conduct is of the character proscribed by the Rule but no more could the defendant organization itself do so. Whatever scheme be adopted, questions of validity or invalidity will remain. All that is presently relevant is the determination of the nature and extent of the decision making power committed to the Branch Committee of Management by the Rules.
The correctness or incorrectness of the view is of considerable importance. The charges laid against Messrs. Bryant and Thurecht were patently beyond the ambit of Rule 76. Because of the operation of para. 140(1)(d) of the Act, no rule of a registered organization could validly empower the imposition of a penalty upon a member of the organization by reason of the circumstance that the member refused or failed to join in industrial action. Rule 76 accordingly must at least be read down so as not to apply to non-compliance with decisions requiring industrial action: Cook v. Crawford (1982) 43 A.L.R. 83, 148-154. Further, it is in any event clear that there was no decision binding in accordance with the defendant organization's Rules which required Messrs. Bryant and Thurecht to cease work on 13 February 1981. There was no relevant decision in connection with a stoppage on that day except that taken at the Toowoomba meeting by some members of the defendant organization and some members of another union and it was common ground before us that that meeting's decision had no status under the defendant organization's Rules. It is unnecessary to consider the position in relation to the stoppage on 24 February 1981 since it had no application to Mr Bryant and the Branch Committee of Management did not deal with it separately in connection with Mr Thurecht; the only decision relied on by the prosecutor was one to fine Mr Thurecht a single sum by reference to his conduct on the two occasions. Such a decision is not severable and would be unavoidably infected by the absence of a binding decision on 13 February 1981. Nor is it necessary to consider other matters raised by the defendant organization; for example, the absence of any evidence concerning the convening and holding of the meeting. Any decisions of the Branch Committee of Management on 21 April 1981 were therefore demonstrably invalid. It was beyond its power to decide that Messrs Bryant and Thurecht were guilty or to fine them. However, it was within the scope of its function as the disciplining tribunal under the Rules to adjudicate on the charges and in doing so it acted for the defendant organization: cf. True's Case, supra, at p.228. Any decisions made by the Branch Committee of Management on 21 April 1981, although invalid, were decisions of the defendant organization.
In my opinion, the prosecution proved the making of such decisions by letters "C" and "D".
The view has already been expressed that statements by the Secretary/Treasurer of a Branch of a registered organization cannot, without more, be attributed to the organization as admissions. Whether particular statements can be so regarded falls to be determined by reference to the particular context and circumstances, including the nature of the statements and the purpose for which they were made. The scope of an agent's authority is determined by the nature of the agent's duties: Australasian Brokerage Ltd v. Australian and New Zealand Banking Corp. Ltd (1934) 52 C.L.R. 430, 450-451. Rule 76 of the Rules of the defendant organization envisages that any Branch Committee of Management decision adverse to a member charged will be communicated to him. Such an implication is necessary in order to ensure the efficacy of the member's right of appeal, and is supported by other considerations including the provisions in the Rules for enforcement of any decision not complied with. Although a member charged is entitled to be heard, the Branch Committee of Management need not, under the Rules, announce its decision in open session.
The general administrative role and the express duties of a Branch Secretary/Treasurer under the Rules justify the conclusion that it is for the occupant of that office to carry out such communications as are called for consequent upon or incidental to Branch Committee of Management decisions. Admissions made in the course of that duty are therefore binding. Where, as under Rule 76, a Branch Committee of Management represents the defendant organization in making a decision, the Branch Secretary acts on behalf of the defendant organization in the execution of his or her ancilliary task of communication of the Branch Committee of Management's decision and the admissions are accordingly binding on the defendant organization.
It follows from what has been said that the letter, annexure "C", contains admissions binding on the defendant organization that on 21 April 1981 it made a decision that Mr Bryant was guilty under Rule 76 of failing to comply with a decision binding on members in accordance with the Rules of the Association to stop work on 13 February 1981 and fined him $10.00, and that the letter, annexure "D", contains admissions binding on the defendant organization that on 21 April 1981 it made a decision that Mr Thurecht was guilty under Rule 76 of failing to comply with two decisions binding on members in accordance with the Rules of the Association; one to stop work on 13 February 1981 and the other to stop work from midnight 23 February to midnight on 24 February 1981 and fined him $20.00. However, it also follows from what has been said that both decisions were invalid.
Although in view of the conclusions I have arrived at in relation to questions 2(b)(iv) and 3(b)(iv), it is not strictly necessary for me to express an opinion, I am of the view that the fact that the decisions were invalid does not mean that para. 188(I)(e) of the Act was not breached, and I agree with Lockhart J. that, insofar as Squires v. Flight Stewards Association of Australia (unreported 18 August 1982) decides to the contrary, it should not be followed. The many arguments by which the prosecutor sought to meet the position if the Court were of a different opinion do not call for discussion.
Further, in my opinion questions 6, 7 and 8 do not arise and question 9 should not be answered by this Court but left to me as the trial judge. The answer to question 9 is almost certainly but the inevitable consequence of the answers to the questions which have been decided. An affirmative answer to questions 2(c) and 3(c) was not opposed if they arose for determination. The critical questions, therefore, are questions 2(b)(iv) and 3(b)(iv).
It was common ground between the parties when the case stated was argued before us that the informations and summonses relied only upon the making of decisions by the Branch Committee of Management on 21 April 1981, and not the communication of those decisions, as the imposition of penalties by the defendant organization. That, and again I understand that there was no dispute between the parties, was the reason why letters "C" and "D" were tendered on a strictly limited basis and not as proof that decisions made were communicated to Mr Bryant or Mr Thurecht. No application for leave to amend to rely on the letters as proof of the communication of the decisions as an element in the allegedly offending conduct was made at any time, nor could have been allowed because of the period which had elapsed before the charges were brought on for hearing: that was acknowledged by the prosecutor. Consistently with all of that, questions 2(b)(iv) and 3(b)(iv) each ask whether the "decision" constituted the imposition of a penalty within the meaning of para. 188(1)(e) of the Act. In the circumstances, it is in my opinion impermissible to answer questions 2(b)(iv) and 3(b)(iv) by reference to not only the relevant decisions but also to other conduct, notably the communication of those decisions to Messrs Bryant and Thurecht.
Counsel for the defendant organization argued that it had not been proved that penalties were imposed since, whether or not the imposition of a penalty occurs at the point of communication of a decision to impose a penalty or some later point, in his submission, no penalty was imposed merely by the making of the decisions.
In my opinion, that submission is correct. Indeed, the position which it involves seems to me to be the corollary of the reasoning which justifies the admissibility of the letters "C" and "D" as evidence against the defendant organization. They are admissible, in my opinion, because the Rules implicitly require that any decision to impose a penalty will be notified to him. It is at that point I consider that the penalty is imposed. Some confirmation of this view is to be found in the relevant similarity of language between para 188(1)(e) and sub-s. 191(1) of the Act.
In my opinion, the questions in the Case should be answered:
1. Yes
2. (a) Yes
(b)(i) No
(ii) Yes
(iii) Yes
(iv) No
(c) Unnecessary to answer
3. (a) Yes
(b)(i) No
(ii) Yes
(iii) Yes
(iv) No
(c) Unnecessary to answer
4. Unnecessary to answer
5. Unnecessary to answer
6. Unnecessary to answer
7. Unnecessary to answer
8. Unnecessary to answer
9. This is a matter for the trial judge
4
3
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