Joe Slater Thompson, James O'Neill and Wilfred Taylor and Ors v L.C. Townsend and Ors

[1979] FCA 151

THOMPSON v. TOWNSEND (1979) 38 FLR 143
Conciliation and Arbitration - Practice

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Institution of proceedings under ss. 140 and 141 in relation to rules - Original jurisdiction of Federal Court of Australia exercisable by single judge - Power of court to make interim orders "at any time after proceedings" instituted - Order that proceedings be heard and determined by Full Court - Proceedings part-heard before Full Court - Subsequent application for interim orders under ss. 140 and 141 - Whether power to grant interim orders exercisable by single judge - Statutory construction - Conciliation and Arbitration Act 1904 (Cth.), ss. 118A (4A), 118C, 140 (10), 141 (2).

Practice - Procedure - Interim orders - Principles concerning granting of interim relief - Whether prima facie case made out by applicant - Balance of convenience - Proposed alteration of rules - Mandatory nature of requirements of rules in relation to their alteration - Discretion of court in granting interim relief - Whether granting of interim orders would obviate final determination of issue at trial - Period of operation of interim orders - Alleged delay in seeking relief - Inconvenience to applicant difficult of identification - Alteration of rules not effective until particulars of alteration filed with the registrar - Certificate by registrar that alteration made in accordance with relevant procedures under rules - Undertaking by respondents that registrar's certificate would not be sought in relation to proposed alteration of rules - Conciliation and Arbitration Act 1904 (Cth.), ss. 139 (4), 140 (11), 141 (3).

HEADNOTE

The Conciliation and Arbitration Act 1904, as amended, provided by s. 118A (4A): "Subject to sub-section (4B), the original jurisdiction of the Federal Court of Australia under this Act (including, subject to sub-section (4C), its jurisdiction to punish contempts of its power and authority in relation to that jurisdiction) shall be exercised in the Industrial Division by a single Judge."

Subsection (1) of s. 118C provides:

"A single Judge of the Federal Court of Australia exercising jurisdiction in any proceedings under this Act -

(a) may, at any stage of the proceedings and either on the application of a party or of his own motion; . . . order that the proceedings be heard and determined by a Full Court."

Subsection (2) of s. 140 provides that a member of an organization may apply to the court for an order under the section in respect of the organization. Subsection (10) provides: "At any time after proceedings under this section have been instituted (including proceedings instituted before the commencement of this sub-section), the Court may make such interim orders as it thinks fit in relation to a matter to which the matters raised in the proceedings are relevant."

Section 141 provides by sub-s. (1) that a member of an organization may apply to the court for an order under the section in respect of the organization. Subsection (2) provides: "At any time after proceedings under this section have been instituted (including proceedings instituted before the commencement of this sub-section), the Court may make such interim orders as it thinks fit in relation to the matters to which the proceedings relate."

Following the institution of proceedings under ss. 140 and 141 by members of an organization, an order was made by a single judge of the Federal Court of Australia that the proceedings be referred under s. 118c for hearing and determination by a Full Court of the Federal Court of Australia. When the proceedings were part heard before the Full Court, the applicants applied to a single judge for interim orders under ss. 140 (10) and 141 (2) in relation to a proposed meeting of the federal council of the organization at which proposed alterations to the rules of the organization were to be considered.

Held: (1) Section 118A (4A) provided that the original jurisdiction of the court under s. 140 and s. 141 should be exercised by a single judge and while an order had been made under s. 118c that the proceedings be heard and determined by a Full Court, the making of such an order did not operate to require that the power of the court under s. 140 (10) and s. 141 (2) to make interim orders (in relation to matters to which matters raised in the proceedings were relevant under s. 140 (10) or in relation to the matters to which the proceedings related under s. 141 (2) be exercised by a Full Court.

(2) The principles applicable to the granting of interim orders under s. 140 (10) and s. 141 (2) did not differ from those applicable to the granting of interlocutory injunctions, viz. whether the applicant had established a prima facie case and whether the inconvenience to the applicant of refusing the application outweighed the inconvenience to the respondent of granting the application.

Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968), 118 CLR 618, applied.

(3) The applicants had not established a prima facie case concerning one of the matters in relation to which an interim order was sought because it had not been shown that the order sought would be an order in relation to a matter to which the matters raised in the proceedings were relevant under s. 140 (10) or an order in relation to the matters to which the proceedings related under s. 141 (2). Accordingly, the court possessed no jurisdiction to make one of the orders sought.

(4) The applicants had established a prima facie case concerning the other matter in relation to which an interim order was sought; the requirements of the rules of the organization in relation to their alteration which were mandatory in nature had not been observed.

(5) However, the inconvenience which the applicants would be likely to suffer if such an interim order were refused did not outweigh any inconvenience which the respondents would suffer if such an order were granted because: (a) difficulty attended the indentification of the inconvenience the applicants would be likely to suffer if the interim order were refused; (b) any proposed alterations to the rules could not, under s. 139 (4), take effect until particulars of the alteration had been filed with the registrar who was required to certify that the alteration had been made in accordance with the relevant procedures laid down by the rules: the respondents had undertaken that until the Full Court had determined the matter, they would not request the registrar to grant his certificate in relation to any such alterations to the rules; and (c) if the events anticipated by the applicants in seeking the interim order transpired, proceedings could be instituted in relation to their occurrence and interim orders then sought in the light of evidence directed specifically to the harm alleged by the applicants to warrant the making of the interim order. Accordingly, as the applicants had failed to satisfy the court that the balance of convenience lay in granting the interim order sought, the application should be dismissed.

HEARING

Melbourne, 1979, August 14, 15, 16. #DATE 16:8:1979

APPLICATION FOR INTERIM ORDERS.

Members of an organization registered under the Conciliation and Arbitration Act 1904 instituted proceedings under ss. 140 and 141. After the proceedings were referred under s. 118C to a Full Court of the Federal Court of Australia and were part heard before the Full Court, the claimants sought interim orders under s. 140 (12) and s. 141 (2).

P. J. O'Callaghan Q.C. and R. J. Johnstone, for the applicants.

M. Harrison (solicitor), for the first twelve respondents.

A. J. Macken (solicitor), for the thirteenth to twenty-third respondents.

Cur. adv. vult.

Solicitors for the applicants: McClellands.

Solicitors for the first twelve respondents: M. Harrison.

Solicitors for the thirteenth to twenty-third respondents: A. J. Macken.

MAUREEN HICKEY

JUDGE1

August 16.

The following judgment was delivered.

KEELY J. This is an application for interim orders pursuant to s. 140 (10) and s. 141 (2) of the Conciliation and Arbitration Act 1904. As amended at the hearing the application seeks the following orders: "1. That pending the further order of the court all parties to the above proceedings treat as null and void and of no legal effect all purported resolutions of a meeting or meetings of the federal council of the respondent organization purportedly called for the 15th, 17th and 18th August, 1979, and any adjournment thereof and any meeting of the executive committee held in connexion with such meeting or meetings. 2. That pending the further order of the court the fifteen delegates to represent the respondent organization at the Australian Council of Trade Unions 1979 biennial congress shall in addition to the federal secretary and federal assistant secretary be such other members of the respondent organization as are appointed as such delegates by the branch committee of management of each of the Queensland, New South Wales, Victorian and South Australian branches, each branch to appoint three delegates except the Victorian branch which shall appoint four delegates." (at p145)

1. The court's power to make interim orders exists "at any time after proceedings under" s. 140 or s. 141 have been instituted. Proceedings under both of those sections have been instituted (matter V. No. 12 of 1979) and are at present part heard before a Full Court which heard the matters for several days in June 1979 and is to resume the hearing on 17th September, 1979. The power invoked under s. 141 (2) in these proceedings is to "make such interim orders as it thinks fit in relation to the matters to which the proceedings relate" i.e. the proceedings before the Full Court. The application for interim orders was opposed by Mr. Harrison on behalf of all of the respondents other than the respondents Garry Ernest Sherriff, E. M. McManus, S. Loucanaris, J.E. Ford, A. Harvey, T. Gearon, P. Slevin, J. J. McDougall, R. Bennion, A. C. Knight and M. Anderson. The respondents represented by Mr. Harrison also constitute all of the respondents in the Full Court proceedings except J. S. Thompson, J. O'Neill and W. Taylor, who are the applicants for the interim orders. The present application was heard on Tuesday, Wednesday and today. As the application related to meetings proposed to be held yesterday (now adjourned until Friday) and on Friday and Saturday of this week (15th, 17th and 18th August respectively) it is necessary that the matters be determined today. (at p146)

2. A question was raised as to whether s. 140 (10) and s. 141 (2), in conferring upon "the Court" the power to make interim orders, conferred that power upon the court constituted by a single judge in the present case. The question arises because the "proceedings . . . (which) have been instituted" (which proceedings are a condition precedent to the existence of the power to make interim orders under either s. 140 (10) or s. 141 (2)) have been the subject of an order under s. 118C, made by the court constituted by a single judge, "that the proceedings be heard and determined by a Full Court". In the time available this question has not been argued as fully as I would have wished. However, the urgency of this application requires that it be decided and I have reached the conclusion that the power is exercisable by the court constituted by a single judge. Section 118A (4A) provides (inter alia) that the original jurisdiction of the court under s. 140 and s. 141 of the Act "shall be exercised by a single Judge". The single judge in exercising that jurisdiction "may, at any stage of the proceedings . . . order that the proceedings be heard and determined by a Full Court" (s. 118C). In my view the exercise of that power under s. 118C in matter V. No. 12 of 1979 does not operate to require that the power conferred upon the court by s. 140 (10) and s. 141 (2) be exercised by a Full Court. (at p146)

3. Mr. O'Callaghan Q.C., who appeared with Mr. Ray Johnstone for the applicants, did not submit that, in considering whether to make the interim orders sought, the relevant principles are different from those to be observed in dealing with applications for interlocutory injunctions. As the High Court said in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd.: "The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. . . . The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted" (1968) 118 CLR 618, at pp 622, 623 . (at p147)

4. I turn to the first matter - whether the applicants have made out a prima facie case. As this is an application for interim orders it is not desirable that I should form any concluded views as to the evidence on the issues in dispute. (at p147)

5. The applicant J. S. Thompson is a member of federal council and the branch secretary of the New South Wales branch of the Vehicle Builders Employees' Federation of Australia (the federation). There is evidence that he received from the respondent, L. C. Townsend, who is the federal secretary, on Friday 6th July, 1979, a telex message and on Monday 9th July, 1979, a letter with certain enclosures relating to the proposed alterations to the rules. The letter was dated 5th July, 1979, was headed "To all State branch secretaries and federal councillors", and concluded by saying "It follows that there will be meetings of the federal council on 15th, 17th and 18th August, 1979, respectively". There is no evidence at present before the court as to when the letter was posted. (at p147)

6. Rule 50 of the certified rules of the federation (the rules) provides as follows: (at p147)

7. "50. Amendment of federal rules: (a) Amendments may be made to these rules and new rules may be made and any existing rule may be deleted or deleted and replaced by a new rule, by a resolution carried at a meeting of federal council, of which not less than six weeks' notice in writing specifying the nature of the proposed alteration to the rules shall be given to each member of federal council. (b) The federal secretary shall give to each branch secretary not less than six weeks' notice in writing of any meeting of federal council at which an alteration or amendment of these rules is proposed to be made. Such notice shall specify the nature of the proposed alteration or amendment. (c) Upon receipt of the notice referred to in the last preceding sub-rule, each branch secretary shall call a general meeting of his branch for the purpose of considering the proposed alteration or amendment. Each such branch meeting shall be held not less than two weeks prior to the meeting of federal council at which the alteration or amendment is proposed to be made. (d) Each of the branch meetings referred to in the preceding sub-rule shall be called by notice specifying the nature of the proposed alteration or amendment and given not less than two weeks prior to the date fixed for each respective branch meeting." (at p148)

8. The applicants contend that neither of the meetings of federal council called for 15th and 18th August, 1979, is a meeting "of which not less than six weeks' notice in writing" has been "given to each member of federal council" and given "to each branch secretary" as required by r. 50 (a) and (b) of the rules. It was argued by Mr. Harrison for the respondents to the present application that the requirements of r. 50(a) are met if the "notice in writing" has been posted six weeks before the proposed meeting. I am unable to accept that contention as the rule requires that the recipients of the notice in writing shall be given, (i.e. shall have) "not less than six weeks' notice" both of the meeting and of "the nature of the proposed alteration to the rules". Mr. Harrison referred to the possibility of a situation where a member of federal council would have received the notice in writing in the ordinary course of post but failed to do so by reason of his absence from his office on leave. It may be that such a failure would not result in noncompliance with r. 50(a) but it is unnecessary to consider that question in this matter. (at p148)

9. It was also argued by Mr. Harrison that the telex message sent and received on Friday 5th August, 1979, constituted a "notice in writing" within r. 50(a). Assuming that a telex message may constitute a "notice in writing" within the meaning of r. 50, in my view the telex message sent and received did not specify "the nature of the proposed alteration to the rules" within the meaning of r. 50 (a). On the material before me I have formed the opinion that the applicants have established a prima facie case that the requirements of r. 50 (a), as to the method of making amendments to the rules, were not complied with in such a manner us to permit amendments to be made to the rules at the proposed meetings of the federal council on 15th or 18th August. (at p148)

10. I also consider that the applicants have established a prima facie case that the federal secretary failed to comply with r. 50 (b) in that he failed to "give to each branch secretary not less than six weeks' notice in writing of any meeting of federal council at which an alteration or amendment of" the rules was proposed - the notice being required to "specify the nature of the proposed alteration or amendment". (at p148)

11. Rule 50 (c) requires that "each branch secretary shall call a general meeting of his branch for the purpose of considering the proposed alteration or amendment. Each such branch meeting shall be held not less than two weeks prior to the meeting of federal council at which the alteration or amendment is proposed to be made". It is common ground that no such meeting of the New South Wales branch was called or held. Mr. Harrison argued that the applicants should not be permitted to take advantage of the failure of the applicant Mr. Thompson to call a meeting of the New South Wales branch. However, the material before me establishes a prima facie case that the applicant Mr. Thompson was not under any duty to call such a meeting of the New South Wales branch because he had not received six weeks' notice in writing of the proposed meeting of federal council. (at p149)

12. I also consider that the applicants have established a prima facie case that the rules did not authorize the federal executive or the federal secretary to take action to have the federal council meeting which adjourned in March 1979 resume on Friday 17th August, 1979. In considering that question I have carefully considered r. 13 and r. 17 (e) upon which Mr. Harrison placed particular reliance. (at p149)

13. It is strongly arguable that the requirements of r. 50 as to the amendment of federal rules are mandatory (see Morris v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 FLR 60 and Roots v. Mutton (1978) 32 FLR 15 ). In the light of the material before the court at this time I consider that, in respect of par. 1 of the present application, the applicants have made out a prima facie case within the meaning of the passage which I have quoted from Beecham's case (1968) 118 CLR, at pp 622, 623 . (at p149)

14. I am also satisfied that an order granting substantially the interim relief sought in par. 1 of the application (but altered in form so as to refer only to such resolutions as may be passed) would be an order "in relation to the matters to which the proceedings (matter V. No. 12 of 1979) relate" as required by s. 141 (2) (see also s. 140 (10)). However, I am not satisfied that the order sought in par. 2 of the application (as to representation of the federation at the Australian Council of Trade Unions 1979 biennial congress) would be an order "in relation to the matters to which the proceedings relate", or an order "in relation to a matter to which the matters raised in the proceedings are relevant" as required by s. 140 (10). Mr. O'Callaghan was unable to refer me to any reference to the Australian Council of Trade Unions biennial congress in: (a) the rule to show cause in matter V. No. 12 of 1979; (b) the affidavit of the claimant G. E. Sherriff in those proceedings (except a resolution contained in the minutes annexed to it), or (c) in the rules of the federation - other than r. 53 which deals with "where the rules are silent". Accordingly, in my view the court has no jurisdiction to make the interim order sought in par. 2 of the present application. (at p149)

1. It is convenient to refer at this stage to two arguments put by Mr. Harrison that the court should not make an order under s. 141 (2) of the Act in all the circumstances, i.e. that it should exercise its discretion against making such an order. He first argued that an order made by the court granting par. 1 of the application would "foreclose" the respondents from subsequently seeking to raise the question of the validity of the meetings in the proceedings in the Full Court. I am unable to accept that submission. Section 141 (3) expressly provides that an interim order "continues in force, unless expressed to operate for a shorter period or unless sooner discharged, until the completion of the proceedings under this section", i.e. until the completion of the proceedings under s. 141, the hearing of which is listed to resume in the Full Court on 17th September, 1979. A provision similar to that which I have just quoted from s. 141 (3) is contained in s. 140 (11) with reference to an interim order made under s. 140 (10). (at p150)

2. Mr. Harrison also relied upon the delay in making the present application. On the evidence before the court Mr. Thompson, the secretary of the New South Wales branch, was absent on leave from the evening of Friday 6th July, 1979, until the morning of Monday 23rd July, 1979. The present application was filed on Friday 10th August, 1979. On Thursday 9th August, 1979, the applicant J. S. Thompson had sent to the federal secretary, the respondent L. C. Townsend, a telex stating that he had received legal advice that neither the telex of 6th July, 1979, nor the letter dated 5th July, 1979, and its enclosures, which was received on 9th July, 1979, constituted notice for the purposes of r. 50 (b). His telex message proceeded to request confirmation "that no purported meetings of federal council will be held on 15th, 17th, and 18th, August, 1979," and informing the respondent Mr. Townsend that unless he received such confirmation he would apply immediately to this Court for orders restraining the holding of the meetings. I accept the submission by Mr. O'Callaghan that the material before the court does not warrant a finding that there has occurred any delay that is relevant to the exercise of the court's discretion as to whether to make the interim orders sought. (at p150)

3. As to the interim order sought in par. 1 of the present application, having regard to the prima facie case of a failure to comply with the mandatory requirements of r. 50 (a), (b) and (c), I now consider the second aspect referred to in the passage which I have quoted from Beecham's case (1968) 118 CLR, at pp 622, 623 . Although the question is not simply one of convenience - as the passage quoted shows - it is referred to as the "balance of convenience" aspect. (at p150)

4. On all the material before the court I am not satisfied that any inconvenience or injury which the applicants would be likely to suffer if an interim order as sought in par. 1 of the application were refused, would outweigh any injury which the respondents would suffer if such an interim order were made. On this aspect the affidavit of the applicant J. S. Thompson included the following paragraphs: "13. I say that the proposed alterations to rules and other matters intended to be considered by the purported meetings of federal council involve matters of fundamental importance to the New South Wales branch and other branches including the abolition of existing sub-branches, the restriction of the present rights of branches to create subbranches, restrictions on or removal of the existing rights of branches as to their internal organization, their relationship with other branches and their entitlement or representation on federal council proportional (sic) to their membership. 14. I am concerned that unless restrained by order of this Honourable Court decisions may be purportedly made and acted upon at the said purported meetings of federal council which are contrary to the best interests of the respondent organization and the members of the New South Wales branch and which may be adopted by reason of the invalidities referred to in the above proceedings and in this my affidavit." (at p151)

5. However, if any of the proposed meetings of federal council are held, and if any resolutions are made purporting to alter the rules of the federation, then any such alterations will "not have effect until particulars of the alteration have been filed in the office of the (industrial) registrar and the registrar has certified that the alteration . . . has been made in accordance with the relevant procedures laid down by the rules . . ." (s. 139 (4)). In addition, Mr. Harrison has undertaken that, until the Full Court has decided the matter, none of the respondents for whom he appears will request the industrial registrar to grant his certificate (under s. 139 (4)) as to any such alterations to the rules. (at p151)

6. If any of the proposed meetings challenged in the present matter are held and any resolutions are carried - whether by way of purported alteration to the rules or otherwise - then it will be open to the present applicants to apply for a rule to show cause directing the present respondents to treat any such resolutions as being null and void and of no legal effect. If desired an application could be made to have any such proceedings heard and determined by a Full Court. A request could be made that it be heard by the Full Court dealing with matter V. No. 12 of 1979 on 17th September, 1979. Further, if any good reason existed for an earlier determination as to the validity of any resolutions carried at any such meetings, the rule to show cause could be made returnable before a single judge at an earlier point of time for final determination. Alternatively, an application could be made to a single judge for the making of interim orders. (at p151)

7. Any such hearing would be at a time when the court determining the matter had evidence as to the precise terms of any resolutions. Further, if interim orders were sought, the court would be able to consider the application in the light of evidence directed specifically to the harm alleged by the applicant to warrant the making of interim orders. One of the difficulties of the present case is to consider the question of likely inconvenience or injury to the applicants in respect of resolutions which have not yet been passed and which may not be passed at meetings which have not yet been held and which may not be held. This difficulty was illustrated by Mr. O'Callaghan who, in answer to a question from the court as to precisely what injury or inconvenience would be likely to be suffered by the applicants if the interim order sought were refused, said (inter alia) that "there may be other harm we cannot identify". Mr. O'Callaghan referred to two specific matters. One was to suggest that the respondents intended to forward any alterations to the rules to the industrial registrar - a matter to which I have already referred, and as to which Mr. Harrison's undertaking is relevant. The other matter was to contend that any purported amendments to the rules at the meetings would proceed without the proposed amendments having been considered by the New South Wales branch. This does not in my view in the circumstances of this case constitute a sufficient reason for making interim orders as distinct from making orders if and when the matter is before the court for final determination. (at p152)

8. Lastly, Mr. O'Callaghan submitted that the court should be astute to deal with any invalid actions. However, as I have said earlier, he refrained from submitting that the principles relating to interlocutory injunctions were not applicable to the present application for interim orders. On those principles in order to succeed he must satisfy the court as to the "balance of convenience" as explained in Beecham's case (1968) 118 CLR, at pp 622, 623 . In my view the applicants have failed to do so. (at p152)

9. Perhaps I should add that on the material placed before the court I am also not satisfied that any inconvenience or injury which the applicants would be likely to suffer if an interim order, as sought in par. 2 of the application, were refused, would outweigh any injury or inconvenience which the respondents would suffer if such an interim order were made. Accordingly, the application is dismissed. (at p152)

ORDER

Application dismissed.