Johnston v Cameron

Case [2002] FCA 948

FEDERAL COURT OF AUSTRALIA

Johnston v Cameron [2002] FCA 948

INDUSTRIAL LAW – application pursuant to s 209 of Workplace Relations Act 1996 (Cth) – applicant seeks orders prohibiting publication of evidence in proceeding – principles governing such orders under s 50 of Federal Court of Australia Act 1976 (Cth) – National Council of Union proposes to hear charges against applicant – applicant claims resolutions of National Council invalid – application for interim orders under s 209(4) – whether serious question to be tried – whether balance of convenience favours grant of interim orders.

Federal Court of Australia Act 1976 (Cth) s 50
Workplace Relations Act 1996 (Cth) s 209(4)

Scott v Scott [1913] AC 417 at 435, 437, 438 and 439 referred to
Attorney General v Leveller Magazine Ltd [1979] AC 440 at 449-450 referred to
E v Australian Red Cross Society (1991) 27 FCR 310 at 313 considered
Versace v Monte [2001] FCA 1565 considered
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 referred to
John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 141 and 161 referred to
Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47 referred to
Australian Broadcasting Commission v Parish (1980) 29 ALR 228 considered
Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438 considered

R v G (1984) 12 A Crim R 189 referred to
R v Hermes; Ex Parte V [1963] SASR 81 at 84 referred to
McGee v Sanders (No 2) (1991) 32 FCR 397 at 402-403 referred to
Adlam v Noack (1998) 90 IR 31 at 34-35 considered
Johnston v Cameron [2002] FCA 634 par 30 considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 referred to
Hansch v Transport Workers’ Union of Australia [1998] 14 FCA (25 May 1998) referred to
Campbell v Higgins (1957) 3 FLR 317 referred to
Ephstathis v The Greek Orthodox Community of St George (1998) 13 ACLR 691 referred to
McMahon v Gould (1982) 1 ACLC 98 referred to
Cameron’s Unit Services Pty Ltd v Whelpton & Associates Pty Ltd (1984) 59 ALR 754 referred to
Philippine Airlines v Goldair (Aust) Pty Ltd [1990] VR 385 referred to
Cains v Jenkins (1979) 42 FLR 188 referred to
Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 referred to
Joyce v Christoffersen (1990) 26 FCR 261 at 262 and 292 referred to
Whittle v The Australian Miniature Pony Society Incorporated (1995) 57 FCR 252 at 268-270 referred to
Dodd v Johnston (1999) 91 IR 352 referred to
Adlam v Bauer (1999) 93 IR 114 referred to
Haritou v Skourdoumbis [2002] FCA 116 at para 13 referred to
Jia v Minister for Immigration and Multicultural Affairs (2001) 178 ALR 421 referred to
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 referred to
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 referred to
Nicholson v…

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AGLC
Johnston v Cameron [2002] FCA 948
Case
[2002] FCA 948
Decision Date

CaseChat Overview and Summary

In Johnston v Cameron, the court dealt with a dispute regarding the validity of certain resolutions passed by the National Council of the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union (the Union). Mr Johnston, the State Secretary of the Union, sought suppression of evidence and interim orders to restrain the Union from implementing resolutions passed on 9 July 2002. These resolutions, among other things, appointed an administrator for the Victorian Branch of the Union and directed that certain decisions of the State Council on 8 July 2002 be disregarded.

The central legal issues before the court were whether the resolutions passed by the National Council were valid, and if the court should grant interim orders to restrain the Union from implementing those resolutions. The validity of the resolutions depended on whether they were passed in accordance with the Union's Rules and the Act. Additionally, the court needed to determine whether the applicant had demonstrated a serious question to be tried regarding the validity of the resolutions and whether the balance of convenience favoured granting the interim orders.

The court found that the National Council had not followed the proper procedures outlined in the Union's Rules when passing the resolutions. Specifically, the court noted that Rule 13 sub-rule 9 required that the matter for consideration by the National Council be communicated to all Councillors at least one day prior to the meeting. The court determined that this requirement had not been met, rendering the resolutions invalid. Furthermore, the court concluded that the applicant had demonstrated a serious question to be tried regarding the validity of the resolutions, and the balance of convenience favoured granting the interim orders.

Accordingly, the court restrained the respondents from taking any steps in furtherance of, giving effect to, or requiring observance of the resolutions passed by the National Council on 9 July 2002. The court's decision ensured that the Union could not implement the invalid resolutions until the matter was fully heard and determined.

Orders

Orders of the court

Until the hearing and determination of this proceeding, or further order, the respondents, and each of them, be restrained from taking any steps in furtherance of, giving effect to, or requiring observance of, those resolutions of the National Council of the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union (“the Union”) made on 9 July 2002 directing that:

· the sixth respondent be the administrator of the Victorian Branch of the Union and have all the powers of the State Secretary and carry out all of the duties of the State Secretary.

· no official, officer or staff member in the Victorian Branch of the Union is to act upon or in any way give effect to any purported decisions of the meeting of the State Council of the Victorian Branch of the Union on 8 July 2002 concerning the management of staff, officers or officials of the Branch or the allocation of their work or in any manner related to the duties or the performance of those duties by those persons.

· all officials, officers and staff in the Victorian Branch are to act upon and give effect to all resolutions of the National Council in relation to the administration of the Victorian Branch and wherever the National Council resolutions carried at the meeting held on 9 July 2002 are inconsistent with any purported decisions arising from the purported meeting of State Council on 8 July 2002, to treat the resolutions of or decisions or directions arising from the purported meeting as being of no force and effect; and

· the purported resolution of the meeting of State Council on 8 July 2002 as to the performance of the duties of the Victorian State Secretary in the event that the Victorian State Secretary is not on duty is void and of no force and effect in relation to any periods specified in resolutions of the meeting of National Council on 9 July 2002 arising from the charges of the twenty-third respondent during which the administrative arrangements specified in those resolutions in the Victorian Branch are binding upon all members and staff of the Union in Victoria.

Background

Background to the litigation

This judgment contains my reasons for dismissing the applicant’s notice of motion seeking suppression of the evidence in this proceeding, as well as my decision regarding the application for interim orders.BACKGROUND Mr Johnston was elected State Secretary of the Branch in July 2000. He also holds office as a delegate to the National Conference, is a member of the National Council, and is a member of the National Administrative Committee. The first respondent, Doug Cameron, is the National Secretary of the Union. The second respondent, Julius Roe, is the National President. Mr Addison is employed as an Industrial Officer in the Branch. The Union is an organisation of employees registered under the Act. Its supreme governing body is the National Conference which is comprised of members of National Council, and other delegates. The powers of National Council are set out in the Rules, and particularly in Rule 8. The National Administrative Committee is constituted under Rule 10 sub-rule 2. It administers the affairs of the Union in accordance with the policies of the National Conference and National Council. The Union is divided into State branches. Each branch has a State Conference established under Rule 23, which is vested with the powers set out in Rule 24. Below the State Conference is the State Council established under Rule 25, which is vested with the powers set out in Rule 26. Rule 13 is headed “Rights of Officials”. Sub-rule 1 provides that no person elected to an office within the Union shall be removed from that office except in accordance with Rule 13. Sub-rules 3 to 7 make provision for the removal of elected officials in circumstances where they have been “found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty …”. Such officials, depending upon whether they be National or State, may be removed by a two-thirds majority of votes taken at a meeting of, inter alia, National Conference, National Council, State Conference or State Council. Where such a resolution has been carried by National Council or State Council it must be submitted to the National Conference or State Conference, as the case may be, for endorsement. No such resolution has force or effect until such time as it has been endorsed. Rule 13 sub-rule 8 provides that any member “desiring to invoke” the preceding sub-rules 3 to 7 against an elected official shall, in writing, charge that person with the conduct or circumstances alleged to justify that person’s removal from office. The written charge must be forwarded to the National Secretary who is required forthwith to forward a copy to the person against whom the charge is made, while at the same time requesting that person to advise whether the charge is admitted or denied, or otherwise comment upon it. Rule 13 sub-rule 9 provides that at the next ordinary or special meeting of National Council (including a meeting of National Council by telephone hook-up) the charge and any reply made by the person against whom the charge is made shall be considered. National Council is then empowered to resolve that:·the person be called upon to show cause to National Conference, or to National Council, why that person should not be removed from office; or·to refer the charge to be heard by a State Conference, or by a State Council; or·to resolve that no further action be taken.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WEINBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

Sub-rule 5 is important. It provides that the business of National Council when not in meeting assembled may be transacted by telephonic hook-up. However, it states: “The matter or matters for consideration by the National Council shall be communicated by the National Secretary and/or an Assistant National Secretary to all Councillors at least on the day prior to the hook-up taking place.” (emphasis added) Rule 13 sets out the procedure governing the laying of charges against officials, and the hearing and determination of those charges. It differentiates between “National Officials” and “State Officials”. It provides that, in the case of National Officials, they may be removed from office by a two-thirds majority of votes taken at a meeting of National Conference or National Council, in circumstances where a National Official has been found guilty under the Rules of “misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty . . .” In the case of State Officials, as noted earlier in these reasons for judgment, there are corresponding powers in the State Conference and State Council. Any member desiring to invoke these procedures for removal against a person elected to an office is required to charge that person, in writing, with the conduct or circumstances alleged to justify his or her removal from office, and to forward the written charge to the National Secretary. As noted earlier, sub-rule 9 provides that at the next ordinary or special meeting of National Council the charge and any reply by the person against whom the charge is made shall be considered, and National Council may resolve that the person charged be called upon to show cause to National Conference or National Council why he or she should not be removed from office. Alternatively, National Council may resolve that the charge should more properly be heard by State Conference or State Council. It is also open to National Council to determine that no further action be taken. Rule 13 sub-rule 9(c) is important. Its effect is that if the charge in question relates solely to the affairs of a particular State and to a State Official who only holds office in that State or representing that State, National Council shall remit the matter to the relevant State Secretary to be dealt with by the State Conference or State Council of that State “unless the National Council is of the view that the charge cannot be fairly dealt with by that State”. Rule 24 deals with the powers of State Conference, and Rule 26 with the powers of State Council. Rule 26 sub-rule 4 provides that State Council shall supervise and direct all work of all full-time officers. Rule 29 makes provision for the duties of State Secretary and Assistant State Secretaries. However, it makes no provision for what is to occur in circumstances where, for whatever reason, the State Secretary is temporarily unable to perform those duties. IS THERE A SERIOUS QUESTION TO BE TRIED?GROUND (I)