Johnston v Cameron

[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 Pitt (unreported, Industrial Relations Court of Australia, 15 November 1995) at p 13 referred to

CRAIG JOHNSTON v DOUG CAMERON & OTHERS (According to Schedule annexed hereto)

V455 of 2002

WEINBERG J
30 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V455 OF 2002

BETWEEN:

CRAIG JOHNSTON
APPLICANT

AND:

DOUG CAMERON
FIRST RESPONDENT

AND OTHERS (According to Schedule annexed hereto)
SECOND TO TWENTY-THIRD RESPONDENTS

JUDGE:

WEINBERG J

DATE OF ORDER:

30 JULY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

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.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V455 OF 2002

BETWEEN:

CRAIG JOHNSTON
APPLICANT

AND:

DOUG CAMERON
FIRST RESPONDENT

AND OTHERS (According to Schedule annexed hereto)
SECOND TO TWENTY-THIRD RESPONDENTS

JUDGE:	WEINBERG J
DATE:	30 JULY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant in this proceeding, Craig Johnston, is the State Secretary of the Victorian Branch (“the Branch”) of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”).  The respondents, other than the twenty-third respondent, Maurice Addison, are all members of the National Council of the Union.

2. On 17 July 2002, a rule to show cause, pursuant to s 209 of the Workplace Relations Act 1996 (Cth), was granted to Mr Johnston by Marshall J. The rule called on the respondents to show cause why orders should not be made requiring them to perform and observe the Rules (“the Rules”) of the Union.

3. By the rule to show cause, Mr Johnston sought to have the respondents perform and observe the Rules “by treating as null and void, and of no effect the resolutions of the National Council passed on 9 July 2002”,  “by treating two charges laid against him on 3 July 2002, as null and void, and of no effect”, and “by refraining from taking any further action or steps to investigate, hear or determine the charges”.  

4. Mr Johnston also sought interim orders, pursuant to s 209(4), that until the hearing and determination of this proceeding, or further order, the respondents treat as null and void and of no effect the resolutions of National Council passed on 9 July 2002, and that they be restrained from taking any further action or steps to investigate, hear or determine the charges.

5. The rule to show cause was made returnable on 19 July 2002. At the request of the applicant, Marshall J, when granting the rule, made an interim suppression order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) prohibiting publication of any evidence in this proceeding. That order was to operate until the rule was made returnable.

6. The application for interim orders was originally scheduled to be heard by Marshall J on 19 July 2002.  However, on the morning of the hearing, an affidavit sworn by a deponent with whom his Honour was well acquainted, the Honourable Joe Riordan AO, was filed on behalf of the respondents.  His Honour drew to the attention of the parties his long standing friendship with Mr Riordan and asked if this caused any difficulty.  Upon being told by counsel for Mr Johnston that Mr Riordan’s credibility might be in issue, and being asked to excuse himself, his Honour decided that the matter should be heard by another judge.  At the request of Mr Johnston, and upon notice of motion, his Honour extended, until further order, the suppression order which he had previously made.

7. The proceeding came before me, as a matter of urgency, on 22 July 2002.  The first issue raised was whether the suppression order which Marshall J had made on 17 July 2002, and extended on 19 July 2002, should be continued.  The applicant relied upon an amended notice of motion seeking that relief.  After hearing extensive argument, including opposition from The Age newspaper, I determined that the applicant’s notice of motion should be dismissed, and that his Honour’s order, pursuant to s 50, be varied. I indicated that a more limited form of suppression would be ordered, confined to prohibiting publication of the name of the person responsible for the allegation against Mr Johnston (“the complainant”), or any evidence that might tend to identify that person. I said that I would give my reasons for decision at a later time.

8. I was asked by counsel for Mr Johnston to continue the wider suppression order made by Marshall J until those reasons were delivered so that consideration could be given to a possible appeal.  I acceded to that request. 

9. 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

10. 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. 

11. 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. 

12. 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.

13. 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.

14. 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. 

15. 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. 

16. 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. 

17. Rule 13 sub-rule 14 provides that an office holder may be directed by resolution of National Council (in the case of a charge to be heard by National Conference or National Council) or by resolution of State Council (in the case of a charge remitted to be heard by State Conference or State Council) not to carry out some or all of the duties attaching to his or her office pending the hearing of any charge against that official.

18. It is against the background of Rule 13 that it becomes necessary to set out briefly some details of Mr Johnston’s involvement in the Union.  He was first elected to State Conference in 1984. He was elected to State Council in 1986.  In 1990 he became a recruitment officer with the Branch and was elected as a delegate to the National Conference.  In 1993 he was elected, unopposed, as an Organiser with the Branch.  He was again elected, unopposed, in 1997.  He was first elected to National Council in 1998. 

19. Mr Johnston originally became a member of a group within the Union which was later called “the National Left”.  That group consisted of elected officials, and rank and file members, who supported John Halfpenny, the former State Secretary.  As a member of the National Left, Mr Johnston campaigned on behalf of candidates for Branch elections who were members of that group. 

20. In 1997 Mr Johnston resigned from the National Left because he believed that the Union, under Mr Cameron, was not sufficiently militant in its dealings with employers.  He helped form a breakaway group.  Its strategy was to challenge the National Left for control over the Branch.  It eventually adopted the name “Workers First”.

21. Workers First stood candidates against the National Left in the 1998 Branch election.  Frank Fairley was elected State Secretary.  Mr Johnston was elected as one of several Assistant State Secretaries.  In 1999 Mr Fairley resigned owing to ill health.  His resignation meant that State Council had to appoint an acting State Secretary until an election could be held.  The person appointed was Mr Roe, an industrial officer with the Technical and Services Division, and a member of the National Left. 

22. The election for State Secretary was held in 2000.  Mr Johnston, with the support of Workers First, defeated Mr Roe.  Shortly thereafter, National Council, which was dominated by the National Left, appointed Mr Roe to the position of National President after that position became vacant.

23. In order to understand why Mr Johnston sought an order suppressing publication of the evidence in this proceeding, it is necessary to summarise the evidence adduced before me.  The facts set out below are drawn from the affidavits filed in support of, and against, the interim orders sought.  However, it is important to note that none of the deponents were cross-examined.  I am not in a position to make any definitive finding regarding the truth or accuracy of their evidence, and this judgment does not purport to do so.

24. Mr Johnston said that in about January 2002 he learned that certain rumours were circulating within the Branch.  He spoke to Mr Fairley about those rumours.  Mr Fairley said that Nick Koletsis, an official with the Community and Public Sector Union, had told him that he had been contacted by Mr Roe who informed him that, on the night of 24 November 2001, at the Branch office, Mr Johnston had raped the complainant, a female organiser with the Union.  Mr Johnston said that he told Mr Fairley that the allegation was untrue. 

25. Mr Johnston said that he was stunned to learn of the allegation.  He said that he was particularly concerned that it was Mr Roe, the National President, who was spreading the rumour.  He was aware that the National office had been behind the forced resignation of an official in South Australia after allegations of sexual misconduct had been made against him.  He said that he contacted another female organiser whom he knew to be a friend of the complainant and discussed the allegation with her.  She agreed to speak to the complainant about the matter. 

26. According to Mr Johnston the woman telephoned him, either on that day or the next, and told him that she had spoken to the complainant.  She said that the complainant had told her that she was angry that Mr Roe was spreading the rumour, as it was not true.  She also said that the complainant had told her that she would telephone Mr Johnston to discuss the matter with him.  However, according to Mr Johnston, the complainant did not do so. 

27. Mr Johnston said that at about 11am, on 3 July 2002, he was at the Branch Office when Mr Cameron handed him an envelope.  He said that he did not open the envelope until later that day.  It contained a covering letter from Mr Cameron.  Attached to that letter was a document containing two charges formulated by Mr Addison.  The letter asked Mr Johnston not to carry out any of the duties attaching to any of the offices held by him in the Union until further direction.  It advised him that if he did not voluntarily agree, Mr Cameron would recommend to National Council that it direct Mr Johnston not to carry out those duties.  It also advised him that Mr Cameron would recommend that he receive his ordinary salary until the conclusion of any hearing in relation to the charges. 

28. Mr Cameron noted in the letter that Mr Addison claimed that the hearing of the charges could not be fairly dealt with by the State Conference or the State Council, and had requested that they be heard and determined by National Council.  Mr Cameron foreshadowed that he would recommend to National Council that Mr Addison’s request be accepted.  Finally, Mr Cameron advised that there would be an urgent meeting of National Council, by telephone hook-up, to consider the charges and “matters arising under rule 13”.  The meeting would be held, pursuant to Rule 13 sub-rule 9, at 10am on 9 July 2002.

29. The charges, as formulated by Mr Addison, were in the following terms:

    “CHARGES IN RELATION TO CRAIG JOHNSTON, VICTORIAN STATE SECRETARY, AMWU

    1.I, Maurice Addison, Member No. 3233972, hereby charge Craig Johnston, who holds the offices of Victorian State Secretary, National Conference Delegate and Member of National Council of the Union, with gross misbehaviour, in that on or about 24 November 2001 and between the times of 11.30pm and on or about 1 am 25 November 2001 on the premises of the Union at 440 Elizabeth Street, Melbourne, Victoria, he had sexual intercourse with [the complainant], who was and is an employee of the Union, without her consent.  In bringing this charge under rule 13 of the rules of the Union against Bro. Johnston I add that, in my opinion, this charge cannot be fairly dealt with by the Victorian State Council or the Victorian State Conference of the Union.

    2.I, Maurice Addison, Member No. 3233972, hereby charge Craig Johnston, who holds the offices of Victorian State Secretary, National Conference Delegate and Member of National Council of the Union, with a substantial breach of the rules of the Union in that on or about 24 November 2001 and between the times of 11.30pm and on or about 1 am 25 November 2001 on the premises of the Union at 440 Elizabeth Street, Melbourne, Victoria, he had sexual intercourse with [the complainant], who was and is an employee of the Union, without her consent.  In bringing this charge under rule 13 of the rules of the Union against Bro. Johnston I add that, in my opinion, this charge cannot be fairly dealt with by the Victorian State Council or the Victorian State Conference of the Union.”

1. On 5 July 2002 Mr Cameron sent a facsimile to all members of National Council regarding the proposed meeting on 9 July 2002.  In that facsimile, he referred to his covering letter of 3 July 2002 addressed to Mr Johnston.  He also enclosed documents said to be relevant to that meeting.  These included Mr Addison’s charges (with the complainant’s name deleted), and several proposed resolutions.  These resolutions, if carried, would effectively suspend Mr Johnston from his duties as State Secretary until 14 August 2002, or until the decision of National Council in relation to the charges, whichever was the earlier.  The resolutions also noted that, as neither State Conference nor State Council could fairly hear the charges against Mr Johnston, they should be heard by National Council at a Special Meeting to be convened on 12 to 14 August 2002, called in accordance with the Rules.  The resolutions also set out the procedures to be adopted by National Council in hearing those charges. 

2. Also sent by Mr Cameron to members of National Council was an interim report of an independent inquiry into the Branch which had been prepared by Mr Riordan, and Tom McDonald. 

3. Mr Cameron went on to say, in his letter to members of National Council:

   “I note in the event that my recommendations are accepted by National Council there will be a need for National Council to deal with some consequential administrative matters” (emphasis added)

4. The reference to “consequential administrative matters” assumed considerable significance during the argument in this proceeding.  It is important to note that the proposed resolutions attached to Mr Cameron’s letter were silent as to what would happen, as regards the duties of State Secretary, if Mr Johnston were suspended. 

5. Mr Johnston said that over the weekend of 6 and 7 July 2002 he prepared a detailed response to the allegation.  He also obtained statutory declarations from various persons who were said to support his denials.  He claimed that Mr Addison, a long standing member of the National Left, had not acted bona fide in laying the charges.  He claimed that the allegation was based largely upon the rumours that Mr Roe had been spreading, and that it was defamatory and untrue.  He noted, in particular, that the complainant had not reported the allegation to the police or National Council. 

6. Mr Johnston said that he participated, by telephone link, in the National Council meeting of 9 July 2002.  He said, and there does not appear to be any dispute about this, that at approximately 9.40am, about 20 minutes prior to the commencement of the meeting, Mr Cameron circulated to members, by facsimile, a document containing not only the proposed resolutions previously sent, but several new resolutions.  The new resolutions dealt, for the first time, with the vexed question of who was to perform the duties of State Secretary in the event that Mr Johnston was suspended.  In summary, it was proposed that, Mr Oliver be appointed Administrator of the Branch until 14 August 2002, with all the powers of the State Secretary and, arguably, some additional powers as well.  Mr Oliver would be required to report to National Council regarding the operations of the Branch.  It should be noted that Mr Oliver was a member of National Council.  More significantly, he was a member of the National Left. 

7. All of the resolutions, moved by Mr Cameron, were carried overwhelmingly.  It appears that the only opposition came from Mr Johnston, and the other Victorian members of National Council. 

8. Mr Johnston claimed that the charges brought against him, were part of a campaign orchestrated by Mr Cameron, and his fellow National Left supporters, to remove him from any position of power within the Union.  He identified a number of matters which he argued  supported that claim.  They were:

   ·the failure of Mr Cameron, Mr Roe and Mr Addison to report the allegation to the police;

   ·the fact that Mr Roe had never spoken to Mr Johnston about the matter; and

   ·the fact that Mr Cameron had asked Mr Johnston, several weeks earlier, to stand down as State Secretary.  That was after Mr Johnston had been committed to stand trial in the County Court of Victoria arising out of an alleged incident at the Box Hill offices of Skilled Engineering.  Mr Johnston had refused to do so. 

9. Mr Johnston also said that State Council had met on 8 July 2002.  He had attended that meeting, and informed it of the charges brought against him.  State Council then passed a series of resolutions unanimously expressing full confidence in him.  It had called upon National Council to refer any complaint made against him to it, and not to deal with that complaint at national level.  State Council had also resolved that, pending the resolution of the charges against Mr Johnston, Browyn Halfpenny, an Assistant State Secretary, should act in his stead. 

10. Nonetheless, and despite these resolutions, National Council suspended Mr Johnston on the next day.  It resolved to hear and determine the charges against him, and not to refer them to State Council.  It appointed Mr Oliver, a well known supporter of Mr Cameron, and a factional enemy of Mr Johnston, to perform Mr Johnston’s duties. 

11. Mr Johnston predicted that Mr Oliver’s appointment would cause division and disaffection within the Branch.  In addition, he noted that National Conference was scheduled to meet between 21 and 26 July 2002.  Among the issues to be considered were several upon which he was known to hold strong views.  Those views were at odds with the views held by Mr Cameron.  The issues included “Manusafe”, a form of security for workers’ entitlements, which was supported by Mr Cameron and the National Left, but opposed by Mr Johnston and Workers First.  They also included the proposed disaffiliation of the Union from the Australian Labor Party.  Mr Johnston claimed that his absence from the National Conference would prejudice those members of the Union opposed to the National Left.

12. Finally, Mr Johnston claimed that he had always had a completely cordial and normal working relationship with the complainant, and that nothing had changed since the alleged incident.  He said that she had never expressed any concerns to him about working with him. 

13. Mr Johnston noted that on 12 July 2002 the Complainant had signed a statutory declaration, a copy of which was exhibited to his affidavit.  In that statutory declaration she said:

    “I have recently become aware that charges have been laid under rule 13 of the AMWU rules against Craig Johnston alleging that he raped me on 25 November, 2001.

    I state categorically that I do not wish those charges to be heard by the National Council or any other body of the AMWU.

    I will not co-operate with any such hearing and I will not attend or give evidence at any such hearing.

    I also withdraw all statements made to Mr Riordon’s inquiry or any other official of the AMWU.  Those statements were made under unfair pressure from the National President.

    Finally, I state that I do not hold Maurice Addison responsible for the laying of the charges.  I understand that he did so also under pressure from the National President.

    I am of the firm and clear belief that this whole episode is part of a political campaign to get rid of Craig Johnston.”

14. Mr Johnston said that he had subsequently written to Mr Cameron referring to this statutory declaration.  He had told Mr Cameron that it was now clear that the charges which had been brought against him could not be substantiated, and had called upon him to recommend, to both the National Administrative Committee and National Council, that they be dismissed.  He had also called upon Mr Cameron to recommend that the resolutions passed by National Council on 9 July 2002 be revoked, and to direct Mr Oliver to desist from performing any duties as State Secretary.  According to Mr Johnston, Mr Cameron had not responded to his letter.

15. Mr Johnston’s evidence before me was supported by that of Jim Reid, an Assistant Branch Secretary of the Union.  Mr Reid said that Mr Cameron dominated meetings of National Council.  His views on any contentious issue always held sway.  He claimed that Mr Cameron had made a number of statements which indicated a desire, on his part, to have Mr Johnston removed from any position of power within the Union.  He asserted that it was impossible for Mr Johnston to receive a fair hearing of the charges if they were heard by National Council.

16. In reply to the evidence filed on behalf of Mr Johnston, the respondents filed a series of affidavits denying his claim that the charges to be heard by National Council had been brought for an improper purpose.

17. Mr Cameron referred to his responsibilities, under the Rules, as National Secretary.  He said that on 2 July 2002 he was informed that the interim report into the Branch had been completed.  That report dealt with many matters, the most serious of which was the allegation made against Mr Johnston.  According to Mr Cameron, this was the first time that he became aware of that allegation. 

18. Mr Cameron said that on the following day, Mr Addison handed him the document containing the charges.  He said that he believed that he was under a duty, under the Rules, to provide a copy of the charges to Mr Johnston forthwith, and that he had done so. 

19. Mr Cameron also said that he determined that a meeting of National Council should be convened as soon as practicable in order to consider the charges brought by Mr Addison.  That meeting was arranged for 9 July 2002.  Prior to that meeting being held, he sought legal advice from Jeff Shaw QC in relation to whether, having regard to the fact that Mr Johnston was facing unrelated criminal proceedings in the County Court of Victoria, the charges could proceed.  Mr Shaw advised that not only was this permissible, but they should be dealt with expeditiously.

20. Mr Cameron said that on 8 July 2002 he attended what he described as a “purported” meeting of the Victorian State Council.  The National President, Mr Roe, also attended.  Mr Cameron indicated that he did not accept that the resolutions passed at that meeting were valid.  However, there has been no challenge to the validity of those resolutions in this proceeding.

21. Mr Cameron said that in the week after the meeting of National Council on 9 July 2002 he received numerous reports of actions taken in Victoria by Ms Halfpenny who was purporting to act as State Secretary notwithstanding the resolution appointing Mr Oliver as Administrator.  He said that National Council was the body responsible for the management of the Union and he took his responsibilities to that body seriously.  He denied having ever sought to pre-empt the outcome of its deliberations.  He also denied that it acted as a “rubber stamp” for decisions taken by the National Left. 

22. Finally, Mr Cameron denied that the proposed hearing of the charges brought against Mr Johnston constituted an attempt on his part, or that of National Council, to “go after Johnston” or Mr Cameron’s other political opponents.  He explained that National Council had not considered the statutory declarations provided by Mr Johnston, at its meeting on 9 July 2002, because it was not appropriate to do so at that time.  He said that Mr Johnston would receive a fair hearing when National Council ultimately considered the charges.

23. In addition to Mr Cameron, there was evidence before me from Mr Addison.  He said that he had attempted to provide Mr Johnston with particulars of the charges which he had laid against him.  However, he had discovered that, so far as the Branch was concerned, Mr Johnston had only a post office box address.  He had telephoned Mr Johnston and asked him for his home address, but Mr Johnston had refused to provide it.  He denied that the charges were laid for an improper purpose.  He said that he believed them to be true, and that he considered it appropriate that they be dealt with by the Union, in accordance with the Rules. 

24. Mr Addison said that, contrary to Mr Johnston’s evidence, the complainant had told him on a number of occasions that she was “very uncomfortable” in Mr Johnston’s presence.  He said that the complainant had now indicated that she was prepared to give evidence against Mr Johnston before National Council.  That meant that it would be extremely difficult for her to work in close proximity with him.  He explained that he had suggested to her many times that she should report the matter to the police.  However, she had indicated that she did not wish to do so.  He referred to other evidence in support of the charges, including contemporaneous statements which she had made to others concerning the incident in question.  He also referred to an “audit trail report” which he said showed movements, on the part of Mr Johnston, in the Branch office, on the night in question.  These movements were said to be consistent with the complainant’s account of what had occurred.

25. Exhibited to Mr Addison’s affidavit was a statement on the part of the complainant, made on 15 July 2002.  In that statement she confirmed the account which she had previously given of the incident.  She was shown a transcript of an interview which Mr Riordan had conducted with her on 21 March 2002.  She confirmed that the transcript of that interview contained a truthful and accurate account of what had occurred.  She also confirmed that like statements made by her to Mr Roe, and to a Melbourne barrister, were truthful and accurate.  

26. The complainant referred specifically to the statutory declaration that she had signed on 12 July 2002, upon which Mr Johnston had relied.  She explained that when she made that declaration, she had been concerned about people learning about the incident.  She said that she had felt that she had no control over what was happening, and that she had feared that she might be subject to reprisals.  She was now prepared to give evidence before National Council.

27. There was also evidence before me from Mr Riordan.  He said that he was a former senior union official, former Commonwealth Government Minister, and former senior Deputy President of the Australian Industrial Relations Commission.  He was now an industrial relations consultant and adviser.  In December 2001, Mr Cameron had approached him, and Tom McDonald, a retired senior Union official, requesting that they conduct an independent inquiry into the operation of the Branch.  In conducting that inquiry, he had visited Melbourne on a number of occasions and had spoken to various officials.  He said that he had been advised that State Council had resolved that no member of the Branch should cooperate with his inquiry. 

28. Mr Riordan said that in the first half of March 2002, while in Melbourne, Mr Roe informed him that in late 2001, he had been approached by a female organiser within the Union, and a male colleague of hers, Mr Addison.  The female organiser alleged that Mr Johnston had raped her.  Mr Riordan said that he considered that allegation to be within his terms of reference.  He interviewed the complainant on 15 March 2002 and produced notes of that meeting.  He spoke to her again at her home some six days later, on 21 March 2002.  On that occasion the interview was tape recorded and, as noted earlier, the tape subsequently transcribed.  Later, he interviewed a number of other persons who confirmed aspects of the complainant’s account of what had occurred.  He said that, having regard to the gravity of the allegation, he considered that he had a responsibility to provide the material, and an interim report, to Mr Cameron, as a matter of urgency. 

29. Mr Roe gave evidence denying that either he or Mr Cameron controlled National Council or the National Left.  He said that there were shifting alliances within the factions.  On key decisions, it was normal for the initial position taken by Mr Cameron or himself to be modified, after discussion and debate.  He said that, in his experience, members of National Council treated all issues before them seriously, and on their merits.  He said that he was confident that Mr Johnston would be accorded a fair hearing. 

30. Mr Roe said that the Branch was divided in relation to the appointment of Mr Oliver as Administrator.  Ms Halfpenny was opposed to that appointment.  However, several other Assistant State Secretaries had indicated that they supported it.  He said that the instability within the Branch resulted from the actions of Mr Johnston and his supporters.  He denied that the charges had been brought as part of a political campaign.  He said that they arose from the obligation, under the Rules, imposed upon the Union, to deal with matters of that type.  He explained that the delay in dealing with the matter had occurred simply because the complainant had indicated that she did not want it reported to the police, or indeed, dealt with by the Union.  Not until 18 June 2002, had she finally relented, and told him that she was prepared to have the matter dealt with by National Council.  He said that she had told him repeatedly, since December 2001, that she was “very frightened” of Mr Johnston and his supporters. 

31. There was also evidence before me of the difficulties encountered by Mr Oliver in carrying out his duties as Administrator following his appointment.  He said that there had been constant conflict between himself and Ms Halfpenny.

32. In substance, this was the totality of the evidence adduced before me in support of, and in opposition to, the application for interim orders.  It was against the background of this evidence that, Mr Johnston sought an order that would prohibit publication of any evidence that would disclose the nature of the charges brought against him.  He contended that, absent such an order, any relief which he might be granted, either on an interlocutory or final basis, would be nugatory.  Publication of the evidence would cause irremediable harm to his reputation, and nothing that he might achieve by having the resolutions of National Council set aside would ameliorate that harm.

    THE SUPPRESSION ORDER

33. Section 50 of the Federal Court Act provides as follows:

    “The Court may, at any time during or after the hearing of a proceeding in the Court, make such orders forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.”

34. Mr Johnston did not, as he might have done, seek an order excluding the public, or persons specified by the Court from a hearing of the proceeding, pursuant to s 17(4) of the Federal Court Act. In other words, he did not seek an order that the Court be closed, and the proceeding be dealt with in camera, but merely that particular evidence in the proceeding not be published.

35. As indicated earlier, I rejected the submission that I should continue the order made, on an interim basis, by Marshall J which prohibited publication of the evidence in this proceeding. 

36. The fundamental rule is that proceedings take place in open court: Scott v Scott [1913] AC 417. The fact that the evidence to be led is of an unsavoury character is insufficient of itself to warrant hearing that evidence in camera. It is also insufficient to order that the publication of that evidence be suppressed. To justify an order that evidence be heard in camera:

    “... it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made” – per Viscount Haldane LC at 439. 

37. In Attorney General v Leveller Magazine Ltd [1979] AC 440, Lord Diplock observed at 449-450:

    “As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417.  If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.  The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.  As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.” 

1. The authorities establish that, since the purpose of the general rule is to serve the ends of justice, a departure from that rule may be necessary in circumstances where its application would frustrate or render impracticable the administration of justice, or damage some other public interest of such importance as to outweigh the need for open justice.  An example of such circumstances would be a voir dire hearing in a criminal trial.  So too would be the need to protect the identity of a victim in a blackmail prosecution. 

2. In E v Australian Red Cross Society (1991) 27 FCR 310 it was held that the names of various applicants who had commenced proceedings seeking damages against the Australian Red Cross Society, following blood transfusions which had caused them to become HIV positive, should not be published. There, the Court took into account the prejudice and embarrassment to the applicants, and their families, which may arise from publicity about the proceedings. The circumstances were quite extraordinary, and it is doubtful that the case supports any wider proposition than that these matters may be relevant to the exercise of the Court’s discretion.

3. Similarly, the needs of commercial secrecy in a patent dispute might require that certain evidence be given in camera, or not be published. 

4. The general rule in favour of open justice is reflected in both s 17(4) and s 50 of the Federal Court Act. That is not to say that the general rule is an absolute rule. In Versace v Monte [2001] FCA 1565, Tamberlin  J ordered that the publication of a book, and other material in respect of which confidentiality was claimed, be prohibited.  His Honour noted that the claim for confidentiality encompassed passages on more than sixty pages of the book relating to allegations concerning Gianni Versace, the Versace fashion house, and members of the Versace family.  The statements suppressed were damaging in nature, and highly prejudicial.  The principal relief sought by the applicants was the restraint of the claimed false representations relating to them, and to Gianni Versace.  If the book were made a public exhibit, the purpose of preventing dissemination of the challenged material would be frustrated because the relevant parts might be published under the privilege which attached to reports of court proceedings.  It was for that reason, and that reason alone, that his Honour suppressed publication. 

5. In the course of his reasons for judgment, Tamberlin J referred to several passages in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 per McHugh JA, and John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 141 per Kirby P and 161 per Mahoney JA. He concluded that these authorities, and others like them, establish that a court can only depart from the fundamental rule that the administration of justice takes place in open court where the observance of that rule would frustrate the administration of justice, or some other public interest for whose protection Parliament has modified that rule.

6. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the court room.  Even where an order prohibiting publication of evidence is warranted, it must do no more than is necessary to achieve the due administration of justice.  It is only where the very openness of court proceedings would destroy the attainment of justice in the particular case as, for example, by vindicating the blackmailer, that the rule may be modified.

7. In Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47, the New South Wales Court of Appeal held that there were no grounds for forbidding publication, in the usual way, of the name of a party to proceedings before the Court in respect of a solicitor defendant to private criminal contempt proceedings. Nor should that power be exercised in respect of the defendant’s partners, or employees. Kirby P, at 52-53, examined the general rule of open administration of justice and, at 54-55, derogations from that general rule. His Honour weighed the competing considerations. Importantly, he observed that there was no doubt that great harm could be done to individuals by widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings. While sensitive to the problem, “... a price must be paid for the open administration, particularly of criminal justice”. The alternative of secret trials was so unacceptable, according to his Honour, that courts of our tradition would resist it.

8. Samuels JA at 61, agreed with the reasoning of Kirby P, though his Honour went on to say that it did not matter whether the proceedings were civil or criminal.  Priestley JA at 63, agreed that there was no reason to prohibit publication of the defendant’s name.  His Honour agreed with Samuels JA that the principles operated identically in civil and criminal proceedings.

9. In Australian Broadcasting Commission v Parish (1980) 29 ALR 228, a Full Court of this Court considered the operation of s 50 of the Federal Court Act. The case concerned an agreement which was claimed to contravene the Trade Practices Act 1974 (Cth). Confidentiality was claimed in respect of certain parts of the agreement. It was held that a case had been made out for an order under s 50 because it was in the interests of the administration of justice that the proceedings before the Court not be permitted to destroy or seriously depreciate the value of confidential information in the confidential parts of the agreement. There was a public interest in preserving the privacy of confidential arrangements, so far as practicable, and in the Court doing justice between the parties. That public interest would be hampered if the very proceedings required the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings was determined. It was noted that it would not have been impractical for the public to follow the argument intelligently, and to appreciate adequately the fundamental questions involved, even in the absence of knowledge of the details of the financial arrangements in the agreement.

10. It was submitted on behalf of Mr Johnston that the decision in Parish established that s 50 did not accord precisely with the common law, and that the section provided a somewhat expanded basis for the making of suppression orders in this Court. I do not read the judgment in that way. It is true that the section requires the Court to focus upon “prejudice to the administration of justice”. I accept that that is an expression which is capable of bearing a broad interpretation. Nonetheless, I consider that the Court in Parish balanced the particular interests of the parties against the needs of open justice in a completely orthodox manner.  It concluded that, in the particular circumstances of that case, the interests of confidentiality outweighed the interests of open justice.

11. The present case is somewhat removed in its factual circumstances from either Versace or Parish.  The evidence sought to be suppressed in this case is sensitive, but not intrinsically confidential in the way that it was in Parish.  There are no trade secrets involved, no commercially sensitive information, and no confidential agreements.  Publication of the nature of the allegation made against Mr Johnston would, no doubt, be a source of serious embarrassment to him, and to his family as well.  Damage would be done to his reputation.  The charges are serious and, having regard to the position that he occupies within the Union, undoubtedly would attract widespread media interest. 

12. At the same time, the allegation made against Mr Johnston is just that, unproven and denied.  He is, of course, entitled to the presumption of innocence, unless and until the charges are proved.  When this matter commenced, the allegation had not been referred to the Victorian police for investigation.  That is no longer the position, but there is a substantial difference between a police investigation, and a decision to lay charges.  As matters stand, those charges are not supported by any evidence given by the complainant directly to this Court.  She has not sworn an affidavit regarding the incident.  Her statutory declaration, and the various statements which she has made, are not direct evidence before me.

13. The fact that Mr Johnston is entitled to be treated as innocent of these charges unless or until he is found to be guilty of them, does not mean that he is entitled to bring proceedings in this Court under a cloak of secrecy, partial or complete. 

14. It is important to note that the allegation against Mr Johnston is by now widely known, at least within the upper echelons of the Union.  It is certainly known to all of the members of the National Council.  It is also known to those members of the State Council who attended the meeting on 8 July 2002, because it was disclosed to them by Mr Johnston.  The evidence shows that the allegation was the subject of rumours within the Branch as far back as January 2002.  As noted above, it is now known to the Victorian Police, and possibly to others. 

15. Mr Johnston is a controversial figure with a high public profile.  The evidence suggests that he has enemies both within, and outside, the Union.  Even if the suppression orders made by Marshall J were continued, the proceedings before me would be held in open court.  Those proceedings are likely to be well attended.  There is little likelihood, in those circumstances, that the allegation made against him would remain secret. 

16. Unlike Versace and Parish, the relief sought by Mr Johnston, whether on an interlocutory or final basis, will not be rendered nugatory, in the event that publication of the allegation against him is not prohibited. It must be remembered that Mr Johnston, in seeking relief pursuant to s 209 of the Act, wishes to have the resolutions passed by National Council on 9 July 2002 declared invalid. He seeks to have his suspension, pending the hearing of the charges against him, lifted. He also seeks to have orders made preventing National Council from hearing those charges. Finally he seeks to have orders made setting aside those resolutions which appointed Mr Oliver as Administrator.

17. If publicity is given to the evidence concerning the charges brought against Mr Johnston, none of these objectives will, in any way, be thwarted.  In truth, his main concern, which is a legitimate concern, is his reputation.  That is an important matter and, as was decided in Red Cross Society, may properly be taken into account when considering whether or not to suppress publication.  However, it is by no means the only factor to be taken into account and must be weighed, in the exercise of discretion, against the strong countervailing interest in open justice.

18. It should also be noted that this case differs, in one important respect, from those others where suppression orders have been made. It seems to me that there is a legitimate public interest in knowing that a serious allegation of this type has been made against a senior official of a large, and powerful, Union. The members of that Union have an interest in knowing why their State Secretary has been suspended, and why an Administrator has been appointed to manage the Branch. The fact that, regrettably, there will be collateral harm to Mr Johnston before the allegation against him can be tested, is unfortunate. It does not, however, meet the test required for suppression under s 50, namely, that an order prohibiting publication of evidence is “necessary in order to prevent prejudice to the administration of justice”.

19. In Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438, Madgwick J dismissed a notice of motion seeking orders under s 50 restraining the respondents from publishing any details of the proceedings before the Court. The applicant’s main concern was said to be the damage likely to be caused to the company’s reputation, and commercial trading, if it became known to consumers that products allegedly infringing the respondents’ trademark had been found at its premises. Although the application was brought under s 50, his Honour referred to s 17, noting that it carried with it the clear implication that there is to be no restraint upon the publication of proceedings that occur in open court. He said that it was inherent in open justice that any person, including a party to the proceedings, be free to publish anything which arises from those proceedings, unless the Court was satisfied that it should exercise its discretion under s 50. He also said that the onus on the party seeking to persuade the Court to make an order under that section was “very heavy”. He agreed with Priestley JA in Raybos (supra) that a case where it would be both practical and right to make such an order would be “of the utmost rarity”. 

20. His Honour also agreed with Kirby P in John Fairfax Group (supra) at 142-143 that:

    “... an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light.  Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms.” 

21. Counsel for Mr Johnston drew my attention to several authorities involving the criminal law in which the name of an accused had been suppressed pursuant to legislation authorising that course to be adopted “in the interests of administration of justice”. 

22. In R v G (1984) 12 A Crim R 189, the Full Court of the Supreme Court of South Australia upheld a suppression order made relating to the name of an accused charged with the abduction and murder of a child in a case which attracted great publicity. It should be noted, however, that the Court regarded the provision in question as conferring the widest of discretions, and apt to enable regard to be had to “undue hardship to any person”. See also R v Hermes; Ex Parte V [1963] SASR 81 at 84.

23. Section 50, although also couched in wide terms, and incorporating the expression “the administration of justice”, focuses upon the necessity of preventing prejudice to the administration of justice.  That seems to me to carry a subtle, but nonetheless significant, difference in emphasis to the provision under consideration in the South Australian cases.  As Madgwick J observed in Computer Interchange the language of s 50 suggests that the party seeking to invoke a power of suppression carries a very heavy onus.

24. Although I reject Mr Johnston’s application to suppress publication of the evidence concerning the allegation against him, I am of the view that I should order that there be no publication of the name of the complainant, or any evidence which would tend to identify her.  I do so conscious of the fact that, in Victoria, the Judicial Proceedings Reports Act 1958 (Vic) prohibits the publication of any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed. That is so whether or not a proceeding in respect of the alleged offence is pending in a court.

25. Now that a complaint has been made to the police regarding the alleged offence, that Act will presumably operate of its own force to prevent such publication.  However, the Act may not be effective to prevent publication outside Victoria.  In a case of this type, which involves matters which are likely to attract national media interest, there is a risk that the complainant’s name would be published, or her identity revealed, outside this State if suppression were not ordered.  If a complainant were unable to give evidence in a case of this type without the risk that his or her name would be revealed outside any State which accords that identity protection, such a person might be unwilling to come forward.  That, in my opinion, would amount to “prejudice to the administration of justice”. 

    THE CLAIM FOR INTERIM ORDERS

26. The resolutions of National Council which are said to be invalid in this proceeding, are lengthy and expressed in complex terms.  Broadly, they fall into the following three categories:

    (a)the decision to suspend Mr Johnston from the various offices which he holds pending the hearing and determination of the charges brought against him;

    (b)       the decision to have those charges heard and determined by National Council; and
    (c)       the decision to appoint Mr Oliver as Administrator of the State Branch.

27. The grounds upon which those resolutions are challenged are, in substance:

    (i)the Rules do not permit the exercise of particular powers by a State Council to be overridden by a contrary decision made under the general power of National Council;

    (ii)Rule 9, which deals with meetings of National Council, requires that at least one day’s notice be given of any matter to be considered at such a meeting.  That did not occur in relation to the resolution appointing the Administrator;

    (iii)the resolution under Rule 13 sub-rule 9(c) that the charges against Mr Johnston could not be dealt with fairly by the Branch was not made properly, and in accordance with the requirements of that sub-rule.  Moreover, the decision not to remit to State Council was tainted by an ulterior purpose, namely the intent of a majority of National Council members to remove Mr Johnston, and make “consequential” directions giving National Council power to control the workings of the Branch;

    (iv)the decision to proceed with the hearing and determination of the charges was an abuse of process because it exposed Mr Johnston to oppressive and vexatious processes;

    (v)the decision, pursuant to Rule 13 sub-rule 14, to direct Mr Johnston not to perform any of the duties of the offices which he holds, and to prohibit him from attending any meetings of the Union, or Union offices, was beyond power, and actuated by reference to extraneous considerations.  It was also so “disproportionate” as to indicate that irrelevant considerations had been taken into account in the exercise of the discretion;

    (vi)Mr Cameron and Mr Roe were actually biased.  They should not have participated in the meeting of National Council, and their presence vitiated both the meeting and the resolutions;

    (vii)the decision to appoint Mr Oliver as Administrator was ultra vires.  Even if it were open to National Council to suspend Mr Johnston, the power to replace him lay with State Council, pursuant to Rule 4 sub-rule 12(ac).  State Council had determined on 8 July 2002 that, in the absence of Mr Johnston, his position would be filled by Assistant Secretary, Ms Halfpenny.  National Council could not override that decision.

28. There were other complaints regarding the validity of the resolutions.  The no-contact resolution was said to be ultra vires.  The resolution requiring the charges to be heard in Sydney, rather than in Melbourne, was said to involve a denial of procedural fairness.  The requirement that Mr Johnston provide advance notice of the evidence upon which he would seek to rely in an answer to the charges was also said to breach the rules of natural justice. 

29. Further, it was contended that the procedure to be followed at the hearing before National Council, by which members of that body would both give evidence, and participate in its deliberations, was highly irregular. 

30. A number of these matters were the subject of written submissions, but were not developed in oral argument.  For reasons which will become apparent, and turn upon the fact that National Council will now no longer be hearing the charges against Mr Johnston on 12 to 14 August 2002, as originally planned, many of them are no longer relevant, at least, so far as the application for interim orders is concerned.

    PRINCIPLES GOVERNING INTERIM ORDERS

1. I propose to deal with the grounds upon which Mr Johnston relied basically in the order set out above. However, before doing so, it is necessary to say something about the principles which govern the grant of interim orders under s 209(4) of the Act. That sub-section provides as follows:

   “(4)     At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.”

2. There is authority for the proposition that the usual test for interlocutory injunctions, namely, that there be a serious question to be tried, and that the balance of convenience favour the grant of such an injunction, may not be applicable under s 209: McGee v Sanders (No 2) (1991) 32 FCR 397 at 402-403 and Adlam v Noack (1998) 90 IR 31 at 34-35.

3. In the former case, Gray J concluded that s 209(4) required the Court to do justice as best it can when confronted by an application for interim orders. In the latter case, von Doussa J observed that one of the primary considerations in determining whether or not to make interim orders “must be the efficient and effective working of the Union pending the final resolution of the proceedings”.

4. There seems to me to be little difference, in practical application, between the usual test for interlocutory injunctions, and the test propounded for use under s 209. For the sake of convenience I propose to adopt the traditional language associated with the usual test, though bearing in mind the need to apply that test with some flexibility.

   THE STRUCTURE AND CONTENT OF THE RULES

5. Before turning to the specific grounds which are said to warrant the making of interim orders, it is necessary to consider the structure, and content, of the Rules.  The first point to note is that they are detailed in the extreme, running for some 213 pages.  Plainly, they are intended to operate as a complete code governing the conduct of the Union’s affairs.  The second point to note is that, although the Rules are consensual, they also have statutory force.

6. Rule 4 deals with elections and voting.  It recognises inter alia the offices of National President, National Secretary, Assistant National Secretary, State President, State Secretary, and Assistant State Secretary.  It requires each State Returning Officer, once every four years, to conduct an election for each of the State Offices. 

7. Rule 4 sub-rule 12(ac) provides that where a vacancy occurs in any of these offices, the Returning Officer shall, in conformity with the Rules, as soon as practical, conduct an election to fill that vacancy.  Pending the declaration of the result of that election, National Council may, in respect of National offices, or State Council may, in respect of State offices, appoint to the office a member of the Union eligible for election to the office for a period not exceeding 12 months.  Curiously, the Rules make no provision for filling an office in circumstances where the holder is suspended, but no vacancy has been created. 

8. Rule 8 sets out the powers of National Council.  It provides in sub-rule 1 that National Council shall be the Committee of Management of the Union and, subject to National Conference, and the Rules, have the care, control, superintendence, and management in all respects of the affairs, business, funds, and property of the Union. 

9. Rule 9 deals with meetings of National Council.  It provides that such meetings are to be held half yearly at the office of National Council, unless otherwise decided.  A meeting shall also be held when deemed necessary by the National President and National Secretary.  Notice of meetings is to be given by letter or telegram (presumably email or facsimile would suffice).  At meetings of National Council all National full time officials and State representatives are entitled to one vote and any decision is reached by majority. 

10. 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)

11. 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. 

12. 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. 

13. 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. 

14. 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”.

15. 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)

16. Counsel for Mr Johnston submitted that the powers of National Council contained in Rule 8 were expressed to be subject to the Rules.  As a consequence, specific provisions conferring particular powers upon State Council could not be overridden by a contrary decision made under the more general powers conferred on National Council. 

17. In support of that submission, Counsel relied upon Johnston v Cameron [2002] FCA 634, a decision of Marshall J. In that case, which involved the same parties as the present case, a rule to show cause called upon Mr Cameron to show cause why the Court should not order that a resolution of National Council appointing delegates to the State Conference of the Australian Labour Party should be set aside. At issue was whether National Council had power to appoint such delegates under its general power to manage the organisation in a situation where State Council had not appointed its full complement of delegates. His Honour referred to Rules 5 and 6 which entrusted National Conference with the “supreme governance” of the Union. He noted that the general management powers contained in Rule 8 were expressed to be subject to the Rules. He observed at paragraph 30:

    “State Council is not compelled to make such appointments but when it does, the specific provision contained in Rule 22.2 suggests that its decision as to choice of delegates can not be overridden by a contrary decision made by National Council concerning the identity of the delegates.  In circumstances where the State Council has opted not to appoint delegates . . . nothing in the Rules prevents the National Council from filling the void.”

18. I do not doubt the correctness of his Honour’s analysis.  It seems to me, however, that the observation set out above has no bearing upon the issue before the Court in the present case.  There is no doubt that there is power under the Rules to charge Mr Johnston, to determine to hear the charges, and to suspend him from the national offices which he holds, of which there seem to be at least two.  It would be absurd to think that neither the National Conference, which is the supreme governing body of the Union, nor National Council, could exercise a power to suspend a national official in circumstances warranting that course.  Rule 13 sub-rule 14 now makes it clear that there is such a power. 

19. It seems to me that the general powers of National Council are not circumscribed by the particular powers of State Council unless the matter under consideration is one expressly reserved, by the Rules, to State Council.  That was the position before Marshall J in relation to the identity of delegates to the State Conference of the Australian Labor Party.  It is not the position regarding charges laid against National and State Officials pursuant to Rule 8. 

20. Moreover, it seems to me that there is a real doubt as to whether State Council is capable of dealing with the charges against Mr Johnston at all.  Rule 13 sub-rule 9 suggests that State Council does not have that power given that he is a State Official who holds office not merely in Victoria, or representing Victoria, but also as a member of the National Administrative Committee.  That seems to me to make him a National Official as well. 

21. In any event it is open to National Council to remove a case from State Council if it considers, bona fide, that the charge cannot be dealt with fairly by that State.  In short, Mr Johnston has not, in my view, demonstrated that there is a serious question to be tried, or at least a proper case, for the making of the interim orders which he seeks, upon this ground.  

    GROUND (II)

22. Rule 9 provides that when the business of National Council is transacted by telephonic hook-up the “matter or matters to be considered” shall be communicated to all Councillors at least on the day prior to the hook-up taking place.  It is clear that some of the resolutions proposed for consideration by National Council were communicated to Councillors no more than 20 minutes prior to the commencement of the meeting at 10am, on 9 July 2002.  There is a facsimile cover sheet showing that these resolutions were communicated at 9.40am that day.  Other matters, including Mr Johnston’s response to the charges, and the statutory declarations attached to his letter to Mr Cameron, were not communicated to some Councillors until after the meeting had commenced. 

23. Counsel for Mr Johnston submitted that the requirement of a day’s notice of the matter or matters for consideration required, at the least, notice of all proposed resolutions.  It will be recalled that the resolutions which noted that charges under rule 13 had been lodged by Mr Addison, and that copies had been provided to Mr Johnston, and which noted various other matters including “the notorious evidence of the polarization of factions within the Victorian Branch” and “the consequent difficulty for organs of the Union in Victoria to bring a dispassionate, open mind to the hearing of the charges” had been provided to Councillors on 5 July 2002.  So too had a proposed resolution that Mr Johnston be suspended until 14 August 2002, or until the decision of National Council in relation to the charge, whichever was the earlier.  Notice had also been given of a resolution directing that he not attend any meeting of the Union, or any office of the Union.  These matters, together with an outline of procedures to be adopted in respect of the charges, were all communicated in accordance with the notice requirements of the Rule. 

24. The resolutions which were only communicated some twenty minutes prior to the commencement of the meeting related essentially to the arrangements which would apply during the period of Mr Johnston’s suspension.  Those arrangements included the appointment of Mr Oliver as Administrator, the powers which were vested in him and the duties that he was required to perform.  They also included the responsibility of Branch Officials and employees to comply with his directions, and the obligation of State Council not to make any decision which altered, affected, or contradicted any aspect of the decisions of National Council, or which purported to appoint a State Secretary or Acting State Secretary pursuant to Rule 4 sub-rule 12(ac).  Finally, they included the obligation of Branch officials not to overturn or contradict or affect a decision of the Administrator concerning the management of the staff, officers, or officials of the Branch, or the allocation of their work, unless the matter was first referred to National Council for its consideration. 

25. In addition, the Administrator was required to provide an urgent report to National Council and to State Council on the steps necessary to “stabilise the branch and maximise its effectiveness” pending which the status quo with respect to staff officers and officials was to be maintained.  Any purported decision taken by State Council contrary to this resolution was said to be void. 

26. There were also a resolution that dealt with the position formerly occupied by Mr Oliver, enabling his duties to be carried out by others, and a resolution holding that the meeting of the Victorian State Council on 8 July 2002, and the resolutions passed at that meeting, were null and void. 

27. It is unnecessary for present purposes to go any further into the details of these new resolutions.  It is clear that they were of great importance so far as the management of the Branch was concerned.  It is by no means correct to say, as Mr Rothman, SC, counsel for the respondents did, that their effect was simply to install Mr Oliver as State Secretary in place of Mr Johnston for a period of a few weeks.  

28. The resolutions concerning Mr Oliver altered quite fundamentally the relationship between State Conference and State Council, on the one hand, and the person performing the duties of State Secretary, on the other.  They required that State Council not make any decision which was in conflict with a decision by Mr Oliver concerning the management of the staff, officers, or officials of the Branch, or the allocation of their work, unless the matter had first been referred to National Council for its consideration.  That was not the framework within which the Branch had hitherto operated.  If a change to the structure and operations of the Union, as radical as this, were to be made by National Council, it had to be made by a meeting lawfully constituted, in accordance with the Rules.  That meant a meeting in which members had been given notice of the matter or matters to be considered, in accordance with the requirements of Rule 9 sub-rule 5. 

29. In my view, the purpose of the sub-rule is clear.  It is to ensure that when a meeting of National Council is to be conducted by telephonic hook-up, with all the technical and other difficulties associated with that process, matters of importance which are to be considered are communicated to members in a timely manner, which the Rules stipulate as being at least on the day prior to the hearing.  That is to ensure that members are given a reasonable opportunity to consider the matters which are to be discussed at the meeting and, if necessary, to seek the views of others about them.  It is to ensure that members are not pressured into making hasty and uninformed decisions. 

30. It may be, though I need not decide this question, that relatively minor and non-controversial matters can be dealt with by National Council without having been communicated in accordance with the time specified in sub-rule 5.  It is possible to construe the requirements of that sub-rule as necessitating substantial compliance only, in accordance with the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389. That case held that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is to be so regarded depends upon whether there can be discerned a legislative purpose to invalidate an act that fails to comply with the condition. Analogous principles may be said to apply to the Rules which, as I have stated, have a statutory basis under the Act.

31. Mr Rothman submitted that there had been no instances in recent years where a failure to comply with notice requirements had led to any decision taken by an executive body of a union being set aside.  That struck me, at the time, as a bold submission.  It seems to me, also, to be incorrect. In Hansch v Transport Workers’ Union of Australia [1998] 14 FCA (25 May 1998), Ryan J dealt with an application under s 209 of the Act in which it was claimed inter alia that a notice which appeared in several regional Tasmanian newspapers did not comply with the requirements of the rules of the particular union.  That notice merely advised that there would be a special general meeting of members enrolled in the Tasmanian branch.  It did not say what the business of the meeting would be. 

32. His Honour held that a special general meeting was a meeting convened to deal with a special topic or matter.  In order to be effective the notice had to indicate, at least in some general way, what the topic or matter was.  The common law had long required a notice of a meeting to state not only the date, time and place of a meeting but also the business to be discussed: Campbell v Higgins (1957) 3 FLR 317. The reasons why such notice should be given were said to be so obvious as not to need specification.

33. In Ephstathis v The Greek Orthodox Community of St George (1998) 13 ACLR 691 it was said, at 693, that where notice is given that particular business will be transacted at a meeting, no other business can be embarked upon unless the whole body corporate is present and consents. The rationale of the rule is to enable persons receiving the notice to know what is proposed to be done at the meeting. That is so that they can make up their minds whether or not they should attend. Moreover, those who do attend should have a reasonable opportunity in advance to know what they are to deal with, and consider how they should deal with it.

34. In Hansch Ryan J concluded that the failure to provide adequate information in the notice resulted in the meeting not having been properly convened.  Consequently, he held that all decisions, taken at the meeting, were void and of no effect.  The defects in the notice were not cured by showing that Mr Hansch was, at all relevant times, aware of the allegations of misconduct against him.  Moreover, his failure to complain of a lack of reasonable notice did not amount to a waiver. 

35. With respect, I agree with his Honour’s reasoning in Hansch.  The matters which were the subject of only 20 minutes notice, in the present case, were of fundamental importance to the Union and to the Branch.  They were complex.  It would take some time to consider and comprehend them.  The members of National Council were denied that time.  I am unable to accept Mr Rothman’s submission that they were essentially matters of detail which had been adequately flagged in the earlier correspondence sent by Mr Cameron.

1. In my view, Mr Johnston has established that there is a serious question to be tried regarding this issue.  Mr Rothman submitted even if that were so, the ground now raised was not addressed in Mr Johnston’s affidavit in support of the rule to show cause, in contravention o 48 r 7 of the Federal Court Rules.  The Court can dispense with that requirement.  Mr Rothman was not prejudiced in having to deal with the point in argument which, I was frankly told, had only occurred to counsel for Mr Johnston shortly before he commenced his submissions.  The point was developed in his written submissions, and it turns largely upon matters of construction.  A legal point which has merit should not be discarded for reasons which go to form, rather than substance. 

2. A finding that the respondents and, in particular, Mr Cameron, failed to comply with Rule 9 sub-rule 5 is plainly capable of vitiating those resolutions which related to the appointment of Mr Oliver as Administrator.  These are important matters, and I propose to deal with them on that basis.

   GROUND (III)

3. Counsel for Mr Johnston submitted that the decision by National Counsel that the charges against Mr Johnston could not be dealt with fairly by the State Branch, and should be dealt with by National Council, should be vitiated.  They submitted that none of the matters taken into account in arriving at that conclusion could possibly support that view.  Moreover, they submitted that the decision was actuated by improper and extraneous considerations.

4. In my opinion there is no substance in this point.  The members of National Council must be taken to have been aware of the situation in Victoria, and in particular the dominance of Mr Johnston’s faction on State Council.  They were made aware of the resolutions passed by State Counsel on the preceding day.  Mr Addison requested that State Council not hear the charges, as he was entitled under the Rules to do.  It is not necessary, in order to arrive at a finding that a charge cannot be “fairly dealt with by a State”, that it be shown that there is actual bias among a majority of the members of State Council in favour of, or indeed against, the person charged.  However, the resolutions passed by State Council on 8 July 2002 were couched in strong terms and certainly provided a basis upon which National Council could arrive at that conclusion. 

5. Moreover, as I have already indicated, there is a real doubt in my mind as to whether, under the Rules, State Council could deal with the charges.  Mr Johnston holds office not just in Victoria or representing that State, but also National Office.  He is a member of the National Administrative Committee, and seems to hold that position in his own right.  He is also a delegate to National Conference and a member of National Council, although he might be said to represent Victoria in those capacities.

6. I should add that I am not persuaded that there is a serious question to be tried regarding the allegation that the decision that the charges be heard by National Council rather than State Council was actuated by improper or extraneous purposes.  If I am right in thinking that State Council cannot deal with these charges because Mr Johnston holds National Office, there is simply no choice as to which body should hear them.  If I am wrong about that conclusion, there is still a paucity of evidence to suggest that the decision of National Council not to refer the matter to State Council was actuated by considerations other than the inability of State Council, in the present circumstances, to ensure that Mr Addison’s charges were considered fairly and on their merits.

7. In short, I am not satisfied that there is a serious question to be tried on this ground. 

   GROUND (IV)

8. This ground complains of an abuse of process on the part of the National Council in resolving to deal with the charges brought against Mr Johnston, in circumstances where he may ultimately be charged with criminal offences, and prejudiced in his defence to those charges. 

9. The ground is entirely devoid of merit.  It is now trite law that even where criminal charges have been brought, and there are concurrent civil proceedings on foot, there is no automatic right on the part of a defendant to have civil proceedings stayed pending the resolution of those charges: McMahon v Gould (1982) 1 ACLC 98; Cameron’s Unit Services Pty Ltd v Whelpton & Associates Pty Ltd (1984) 59 ALR 754 and Philippine Airlines v Goldair (Aust) Pty Ltd [1990] VR 385. The position of a defendant who has not yet been charged with any criminal offence cannot be stronger than that of a defendant who has been so charged.

   GROUND (V)

10. This ground complains of those resolutions passed by National Council on 9 July 2002 which directed that Mr Johnston be suspended from his duties as State Secretary, and that he not attend any meeting of the Union, or its offices, pending the hearing and determination of the charges against him. 

11. The ground turns largely upon the decision of von Doussa J in Adlam v Noack (1998) 90 IR 31. In that case, the applicant sought interim relief under s 209(4) of the Act. She was an elected official of the Australian Manufacturing Workers Union (“the AMWU”), and an Assistant Secretary of the South Australian Branch. The first respondent, Mr Noack, was the State Secretary and the second respondent, Mr Cameron, was the National Secretary.

12. In her affidavits in support of her application, she alleged that for several years Mr Noack and “several associates” had conducted an aggressive campaign of harassment against her.  She and Mr Noack were members of opposing factions.  They had at one time had a personal relationship which had since soured.  She claimed that Mr Noack had indecently assaulted her at the office of the AMWU.  Mr Cameron laid a charge against Mr Noack requiring him to appear before the State Council to defend himself against allegations of gross misbehaviour, one of which related to the incident involving the indecent assault.  Mr Noack denied the charges. 

13. In his reasons for judgment on the application for interim orders, von Doussa J noted that although serious allegations had been made by the applicant which, if true, impacted on the day to day operations of the Union in South Australia, it was necessary when considering what interim orders should be made to recognise that Mr Noack held “elected office in the Union” and pursuant to its Rules had certain obligations to perform. It was contended on Mr Noack’s behalf that the orders sought, both interim and final, would prevent him fulfilling his duties. The role of the Court under s 209 was said to be to ensure the proper performance of the Rules, and not to prevent their performance. Accordingly, it was argued, on his behalf, that it was not open to the Court to make the orders sought.

14. His Honour found that there were serious questions arising from the allegations made by the applicant, sufficient to make it appropriate for the Court to act by making interim orders.  The balance of convenience justified the making of some orders restraining Mr Noack from harassing the applicant in the meantime.  It was implicit in the Rules that an elected official would be permitted to perform the duties and functions of their office without harassment.  An order restricting communication between Mr Noack and the applicant could be legitimately made for the due observance and performance of the Rules.  However, an order which had the effect of preventing him from carrying out all, or even a major part of his duties might, in substance, amount to a removal from office, and be disproportionate to the needs of interim relief. 

15. His Honour concluded that although there might be a case for suspending Mr Noack from office pending the hearing and determination of the charges laid against him, the Rules, as they then stood, made no express provision for the suspension of an officer charged with a breach of those Rules.  It should be noted that Rule 13 sub-rule 14 was introduced after Adlam was decided.  As indicated earlier, that sub-rule confers power upon National Council, in the case of a charge to be heard by it, to suspend an official pending the hearing of that charge.

16. In my opinion, there was nothing remotely disproportionate, or unreasonable, about the decision of National Council to suspend Mr Johnston from his duties as State Secretary for the short period pending the hearing and determination of the charges brought against him.  The allegation is of such seriousness that it would be an affront to common sense to think that he should continue to perform those duties, necessitating as they do some contact with the complainant, pending the hearing and determination of the charges.  It may be true that the complainant has continued to work with Mr Johnston for the past eight months.  However, matters have now changed.  She has now indicated a willingness to give evidence against him before National Council.  Her position would be invidious, to say the least, if she were required to continue to work with Mr Johnston in the near future. 

17. Mr Johnston proffered undertakings to the Court to the effect that he would not contact the complainant if the interim orders which he sought were granted.  I am not satisfied that those undertakings would meet the needs of this case.  As I understand the position, Mr Johnston remains on full pay.  He is directed not to perform the duties of his office, or to attend meetings of the Union, or its offices.  Originally, those directions would have bound him only until the Special Meeting of National Council on 12 to 14 August 2002.  If that body found the charges proved, he would undoubtedly expect to be removed from office.  If, on the other hand, the charges were not sustained, he would undoubtedly have an entitlement to be reinstated. 

18. The position has changed in several important respects since this case was commenced before me.  I was informed that the Union has now referred the allegation to the police.  It is no longer proposed that National Council hear the charges, as previously scheduled.  I have no idea how long the police investigation will take.  It may be that it will not take very long at all.  If no criminal charges are laid against Mr Johnston, after the investigation has been completed, there seems to be no reason why he should not be reinstated as State Secretary.  That is, of course, unless National Council resolves to hear the matter, in any event.  If criminal charges are laid against Mr Johnston, it would not only be open to National Council to continue his suspension until those charges had been determined, but likely that that would occur. 

19. In short, I regard the present case as being readily distinguishable from the decision in Adlam.  The allegation against Mr Johnston is far more serious than that made against Mr Noack.  It is so grave that it justifies National Council in taking the view that until the matter has been appropriately investigated, Mr Johnston should be suspended and refrain from attending Union meetings, or the offices of the Union.

20. I am not persuaded that there is a serious question to be tried in relation to this ground.

    GROUND (VI)

21. This ground complains that, Mr Cameron and Mr Roe were actually biased against Mr Johnston and that therefore their involvement in the meeting of National Council on 9 July 2002 rendered the resolutions passed by that meeting invalid. 

22. It is clear that a domestic body, such as National Council, is not subject to the rules which govern procedural fairness before statutory tribunals.  In Cains v Jenkins (1979) 42 FLR 188, a Full Court of this Court observed that the rules requiring adherence to the principles of natural justice by tribunals operated differently depending on whether the tribunal hearing the charges is statutory or consensual in origin. A more stringent test is applied to the former than the latter. To the statutory tribunal the law applies a test based on the appearance of fairness. A reasonable suspension of unfairness generated in an assumed informed observer is sufficient to nullify the proceedings. In the case of the consensual tribunal the reality is considered. The question is whether in all the circumstances natural justice was done.

23. The leading statement of principle regarding this distinction is that of Dixon J in Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601. In that case it was held that in the context of a domestic forum acting under rules resting upon a consensual basis, the fact that particular members of the Executive Council of the union had both been involved in the matters giving rise to the charges, and adjudicated upon them, did not mean that natural justice had been denied. Domestic tribunals were said to be often constituted by persons who may, or even must, have taken some part in the matters concerning which they are called upon to exercise their quasi-judicial function. However, a particular member of that Council was in a different position. A Mr Dougherty had promoted the charge, and supported it as the prosecutor. He was therefore “invincibly biased” against the accused as a result of his participation in the controversy. Dixon J noted that if a person disqualified by such considerations sits with the tribunal, and takes part in the decision, that is enough to vitiate it.

24. The term “invincibly biased” was said by Sweeney and St John JJ, in Cains, at 195, to mean a bias that is incapable of being remedied by reason or argument during the period up to the making of the tribunal decision. Their Honours noted that in many cases such bias can be inferred from previous conduct, or a history of the relationship between the parties. Keely J at 201, made it clear that nothing short of actual bias on the part of person sitting on a domestic tribunal would be sufficient to establish a denial of natural justice. To the same effect are Joyce v Christoffersen (1990) 26 FCR 261 at 262, per Gray J; Whittle v The Australian Miniature Pony Society Incorporated (1995) 57 FCR 252 at 268-270, per Burchett J; Dodd v Johnston (1999) 91 IR 352, per Marshall J; Adlam v Bauer (1999) 93 IR 114, per Marshall J; and Haritou v Skourdoumbis [2002] FCA 116 at para 13, per Finkelstein J.

25. The National Council is, for relevant purposes, a domestic tribunal.  It is consensually based.  It follows that what must be established, as counsel for Mr Johnston recognised, is that there is a serious question to be tried that Mr Cameron or Mr Roe were “actually biased” in the sense described above. 

26. It must be remembered that National Counsel was not adjudicating upon the guilt or innocence of Mr Johnston when it met on 9 July 2002.  It was determining only whether he should be suspended from his duties pending a hearing or determination of the charges, whether State Council could conduct such a hearing fairly, and what administrative steps should be put in place, with regard to the Branch, if he were suspended.  It is in relation to those matters that actual bias must be demonstrated. 

27. A conclusion that a decision maker was actually biased is not lightly to be drawn: see Jia v Minister for Immigration and Multicultural Affairs (2001) 178 ALR 421. That is all the more so when the person accused of actual bias has sworn an affidavit denying the allegation, and has not been cross-examined on that affidavit. It is true that actual bias may be subconscious, and that a denial of such bias, even if accepted as truthful, may not be conclusive. Nonetheless, there are powerful considerations suggesting that, so far as Mr Cameron is concerned, notwithstanding his long standing factional and personal hostility to Mr Johnston, his is a case which does not rise above apprehended bias.

28. Mr Roe is said to be in a somewhat a different situation.  It will be recalled that he assisted the complainant by negotiating the terms under which she would be prepared to give evidence to the National Council.  He is said, by Mr Johnston, to have been the source of the rumours regarding the incident as far back as January 2002.  He is claimed to be in a position analogous to that of Mr Dougherty in Bowen, that is, a “promoter” of the charges.

29. I consider that there is a serious question to be tried regarding Mr Roe’s involvement in the decisions taken by National Council on 9 July 2002.  It would have been preferable had he not participated in its deliberations on that day.  There is evidence that he offered what might be regarded as “concessions” to the complainant in order to persuade her, as he ultimately did, to give evidence before National Council.  Whether that makes him relevantly a “promoter” of the charges may be the subject of debate, but it certainly puts him in a position not far removed from such a person. 

30. Nonetheless, Mr Roe gave evidence before me that he had not prejudged the allegation against Mr Johnston, and that he had given proper attention to the various matters to be considered when National Council met.  The strength of Mr Johnston’s case for interim orders is important in determining whether those orders will be made.  In my opinion, his case on this ground is not nearly as strong as is his case on the notice ground. It follows that there would need to be a correspondingly stronger case on balance of convenience to warrant granting the interim orders sought on this ground: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464

31. I am of course conscious of the fact that the presence of a single person suffering from bias at the deliberations of a tribunal is sufficient to invalidate the resulting decision: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and Joyce v Christoffersen (1990) 26 FCR 261 at 292.

32. I should also indicate that I do not regard the fact that Mr Johnston did not ask Mr Cameron or Mr Roe to disqualify themselves from participating in the meeting of National Council on 9 July 2002 as amounting to any sort of waiver. 

    GROUND (VII)

33. The basis of this ground is that the decision by National Council to appoint Mr Oliver as Administrator was ultra vires.  It argues that even if it were open to suspend Mr Johnston, the power to replace him, under the Rules, lay with State Council.  It relies upon rule 4 sub-rule 12(ac) for that proposition.  Moreover, this ground notes that State Council determined, on 8 July 2002, that in the absence of Mr Johnston, his position would be filled by one of the Assistant Secretaries, namely Ms Halfpenny.  It is contended that National Council had no power to override that decision.

34. Rule 4 sub-rule 12(ac) provides that when a vacancy occurs in the offices of National President, National Secretary, Assistant National Secretary, National Organiser, State Secretary, State President, Assistant State Secretary and State Organiser, otherwise than at the expiration of the term of office of the person elected thereto, the Returning Officer shall, as soon as practicable, conduct an election in accordance with the rules for the office.  The sub-rule further provides that, pending the declaration of the result of the election, the National Council may, in respect of National offices, or the State Council may, in respect of State offices, appoint to the office a member of the Union eligible for election to the office for a period not exceeding 12 months. 

35. The term “vacancy” is not defined in the Rules.  Rule 13 sub-rule 14, which permits National Council to direct an official not to carry out some or all of the duties attaching to his or her office pending the hearing of any charge against that official does not, in my view, create a vacancy in the sense required for the purpose of triggering the operation of Rule 4 sub-rule 12(ac).  Nonetheless, it was contended on behalf of Mr Johnston that the Rules, read as a whole, made it clear that National Council is responsible for the control and supervision of the work of National officers of the Union, while at the Branch level the supervision and direction of the work of all full-time State officers, is the responsibility of State Council:  see Rule 26 sub-rules 2 and 4.  In addition, Rule 4 makes provision for the election of National officers on the one hand, and State officers on the other.  Rule 13 defines State official in sub-rule 13(2).  In the case of the Branch, all of the officials included in this definition are elected by and from the Branch membership:  see Rule 24 sub-rule 2(f) and Rule 25 sub-rule 3. 

1. It was submitted on behalf of Mr Johnston that the judgment of Marshall J in Johnston v Cameron [2002] FCA 634 supported the proposition that it was State Council, and not National Council, that could appoint a person to act as State Secretary, in circumstances where an official holding that position, was suspended. I reject that submission. If the decision to suspend Mr Johnston created a vacancy within the meaning of Rule 4 sub-rule 12(ac), his Honour’s analysis would indeed provide support for that proposition. However, in circumstances where the Rules are silent as to what is to occur when a State Secretary is suspended, nothing should derogate from the general powers of management conferred, under Rule 8, on National Council,.

   BALANCE OF CONVENIENCE

2. It can be seen that I have concluded that there are two grounds which raise a serious question to be tried regarding the validity of the resolutions passed by National Council on 9 July 2002.  The first is what may be described as the notice ground.  The second is what may be described as the actual bias ground, but only insofar as it applies to Mr Roe.  As I have already indicated, the notice ground is much stronger, in my view, than the actual bias ground. 

3. Both Gray J in McGee (supra) and Marshall J in Nicholson v Pitt (unreported, Industrial Relations Court of Australia, 15 November 1995) accepted the proposition that a court will naturally be more ready to make orders on an interim basis in circumstances where the evidence proffered by the applicant demonstrates a strong case. Marshall J may even have gone further in suggesting that once an arguable case has been demonstrated, interim relief should be granted “if the justice of the situation requires it as the fairest and most convenient interim arrangement pending the trial”.

4. It is clearly inappropriate for me to express a view, at this stage, as to whether Mr Johnston’s case will succeed at trial.  Although the notice ground seems cogent, it is possible that evidence will be adduced which casts that matter in a somewhat different light.  Nonetheless, the notice ground is so strong, in my view, that little is required to demonstrate that the balance of convenience favours restoring the status quo until the trial of the matter, or further order, at least as regards those resolutions carried by National Council which were not the subject of notice in accordance with the Rules.  In other words, that would be the “fairest and most convenient” interim arrangement pending trial. 

5. I am fortified in that view by the consideration that the members of the Branch are entitled, prima facie, to have acting as their State Secretary a person of their choosing, duly elected, or in circumstances where that person has been suspended, a person of similar political persuasion.  If National Council, exercising the rights which it has under the Rules to manage the Union as a whole, determines to appoint an Administrator to act temporarily as State Secretary, it may do so, but only in compliance with the Rules.  That includes compliance with the requirements of Rule 9 sub-rule 5 as to notice. 

6. In arriving at this conclusion, I do not have regard to the evidence before the Court that the replacement of Mr Johnston by Mr Oliver has destabilised the Branch.  Whatever discord, or even violence, may have occurred since Mr Oliver was appointed, cannot influence the Court in arriving at its conclusion as to where the balance of convenience lies.  To permit such evidence to be taken into account, for that purpose, would allow the Court to be influenced by conduct in terrorem. 

7. The allegation against Mr Johnston is now in the hands of the police.  The investigation into that allegation will take some time, but should not involve any lengthy delay.  If the Branch is temporarily managed in accordance with the resolutions of State Council passed on 8 July 2002 which, I repeat, have not been challenged in the proceeding before me, at least pending clarification of Mr Johnston’s situation, no great harm is likely to occur.  On the other hand, interim orders giving rise to that result will ensure continuity with the status quo.  Such continuity should not be disturbed except by a resolution of National Council carried strictly in accordance with the Rules. 

8. When it comes to dealing with the actual bias ground, the argument relating to balance of convenience which must be considered is not the same as that applicable to the notice ground.  Mr Johnston seeks interim orders effectively restoring him to the position of State Secretary pending the final hearing of this matter.  His case on actual bias is, as I have indicated, not nearly as strong as is his case on lack of notice.  Yet the actual bias ground, if made out, would lead to the nullification of all of the resolutions passed on 9 July 2002, and not merely those for which inadequate notice was given. 

9. On an interim basis, that would mean that although the allegation made against Mr Johnston is presently the subject of a police investigation, and may still ultimately be dealt with by National Council, he should be reinstated as State Secretary pending the hearing of this proceeding.  In my opinion, neither the balance of convenience, nor the interests of justice, require the adoption of that course.  The decision taken by National Council to suspend Mr Johnston was so clearly appropriate, having regard to the gravity of the charges brought against him, that it would take a powerful case in support of an allegation of procedural unfairness to warrant the making of the interim orders sought.  No such case has been demonstrated. 

10. In my view the appropriate course is to grant a limited measure of the interim relief sought by Mr Johnston.  The respondents should be restrained from acting upon the basis of those resolutions passed at the meeting of 9 July 2002 which were not the subject of notice in accordance with Rule 9 sub-rule 5.  The application for interim orders should otherwise be dismissed.

I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             30 July 2002

Counsel for the Applicant:	Mr M Bromberg, Mr P Rozen and Mr M Belmar
Solicitors for the Applicant:	Stary Mayall
Counsel for the First to Sixth, Tenth to Twelfth, Fifteenth to Seventeenth, Twentieth to Twenty-first Respondents:	Mr S Rothman SC
Solicitors for the First to Sixth, Tenth to Twelfth, Fifteenth to Seventeenth, Twentieth to Twenty-first Respondents:	Taylor & Scott
Counsel for the Twenty-third Respondent:	Mr RM Niall
Solicitors for the Twenty-third Respondent:	Holding Redlich
Counsel for The Age and Herald Sun Newspapers:	Mr DP Gilbertson
Solicitors for The Age and Herald Sun Newspapers:	Minter Ellison
Dates of Hearing:	22, 23 and 24 July 2002
Date of Judgment:	30 July 2002

SCHEDULE OF RESPONDENTS

Julius ROE	Second Respondent
Jennifer DOWELL	Third Respondents
Ian JONES	Fourth Respondent
Mike NICOLAIDES	Fifth Respondent
Dave OLIVER	Sixth Respondent
S WALSH	Seventh Respondent
A PERKINS	Eighth Respondent
A DONNELLAN	Ninth Respondent
P JOHNSTON	Tenth Respondent
D SMITH	Eleventh Respondent
Dave HARRISON	Twelfth Respondents
P LEES	Thirteenth Respondent
G WILSON	Fourteenth Respondent
Paul BASTIAN	Fifteenth Respondent
G HINGLE	Sixteenth Respondent
John PARKIN	Seventh Respondent
J REID	Eighteenth Respondent
P WISNIEWSKI	Nineteenth Respondent
Jim WATSON	Twentieth Respondent
Jock FERGUSON	Twenty-first Respondent
D SARGENT	Twenty-second Respondent
M ADDISON	Twenty-third Respondent