Johnston v Cameron

Case [2002] FCA 634

FEDERAL COURT OF AUSTRALIA

Johnston v Cameron [2002] FCA 634

INDUSTRIAL LAW – rule to show cause calling upon the first and second respondents to show cause why the Court should not order that resolution of National Council appointing delegates to the State Conference of the Australian Labor Party is null and void – whether National Council of organisation has power to appoint delegates to the State Conference under its general power to manage the organisation in a situation where State Council has not appointed its full complement of delegates – rule to show cause calling upon a number of the respondents to show cause why the Court should not order that they perform and observe the rules of the organisation by not attending the State Conference.

Workplace Relations Act 1996 (Cth) s 209

Williams v Hursey (1959) 103 CLR 30, cited

Imlach v Daley (1985) 7 FCR 457, cited

Bacon v O’Dea (1989) 25 FCR 495, cited

Short v Camillo [2000] FCA 504, referred to

Murphy v Eagleton (1987) 21 IR 419, cited

CRAIG JOHNSTON v DOUG CAMERON and OTHERS

V 279 OF 2000

MARSHALL J
MELBOURNE
16 MAY 2002


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 279 OF 2002

BETWEEN:

CRAIG JOHNSTON
APPLICANT

AND:

DOUG CAMERON, JOHN SPEIGHT, PETER SPYKER, HELEN DAVIS, ZELJKO CURAK, JUDITH KLEPNER, JULIUS ROE, MAURICE ADDISON, STEVE DODD, EDDIE MICALLEF, TERRY HANCOCK, DURSUN GUNEY, DAVE OLIVER, BRIEN SMIDDY, KEVIN DAVIS, SUE SCHLESINGER, NEIL ROBERTSON, JIM DOWSETT, MIKE NICOLAIDES, ANNE DONNELLAN, TANYA SOKOLOWSKI, FRANK ARMENIO, FRANK ARGONDIZZO, MUSTAFA GUNEY, JEFF MADDERN, FRANK EDMONDS, ALF FERNANDEZ, ANTONIOS LONTOS, HARRY BARTZ, JOHN KRANZ, MEHMET ALTUN, TONY ANDERSON, TONY ROSSI, PETER HEAPHY, J DOWELL, I JONES, S WALSH, P JOHNSTON, D SMITH, D HARRISON, P LEES, P BASTIAN, G HINGLE, J PARKIN, A PERKINS, J WATSON, D SARGENT, J CAMILLO and J FERGUSON

RESPONDENTS

JUDGE:

MARSHALL J

DATE OF ORDER:

16 MAY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The rule to show cause be discharged.

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

V 279 OF 2002

BETWEEN:

CRAIG JOHNSTON
APPLICANT

AND:

DOUG CAMERON, JOHN SPEIGHT, PETER SPYKER, HELEN DAVIS, ZELJKO CURAK, JUDITH KLEPNER, JULIUS ROE, MAURICE ADDISON, STEVE DODD, EDDIE MICALLEF, TERRY HANCOCK, DURSUN GUNEY, DAVE OLIVER, BRIEN SMIDDY, KEVIN DAVIS, SUE SCHLESINGER, NEIL ROBERTSON, JIM DOWSETT, MIKE NICOLAIDES, ANNE DONNELLAN, TANYA SOKOLOWSKI, FRANK ARMENIO, FRANK ARGONDIZZO, MUSTAFA GUNEY, JEFF MADDERN, FRANK EDMONDS, ALF FERNANDEZ, ANTONIOS LONTOS, HARRY BARTZ, JOHN KRANZ, MEHMET ALTUN, TONY ANDERSON, TONY ROSSI, PETER HEAPHY, J DOWELL, I JONES, S WALSH, P JOHNSTON, D SMITH, D HARRISON, P LEES, P BASTIAN, G HINGLE, J PARKIN, A PERKINS, J WATSON, D SARGENT, J CAMILLO and J FERGUSON

RESPONDENTS

JUDGE:

MARSHALL J

DATE:

16 MAY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 13 May 2002 the Court made a rule to show cause in the following terms:

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Johnston v Cameron [2002] FCA 634
Case
[2002] FCA 634
Decision Date

CaseChat Overview and Summary

In Johnston v Cameron, the dispute centred around the internal governance of a Victorian branch of an organisation and its relationship with the Australian Labor Party (ALP). The case was heard in the Supreme Court of Victoria. The central issue was whether the National Council of the organisation had the authority to appoint delegates to the ALP State Conference when the State Council had not done so, as per Rule 22.2 of the organisation's constitution. This question arose from a series of resolutions made by the State Conference and State Council in April and May 2002, concerning the organisation's affiliation with the ALP.

The court examined the powers granted to both the State Council and the National Council under the organisation's rules. It was noted that Rule 22.2 specifically gave the State Council the power to appoint delegates to the ALP State Conference, but did not preclude the National Council from exercising the same power if the State Council failed to do so. Given that the State Council had not appointed delegates for the May 2002 ALP State Conference, the court had to determine if the National Council could step in and fill this void. The court found that the National Council's general powers to manage the organisation's affairs, as set out in Rule 8.1, allowed it to appoint delegates when the State Council did not exercise its specific power under Rule 22.2.

Consequently, the court held that the National Council had the authority to appoint delegates to the ALP State Conference when the State Council had not done so. This decision was based on the principle that the National Council's general powers to manage the organisation's affairs were not restricted by the specific power given to the State Council under Rule 22.2. The court's ruling affirmed the National Council's authority to override the State Council's decision in this context. As a result, the application to show cause was discharged.

ORDERS:
1. The rule to show cause be discharged.

Orders

Orders of the court

1. The rule to show cause be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J
On 22 and 23 April 2002, the State Conference of the Victorian branch of the organisation made three resolutions on the subject matter of the organisation’s affiliation to the ALP in Victoria. They were noted in the minutes of that meeting of the organisation’s State Conference as decisions 27, 28 and 29 respectively and were as follows:“DECISION 27AFFILIATION TO THE ALP(1)State Conference notes that affiliation to the State ALP has been done in 3 parts(a)Vehicle Division(b)Printing Division(c)Metals division (Incorporating TSA & Food and Confectionery numbers)As such Conference determines that each entity determines their own position.DECISION 28AFFILIATION TO THE ALP(2)State Conference determines upon hearing the State Secretary’s report the Victorian Metals affiliation be stopped with a Special State conference to be called no later than December 2002. A committee to be set up to negotiate with the ALP. The Committee to be made up of Bro. Johnston, Nelson, Speight, plus representation from the TSA & Food and Confectionery Divisions if required. In the meantime no money will be paid in affiliation fees to the ALP. the State Council is to draw up a list of issues to be raised with the ALP in negotiations.DECISION 29AFFILIATION TO THE ALP(3)The Union needs to urgently address its relationship with the Australian Labor Party, especially in light of the policy positions taken by the Federal Labor Opposition in areas such as industrial relations, refugees and privatisation.While it would be regrettable for the Union to sever its long and proud association with the ALP, members of the Union are fed up with being taken for granted by a Party that lurches further towards the Right and appears incapable or afraid of promoting the progressive policies and ideas upon which it was founded.The Union must send a clear and unequivocal message to the ALP that it is the Union’s intention to disaffiliate from the Party at its 2004 National Conference, unless:(a)significant and measurable changes are made to the Party’s policy direction, especially in key areas such as IR and economic policy; and(b)the leadership of the Party improves communication between itself and Unions such as the AMWU.” On 8 May 2002, the State Council of the Victorian branch of the organisation resolved as follows:“The AMWU State Council determines that the ALP “Metals” Delegation (including Food and Confectionery and TSA) not attend and remove them from the May 2002 ALP State Conference delegation. Further that the Council views with concern that some Officers have been purported to be claiming we are financial and will be attending the Conference. State Council reminds all officials that State Council is the authoritative body and will determine our position.Further that the Committee as envisaged by State Conference be set up and immediately approach the ALP to start negotiations on our concerns and problems with the ALP.A report back to be given to a future State Council.”

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Mr Pearce, of counsel, appeared for most of the respondents. He submitted that the National Council had the power to appoint the delegates under Rule 8.1 of the Rules. He contended that powers available under Rule 8.1 were not confined by Rule 22.2 in circumstances where the State Council:· has not appointed delegates under Rule 22.2;· is expending funds in a manner not permitted by Rule 21; and· has sent a “rump” delegation contrary to the concept of proportionality described in Rule 22.2Consideration – power of National Council to make the impugned resolution Rule 22.2 gives the State Council the power to appoint delegates to ALP State Conference. If the State Council does not exercise that power in respect of any particular ALP State Conference meeting, a question arises whether the National Council may fill the void and appoint delegates to ALP State Conference. National Council has wide and general powers to manage the affairs of the organisation. Those powers are referred to in Rule 8.1 which is set out at [15] above. In between meetings of National Conference, National Council controls and conducts the affairs of the organisation. National Conference is empowered by Rule 6.1(a) to carry out the objects of the organisation. National Council has that power between meetings of National Conference. Those objects include the object of participating in bodies such as the ALP, by way of affiliation; see Rule 3 and Rule 21.1(c). State Council’s powers are expressly subject to the powers of National Council as referred to in Rule 26 which is set out at [19] above. A decision made by State Council not to appoint the full complement of the delegates which the organisation is entitled to appoint as delegates to ALP State Conference is therefore a decision which is capable of being overridden by a National Council decision that such delegates be appointed. State Council is given specific power in Rule 22.2 to appoint delegates to bodies such as the ALP. However, there is nothing in the Rules to prevent National Council from making such appointments under its general powers to manage the organisation in the event that the State Council fails or decides not to make such appointments. Although the powers of National Council are expressed to be “subject to the rules”, Rule 22.2 does not expressly make State Council the only repository of the power to make appointments. 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 cannot 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 (either up to the organisation’s full entitlement or otherwise), nothing in the Rules prevents the National Council from filling the void. Any decision by State Council not to appoint the organisation’s full complement of delegates must give way to any contrary decision by National Council.