Kelly v Noonan

Case [2021] FCA 146


FEDERAL COURT OF AUSTRALIA

Kelly v Noonan [2021] FCA 146   

File number(s): VID 84 of 2021
Judgment of: SNADEN J
Date of judgment: 26 February 2021
Catchwords: INDUSTRIAL LAW – application for interlocutory relief – appropriateness of directions for the observance of union rules – applicant seeks relief under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) and for urgent interlocutory relief against members of his organisation’s National Executive – dispute about allocation of members between divisions of an organisation – whether first respondent has falsely held himself out as the secretary of his organisation – whether a meeting of an organisation’s National Executive is poised to endorse a measure inconsistent with the organisation’s rules – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – application granted in part
Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) – div 2 – pt 3 – ss 95A, 145, 164, 319 and 329

Federal Court Rules 2011 (Cth) – rr 1.39 and 10.24

Cases cited:

Adlam v Noack (1998) 90 IR 31

Briant v Martin & Ors [2020] FCA 1009

Bullock v FFTSA (1985) 5 FCR 464

O’Connor v Setka [2020] FCAFC 195

Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 70
Date of hearing: 25 February 2021
Counsel for the Applicant: Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Applicant: Slater and Gordon Lawyers
Counsel for the First, Second, Third, Fourth, Seventh, Eighth, Tenth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, Twenty Eighth, Thirty First, Thirty Third, Thirty Fourth, Thirty Seventh and Thirty Eighth Respondents: Mr M Harding SC with Ms S Kelly
Solicitor for the First, Second, Third, Fourth, Seventh, Eighth, Tenth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, Twenty Eighth, Thirty First, Thirty Third, Thirty Fourth, Thirty Seventh and Thirty Eighth Respondents: Maurice Blackburn Lawyers
Counsel for the Fifth, Sixth, Ninth, Eleventh, Twelfth, Fourteenth, Fifteenth, Nineteenth, Twenty First, Twenty Second, Twenty Ninth, Thirtieth, Thirty Second, Thirty Fifth and Thirty Sixth Respondents: Did not appear

ORDERS

VID 84 of 2021
BETWEEN:

GRAHAME KELLY

Applicant

AND:

DAVID NOONAN

First Respondent

ADRIAN EVANS

Second Respondent

ANDREW SUTHERLAND (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

26 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to rule 10.24 of the Federal Court Rules 2011 (hereafter, the “FCRs”), service of:

(a)the Originating Application; and

(b)the Pasfield Affidavit,

upon the fifth, sixth, ninth, eleventh, twelfth, fourteenth, fifteenth, nineteenth, twenty-first, twenty-second, twenty-ninth, thirtieth, thirty-second, thirty-fifth and thirty-sixth respondents be taken to have been effected by their being emailed a copy of those documents.

2.Pursuant to rule 1.39 of the FCRs, the time for service upon the respondents of the Originating Application and the Pasfield Affidavit…

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Kelly v Noonan [2021] FCA 146
Case
[2021] FCA 146
Decision Date

CaseChat Overview and Summary

The case of Kelly v Noonan involved an application by the applicant, Kelly, for interlocutory relief under the Fair Work (Registered Organisations) Act 2009 (Cth) against the respondents, including Noonan, who held himself out as the Acting Secretary of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The dispute centred around the allocation of members between divisions of the CFMMEU, a proposed resolution by the Construction and General Division (C&G Division), and allegations of improper conduct by Noonan. The Federal Court was tasked with determining the appropriateness of directions for the observance of union rules, particularly in light of a scheduled meeting of the CFMMEU’s National Executive.

The primary legal issues revolved around whether the court had the authority to issue directions for the observance of union rules under section 164 of the Act, the validity of the scheduled National Executive meeting, and whether Noonan had falsely represented himself as the Acting Secretary. The court also needed to assess the balance of convenience in granting interim relief and whether there was a prima facie case for the alleged breaches of union rules.

The court found that while there was a prima facie case that the National Executive meeting had been improperly called due to inadequate notice, the case was weak and the balance of convenience did not favour granting interim relief to stop the meeting. Regarding the C&G Resolution, the court found a strong prima facie case that if the National Executive voted in favour of the resolution, it would establish a practice inconsistent with the union rules. Given the strength of this case and the potential for harm, the balance of convenience favoured granting interim relief to restrain the resolution. However, concerning Noonan's conduct, although there was a prima facie case that he had wrongly held himself out as the Acting Secretary, the court concluded that there was no urgent conduct warranting interim relief at that time.

The court granted the relief sought in relation to the C&G Resolution, directing the respondents to refrain from resolving the dispute at the scheduled meeting. The application for interlocutory relief was otherwise dismissed, and the matter was adjourned for a case management hearing. No order as to costs was made in light of section 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth).

Orders

Orders of the court

1. Pursuant to rule 10.24 of the Federal Court Rules 2011 (hereafter, the “FCRs”), service of:

(a) the Originating Application; and

(b) the Pasfield Affidavit,

upon the fifth, sixth, ninth, eleventh, twelfth, fourteenth, fifteenth, nineteenth, twenty-first, twenty-second, twenty-ninth, thirtieth, thirty-second, thirty-fifth and thirty-sixth respondents be taken to have been effected by their being emailed a copy of those documents.

2. Pursuant to rule 1.39 of the FCRs, the time for service upon the respondents of the Originating Application and the Pasfield Affidavit be abridged to the extent necessary to permit the urgent hearing of the applicant’s claim for interlocutory relief on Thursday, 25 February 2021.

3. Pursuant to s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth), the respondents are directed to refrain from determining, or in any other way resolving or settling—whether by resolution or otherwise—the C & G Dispute at the National Executive Meeting.

4. For the purposes of these orders:

(a) the “C & G Dispute” means the dispute that is the subject of the resolution passed by the C & G Division on Thursday, 18 February 2021, and the Notice of Dispute to which that resolution pertained, each of which is reproduced as part of annexure PJP3 to the Pasfield Affidavit;

(b) the “C & G Division” means the Construction and General Division of the CFMMEU;

(c) the “CFMMEU” means the Construction, Forestry, Maritime, Mining and Energy Union;

(d) the “National Executive Meeting” means the meeting of the CFMMEU’s National Executive that is scheduled to take place at 1:00pm AEDT on Friday, 26 February 2021;

(e) the “Originating Application” means the originating application herein dated 24 February 2021; and

(f) the “Pasfield Affidavit” means the affidavit of Phillip John Pasfield affirmed herein on 24 February 2021.

5. The applicant’s application for interlocutory relief is otherwise dismissed.

6. The matter be adjourned to a case management hearing to take place on a date to be fixed.

7. In light of s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

When considering whether to make interim orders under s 164(4) of the FW(RO) Act, the court should have regard to whether, or the extent to which, doing so would assist the “…efficient and effective working of the Union pending the final resolution of the proceedings”: Adlam v Noack (1998) 90 IR 31, 35 (von Doussa J). EVIDENCE The applicant relies upon two affidavits affirmed by his solicitor, Mr Phillip John Pasfield: one on Wednesday, 24 February 2021 and one on Thursday, 25 February 2021. The first respondent relies upon two affidavits affirmed on Thursday, 25 February 2021 by his solicitor, Mr Declan Vincent Murphy, and a further affidavit affirmed on the same day by a different solicitor, Mr Jack Oscar Oates Faine. All five affidavits were received without objection. Additionally, both sides filed written submissions, for which I record the court’s gratitude. THE UNION RULES Several of the Union Rules assume significance presently. As most equivalent instruments do, they stipulate in extreme detail the industries, professions and callings in respect of which membership of the Union is available. Rule 2 of the Union Rules occupies 41 of the 101 pages over which they span. It is divided into 19 subsections, “(A)” through “(S)”, each of which identifies a particular basis upon which membership eligibility arises. Rule 7 is entitled “membership”. For the most part, it sets out how prospective members might make application for membership of the Union. It also contains the following provisions relevant to the present matter:…(iv)A member shall be attached to the Division of the Union covering the industry or employment of the member and shall be in only one such Division. Each member shall be notified of the Division to which such member is attached or any other classification relevant to the Rules of the Union and such Division or classification shall be entered on the record of the Union in relation to that member which record shall be conclusive proof of the Division and/or classification to which that member is assigned.…(viii)(a) Where a Divisional Secretary or Divisional Branch Secretary is of the view that a person in the Division or Divisional Branch of which she/he is an officer should be attached to another Division or Divisional Branch the Divisional Secretary or Divisional Branch Secretary shall contact the Divisional Secretary or Divisional Branch Secretary of the Division or Divisional Bra11ch to which, in the view formed, the member should be attached, and seek to obtain agreement on the transfer of the said member. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.(b)Further provided that where a Divisional Secretary or a Divisional Branch Secretary forms the view that a member of another Division or Divisional Branch ought to be a member of the Division or Divisional Branch to which the Divisional Secretary or Divisional Branch Secretary is attached, the Div[i]sional Secretary or Divisional Branch Secretary shall contact the the [sic] Divisional Branch Secretary of the Divisional Branch to which the member is now attached and seek agreement that the member be transferred. Where agreement cannot be reached the matter may be referred to the National Secretary and be determined by the National Executive or an officer designated by the National Executive.…(d)Any determination by the National Executive or officer designated by the National Executive shall use the principles established in and by sub-rules 42(i) and 42(iii) hereof.Nothing in these paragraphs shall affect or detract from the provisions of subrule(s) 42(i), (iii) and (xii) and membership of a Division or a Divisional Branch shall be valid notwithstanding an irregularity in, breach of or failure to comply with the procedures in either one or both paragraphs (a) or (b) herein.…

Decision

Reasons for decision

That being so, I do not consider it necessary to examine whether the first respondent, having purported to act as the Union’s Acting Secretary (and having, apparently, been recognised as such—including by members of the M & E division—for some time), might attract the operation of s 319(2) of the FW(RO) Act. I take the view that the balance of convenience does not incline in favour of interim relief.CONCLUSION Insofar as concerns the holding of the 26 February meeting, I am satisfied that there is a prima facie case that it has been improperly called (for want of adequate notice) but I consider that that case is weak. I also do not consider that the balance of convenience inclines in favour of interim relief to stop the meeting from proceeding (assuming that there might be some utility in its proceeding, notwithstanding what is said below). No such relief will be granted. Insofar as concerns the C & G Resolution, I am satisfied that there is a prima facie case—I think a strong one—that, assuming (as I do) that the members of the Union’s National Executive will vote as the C & G Resolution urges them to, the result would be—or would purport to be—the institution of an arrangement or practice, ostensibly binding upon the M & E division, that governs the allocation of members amongst the two divisions, and that does so in a way that is inconsistent with the Union Rules. Although finely poised, I also am of the view that the balance of convenience favours the granting of interim relief to restrain that eventuality. That is particularly so in light of the relatively strong prima facie case that is raised in that respect. Insofar as concerns the conduct of the first respondent, I am satisfied that there is a prima facie case that he has wrongly held himself out as the Union’s Acting Secretary. Nonetheless, there is no particular conduct on his part that warrants urgent interim relief at this juncture. The applicant’s complaints are, instead, hypothetical. That being so, the balance of convenience does not favour a grant of interim relief and none will be granted. The court will make orders consistent with the reasoning above. The respondents will, by direction, be restrained from determining or resolving the C & G Resolution (or the dispute to which it relates) at the meeting of Friday, 26 February 2021. In all likelihood, that will result in the meeting not going ahead (but that can be left to the respondents to determine). The applicant’s application for interim relief will otherwise be dismissed. I record the court’s gratitude to the parties (and to the respondents, in particular) for the skill and speed with which they were able to frame their evidence and submissions, and for their courtesy in appearing before the court on the very short amount of notice that they were given.

Ratio Decidendi

Legal Principle Established

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