Re: DAVID THOMAS MAY And: P. COX; J. BROWN; J. DANN; G. HARRIS; E. McARA; I. MILLER; M. NICHOLAIDES; J. SPEARS and D. DZUR No. NI 10 of 1989 FED No. 369 Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION Wilcox J.(1)
CATCHWORDS
Industrial Law - Application to enforce Rules of registered organization - Calls for national plebiscite of members - Whether calls made by properly constituted Special General Meetings of Branches - Special General Meetings called by meetings of Branch Councils at which there was no sufficient quorum - Deficiencies in notice to members - Whether strict compliance with Rules necessary for valid Special General Meetings.
Counsel for the Respondents Messrs J Brown, J Dann, P Drosd, G Harris, E McAra, M Nicholaides and D Dzur: Mr S R Marshall
Solicitors for the Respondents: Maurice Blackburn & Co
Appearance for Respondents Messrs P Cox, I Miller and J Spears: Mr C G Staff (Solicitor)
Solicitors for Respondents Messrs P Cox, I Miller and J Spears: Jones, Staff & Co
ORDER
The Application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Application has been made to the Court, pursuant to s.209 of the Industrial Relations Act 1988, for an order compelling the members of the Federal Executive of the Association of Draughting, Supervisory and Technical Employees ("ADSTE") to perform the rules of that organization. The applicant is a member of ADSTE, an organization registered under the Industrial Relations Act, and a supporter of a move for a plebiscite of the members of the organization upon the question whether ADSTE should amalgamate with the Amalgamated Metal Workers' Union ("AMWU"). Three of the respondents, Messrs P Cox, I Miller and J Spears, appeared by their solicitor to submit to the order of the Court. The remaining seven respondents, whom I shall refer to simply as "the respondents", appeared by counsel to contest the claim of the applicant that there was default in the Federal Executive's performance of the rules. Their counsel concedes that the Federal Executive has declined to take a plebiscite of members; but he argues the request for it to do so was not valid. There is evidence to suggest that the Federal Executive is unwilling to incur the expense of a plebiscite at this stage, having in mind that there must, in any case, be an approving vote of members before any amalgamation may be consummated: see Div.7 of Part IX of the Industrial Relations Act. Of course, the Court is not concerned with the merits of holding a plebiscite at this stage; and still less with the arguments for and against any amalgamation. The only question for the Court is whether the Rules of the organization entitle the Federal Executive to take the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
May, T.D. v. Cox, P. & Ors [1989] FCA 369
Case
[1989] FCA 369
Decision Date
CaseChat Overview and Summary
The case of May, T.D. versus Cox, P, was heard in the Federal Court of Australia. The dispute arose from calls made for a national plebiscite of members by certain branches of a registered organisation. The primary contention was whether the calls for the plebiscite were made by Special General Meetings that were properly constituted according to the organisation's rules. Specifically, the issue centred on whether the Special General Meetings were validly convened by Branch Councils that did not have a sufficient quorum, and whether deficiencies in the notice to members rendered the meetings invalid. The central question for the court was whether strict compliance with the organisation's rules was necessary for the Special General Meetings to be considered valid.
The court examined the requirements set out in the organisation's rules regarding the constitution of Special General Meetings. It determined that the Branch Councils did not have a sufficient quorum at the time they called the meetings, and that there were significant deficiencies in the notice provided to the members. The court concluded that these deficiencies were fundamental and that strict compliance with the rules was necessary for the meetings to be considered valid. As a result, the court held that the calls for the national plebiscite were not made by properly constituted Special General Meetings. Consequently, the application to enforce the Rules of the registered organisation was dismissed.
In dismissing the application, the court emphasised the importance of adhering to the prescribed procedures set out in the organisation's rules. It underscored that deviations from these rules, particularly in the context of convening meetings that have significant implications, must be strictly adhered to. The deficiencies in the notice and the failure to achieve a sufficient quorum were deemed to render the meetings invalid, and therefore the calls for the plebiscite could not be enforced.
The final orders of the court were that the application be dismissed. This decision underscores the necessity for registered organisations to ensure that all procedural requirements are meticulously followed to maintain the validity of their decision-making processes.
Orders
Orders of the court
The Application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.