McGee, S. v Sanders, J.H

[1991] FCA 830

JUDGMENT No. B.~.OJ._~;!--

GENERAL DISTRIBUTION NOT REOUIRED

JN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	1 No. V1 32 of 1991
JNDUSTRIAL DIVISION
B E T W E E N :

STEVEN McGEE

Applicant

A N D :

J. H. SANDERS. C.
KEILY. K. WISE. H. E. WEIR. G. R. NEWMAN. R. J. HORE. B. R. AGG. D. CRUMP. K. J. CONNORS.

, , ' EDERAL COURT OF G. WOOD. 3. M.

,	AUSTRALIA
PRINCIPAL BILTRIS. J. B. WHITE,

\ , REGlSTRV D. A. PORTER and P.

'. I \ POWER

Respondents

12 JUNE, 1991 KEELY J.

REASONS FOR JUDGMENT - DELIVERED EX TEMPORF

organisation at its meeting on 12 March, 1991 suspending Committee of Management of the Victorian Branch of the

the applicant from the office of Branch Tnstee within
the Victorian Branch of the organisation.

In this matter the court on 22 April 1991 made orders that the respondents, J. H. Sanders, C. Keily, K. Wise, H. E. Weir, B. R. Agg, K. J. Connors, G. Wood, J. M. Biltris, D. A. Porter and P. Power and each of them:-

1.    Perform and observe the rules of the Transport Workers' Union of Australia ("the organisation") by desisting from implementation of the purported resolution of the

2.   Perform and observe the rules of the organisation by

ceasing to deprive the applicant of access to and inspection of all minutes of meetings of the Committee of Management held in 1991 and all reports tabled at such meetings.

The Branch President, in an affidavit sworn 7 April, 1991, deposed that "on the 15th April, 1991 at a Branch Committee of Management Meeting a resolution pursuant to Rule 37 was passed calling for a special Branch Meeting for the 12th June, 1991, to consider the suspension of S. McGee". Shortly after the applicant became aware that that meeting ("the Special Meeting") was likely to be held. Notwithstanding the court's orders of 22 April 1991, he directed his solicitors to take action. They wrote to the

i	respondentsv solicitors on 10 May 1991 and the resultant
correspondence has been exhibited in this proceeding. Neither the applicant nor his solicitors were informed, until last
Friday 7 June 1991, that the Meeting was to proceed.
The applicant has today sought further interim orders restraining the respondents from holding or conducting or participating in the Special Meeting, which is to be held at 7.30 this evening.
On the material before the court it appears that notice of the Special Meeting was only given to the members of the Victorian Branch (the Branch) of the Transport Workers Union of Australia by advertisements in the Herald-Sun on Saturday 8 June 1991; it has appeared every day since that date including today. During the luncheon adjournment I have considered the authorities cited by Mr. Harshall, who appeared for the respondents. In my opinion there is a serious question to be
(	tried as to whether the notice by advertisement of the Special Meeting was inadequate. As Spicer CJ., Dunphy and Morgan JJ.
said in cam~bell v Hiaains (1957) 3 FLR 317 at 327-329:-

"We are of the opinion that, where there is a union with a large metropolitan membership and with sub- branches established in country towns and in a neighbouring State, notice by advertisement in the press of any meeting, whether ordinary or special, must be advertisement which provides sufficient time for members to attend such meeting if they so desire and in newspapers which they might be expected to see. The terms of the notice of a special meeting should contain sufficient information as to the business to be conducted thereat.

We are well aware of the practical difficulties	attaching to a problem of this nature and we
appreciate the impossibility, where there is a large and widely dispersed membership, of giving each and every individual member personal notice of ordinary meetings, except perhaps per medium of the pence card system. However, there is no doubt that in calling a special meeting there is a duty to use such means as are likely to come to the notice of members in sufficient time to enable them to attend, if they so desire. ....
(At 328) In general the reasons why such notice should be given are so obvious as not Yo need specification. The basis of the necessity however is the rights of the individual member in the first place and then the requirements of democratic government or management of such an organization.
S . . .
(At 329) In all these circumstances we hold that the notice in the Age newspaper of 27th April was totally inadequate and accordingly the resolution . . . was invalid. It follows that the infliction of penalties on the applicants in purported exercise of the powers conferred by r. 32 of the federal rules was likewise invalid."

That decision was cited by Spicer CJ. and Smithers and

Woodward JJ. in v Jarrad [l9741 IAS 199.

It may be added that in Cm~bell's Case the court considered a submission by the respondents "that the advertisement could not have appeared earlier" and said "we are satisfied there are ways and means, some of which have been previously referred to, which could have been resorted to to overcome the difficulty". In the present case there is nothing in the material to suggest that the advertisement could not have been inserted in the daily newspaper at an earlier time. In all the circumstances having regard to the importance of the matter for consideration at the Meeting i.e. the suspension of a Branch Trustee who had been elected to

that office by the members of the Branch, in my opinion it is	strongly arguable that the notice of Meeting was inadequate.
Accordingly there is a serious question to be tried as to whether the Special Meeting, if it be held this evening, and any resolution carried by that Meeting, would be null and void and of no effect.
In my opinion the two other submissions advanced by Miss Hickey, on behalf of the applicant, each raise a serious question to be tried. As this is only an interlocutory hearing of a case that has been listed for final hearing on l July 1991, it is undesirable that I should say any more than that the applicant's prospects of success on each of those two matters is such as to warrant the making of the further interim orders sought by him in this hearing, having regard to the "balance of convenience".
The first submission of Miss Hickey was that the resolution carried by the Branch Committee of Management on 12 March 1991, suspending the applicant, was invalid and that, as a matter of construction of rule 37 of the Branch Rules, any resolution carried by the proposed Special Meeting in relation to the applicant would necessarily be invalid i.e. as a consequence of the invalidity of the resolution of the Branch Committee of Management.

I

The second submission of Miss Hickey was that the

proposed Special Meeting would have no power to deal in any

way with the resolution of the Branch Committee of Management	purporting to suspend the applicant. In this connexion she
referred to the concession by the respondents' counsel that, as a matter of law, the proposed Special Meeting would have no power "to carry a motion of no confidence in" the applicant (see Branch Rule 37(e)). It would appear to follow from that concession that the Chairman of the Special Meeting would have no power to declare vacant the position of Branch Trustee held
by the applicant (see Rule 37(f)).
I accept Miss Hickey's submission that the "balance of convenience" is in favour of the applicant. In reaching that conclusion I have considered all of the matters put to the court by Mr. Marshal1 on behalf of the respondents.
Accordingly the court makes the following orders that the respondents, J. H. Sanders, C. Keily, K. Wise, H. E. Weir, B. R. Agg, K. J. Connors, G. Wood, J. M. Biltris, D. A. Porter

i	and P. Power and each of them:-
1. Until the hearing and determination of . McGee's

application in matter number V1 32 of 1991, shall treat as null and void and of no legal effect the resolution of the Branch Committee of Management of the Transport Workers Union of Australia carried on 15 April 1991, whereby a Special Branch Meeting was called for 12 June 1991 to consider the suspension of Mr. McGee.

2.    Is hereby restrained from taking any part whatever in the holding or conduct of and from participating in a Special Meeting of the Members of the Victorian Branch of the Transport Workers Union of Australia on 12 June 1991, called to consider the suspension of Steven McGee from office as Branch Trustee.

I certify that this and the foregoing five pages are a true copy of the

Reasons for Judgment herein of h i s Honour M r . Justice Keely delivered on 12 June, 1991.

Associate:	L. M
Dated:	12 June, 1991.

Date of Hearing	: 12 June, 1991
Date of Judgment	12 June, 1991

Solicitor for Applicant	.	Holding Redlich
Counsel for Applicant	M. Hickey
Solicitor for Respondents	Harry Nowicki & Co.
Counsel for Respondents	S. Marshal1