Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd

[1981] FCA 15

COOK v. CRAWFORD (1981) 52 FLR 1
Nos. N.S.W. 19, V23 and V24 of 1979
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.(1)

CATCHWORDS

Industrial Law - Rules of organization - charges against persons holding office - whether rules providing for dismissal from office or expulsion from organization valid - rule amending rule - mandatory or directory - express general power to amend - whether contrary to s.140(1) - Natural Justice - bias - failure to grant application for adjournment - incompatible offices - resignation from office or organization by conduct - repudiation of agreement - Conciliation and Arbitration Act 1904 ss.140, 141, 144, Regulation 115(1)(d)(v).

Conciliation and Arbitration - Registered organization - Rules - Oppressive, unreasonable or unjust - Performance and observance thereof - Dismissal from office and expulsion from membership of members by federal executive - Whether federal executive validly constituted - Whether rules validly amended - Whether express general power of federal council to amend rules valid - Hearing of charges against members - Whether breach of rules of natural justice - Bias - Conciliation and Arbitration Act 1904 (Cth), ss. 133(1)(f), 139(4), 140(1)(a), (c), (5G), 141(2), (8A), 150, 157, 171B, 171C - Federal Court Rules, O. 29; O. 51, r. 2.

Conciliation and Arbitration - Registered organization - Performance and observance of rules - Payment of capitation fees by branch - Rate of fees - Audit of books of account - Duty to fill vacancy in branch office - Conciliation and Arbitration Act 1904 (Cth), s. 141.

HEADNOTE

Proceedings under the Conciliation and Arbitration Act 1904 (the Act) were heard together. They each related to the Plumbers and Gasfitters Employees' Union of Australia (the organization) a registered organization. There were two branches of the organization in New South Wales - the Sydney branch and the Newcastle branch.

N.S.W. 19 of 1979

By order to show cause the claimant, a member of the organization, chairman of the Sydney branch and of a State registered union, the New South Wales Plumbers and Gasfitters Employees' Union, sought orders: (a) under s. 141 of the Act that the respondents being federal executive members perform and observe the rules of the organization by treating as null and void certain resolutions of the executive purporting to expel from membership and dismiss from office five members of the Sydney branch: (b) that the respondents recognize the five members as holders of their respective offices on the grounds that the rules (rr. 13(6) and 35(10)(d) under which the charges were laid and heard and penalties imposed were invalid and that the relevant procedure of the federal executive involved a denial of natural justice to the members.

Held: (1) The orders sought that rr. 13(6) and 35(10)(d) were invalid should be refused because: (a) The amendments to the rules adopting those provisions had been validly approved by the federal council of the organization at a meeting in 1978 pursuant to an express general power given to that council by r. 27(5) to "at any time make or amend any rules". In turn r. 27(5) had been validly adopted. Roots v. Mutton (1978), 32 FLR 15, distinguished. In the event that any invalidity had been established in relation to the amendment of r. 27(5) it would have been appropriate to validate it pursuant to s. 171C of the Act in accordance with the application brought in V. 24 of 1979. (b) The 1977 and 1978 federal councils which made the relevant amendments to the rules had not been shown to be invalidly constituted because of the provision that each State have two representatives except New South Wales with three as - (i) there was no acceptable evidence before the court as to the membership of the branches at the relevant time, and accordingly no relevant imbalance in the voting strength had been proved; (ii) even on the limited information provided, the voting strength of the branches when considered together with the plebiscite rules did not fall outside the permissible spectrum. Boland v. Federated Liquor and Allied Industries Employees' Union of Australia (1979) L.B. Co.'s Indus. Arb. Serv., Current Review, p 199, applied. (c) Rule 35(10)(d)(iv) did not contravene: (i) s. 140(1)(c) of the Act as the rules as a whole did contain ascertainable and express conditions to be complied with by members. Charges were to be laid only in default of such compliance; (ii) s. 140(1)(a) of the Act as it did not contravene s. 144. Lorimer v. Australian Workers' Union (1975), 30 IIB 842, not followed; Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979), 40 FLR 445, applied.

(2) The federal executive which heard the charges was validly constituted.

(3) Rule 27(5) of the organization did not contravene s. 140(1)(a) or (c) of the Act as: (a) The federal council was subject to adequate and readily available controls by members. (b) The power to amend the rules was subject to the implied requirement of conformity with the Act, the statutory requirement of certification by the Industrial Registrar pursuant to s. 139(4) and statutory right of challenge by members. Boland v. Federated Liquor and Allied Industries Employees' Union of Australia (1979) L.B. Co.'s Indus. Arb. Serv., Current Review, p 199; Morris v. Federated Liquor and Allied Industries Employees' Union of Australia (1978), 35 FLR 60, referred to.

(4) The five members charged had not been denied natural justice at the federal executive hearing as: (a) Although the letter informing them of the hearing referred to a non-existent rule they were not misled or prejudiced thereby. (b) They had received adequate particulars of the charges. (c) Their requests for adjournments were contrived and in any event the court should only interfere if satisfied that an applicant had been deprived of a reasonable opportunity of answering the charge against him. Burnbrae Farm Ltd. v. Canadian Egg Marketing Agency (1976), 65 DLR (3d) 705, referred to. (d) It had not been established that the federal executive was biased in the sense that there was a real likelihood of the presence of bias. Cains v. Jenkins (1979), 42 FLR 188; Dale v. New South Wales Trotting Club Ltd., (1978) 1 NSWLR 551, applied. (e) In the absence of a denial of natural justice the court would not interfere with the decision of a domestic tribunal if it considered that reasonable men acting honestly could have reached it. Australian Workers' Union v. Bowen (No. 2) (1948), 77 CLR 601, applied. (f)(i) On the evidence during 1977 and 1978 there was a concerted plan by Sydney officials, particularly the five members charged, to promote a State union at the expense of the Sydney branch and to destroy or at least so weaken the Newcastle branch that it would not be a viable branch; (ii) the decisions reached by the federal executive as to the facts and penalty relating to the five members were open to it on the facts.

V. 23 of 1979.

By order to show cause the applicant sought orders under s. 141 of the Act against the respondents being members of the committee of management of the Sydney branch of the organization.

Held: (1) Orders as to payment of capitation fees by the Sydney branch should be made as: (a) The rate had been fixed by a validly constituted federal council. (b) The resolution fixing the rate was directed to the method of calculation of the amount due at the end of the then current financial year and not during the next. Allen v. Laragy (1975), 7 ALR 261, distinguished.

(2) The orders sought as to the filling of the vacant offices in the Sydney branch resulting from the orders in N.S.W. 19 of 1979 should be made as the remaining committee of management members had a power and duty to fill the vacancy in the position of secretary. Rochfort v. Ryan (1965), 8 FLR 283; Beeson v. Blayney (1966), 8 FLR 292; Jones v. Farrow (1971), 26 I.I.B. 2731, referred to.

(3) The orders sought requiring the respondents to make available all the books and accounts for audit should be made as: (a) The federal executive had validly demanded such an audit. (b) The federal executive had power to demand a special audit.

HEARING

Sydney, 1979, September 4, 13-14; November 5-9; December 12;

1980, May 9; 1981, March 4. #DATE 4:3:1981

ORDERS TO SHOW CAUSE. APPLICATIONS.

F. McAlary Q.C., J. Shaw and L. Wright, for the claimants in N.S.W. 19 of 1979 and the respondents in V. 23 and V. 24 of 1979.

E.A.H. Laurie Q.C. and P.R.A. Gray, for the respondents in N.S.W. 19 of 1979 and the claimants applicants in V. 23 and V. 24 of 1979.

R.C. Kenzie, for R. Masterson.

Cur. adv. vult.

Solicitors for the claimants in N.S.W. 19 of 1979 and the respondents in V. 23 and V. 24 of 1979: White, Barnes & Maguire.

Solicitors for the respondents in N.S.W. 19 of 1979 and the claimants/applicants in V. 23 and V. 24 of 1979: Ryan, Carlisle, Needham & Thomas.

Solicitors for R. Masterson: Steve Masselos & Co.

T.J. GINNANE

ORDER

The rule to show cause herein be discharged.

(1) the respondents within fourteen days from the date hereof constitute a Committee of Management of the Sydney Branch of the organization and appoint a member of such Sydney Branch eligible to nominate for the office of Branch Secretary in accordance with the rules to carry out the functions of the office of Branch Secretary pending the filling of such office pursuant to an election referred to in (5) below.

(2) the person so appointed carry out all duties of the Branch Secretary as provided for in the rules of the organization pending the election of a Branch Secretary in accordance with these directions or further order of the Court.

(3) the respondents Bruce J. Palmer and C.L.H. Hastwell each sign a cheque within seven days from the date hereof for the outstanding Sydney Branch capitation fees for the year ending 31 March 1979 being the difference between an amount calculated at the rate of 17 1/2% of the total receipts from branch contributions for that financial year and the amount already paid to Head Office of the organization in respect of that financial year on or about 17 July 1979.

(4) the respondents or the person appointed in accordance with (1) above cause to be forwarded to Head Office of the organization the cheque referred to in (3) above within fourteen days of the date herein.

(5) the person appointed in accordance with (1) above cause an election to be held pursuant to r.51(1) and r.48 (with the necessary changes) for the filling of the offices of Secretary, Assistant Secretary/Organiser and three Organisers of the Sydney Branch of the organization within such time as the Court directs after hearing submissions by the parties in this regard.

(6) the respondents and the person appointed in accordance with (1) above within fourteen days of the date hereof make available to Messrs J. Masselos & Co., Chartered Accountants, all books, vouchers, papers, documents, application cards, receipts and any other relevant material for the purpose of enabling the same to be audited in respect of the financial years ending 31 March 1978 and 31 March 1979 or such further period as the Court may direct after hearing submissions from any of the parties applying pursuant to the order granting liberty to apply.

(7) Liberty is reserved to any party to apply on forty-eight hours notice to the other parties and to the Court.

(1) The application be adjourned to 13 April 1981.

(2) Liberty is reserved to any party to apply on fourteen days notice to the other parties and to the Court. Orders accordingly.

JUDGE1

On 1 and 2 May 1979 certain members of the Federal Executive (the Executive) of the Plumbers and Gasfitters Employees' Union of Australia (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act), heard charges laid by Ronald Ivor Masterson, a member of the organization against five other members, namely; Ulich Colin Bignell, Harold Shooter, Kenneth Lewis Tyler, Royce Lawrence Cummins and Gregory Laurence Waters.

On 2 May 1979 the Executive found Mr Bignell guilty of the first of three charges laid against him and each of the other four members guilty as charged. In all cases it imposed a penalty of expulsion from the organization and dismissal from the respective office or offices held by them within the organization.

At that time Mr Bignell held himself out as being the holder of the following offices, namely; (a) Branch Secretary of the Sydney Branch of the organization having been elected to that office for a period of six years in July 1977; (b) Sydney Branch delegate to Federal Council having been elected to that office in 1977 and (c) a member of the Federal Executive having been elected to that office in 1977 by and from the then Federal Council.

Mr Shooter then held himself out as being the holder of the office of Assistant Secretary/Organizer of the Sydney Branch of the organization having been elected to that office for a period of six years in 1977.

Messrs Tyler, Cummins and Waters then held themselves out as being full time organizers of the Sydney Branch of the organization having been elected to those offices in 1977 for a period of 6 years. In addition Mr Tyler held himself out as a Sydney Branch delegate to the Federal Council of the organization having been elected to that office in 1977.

In May 1979 there was registered under the New South Wales Trade Union Act 1881 and the Industrial Arbitration Act 1940 a union with the name of The New South Wales Plumbers and Gasfitters Employees' Union (the State union). The said five members of the Sydney Branch of the organization were then and still are members of the State Union holding offices in that union similar to the respective offices held by them in the organization.

The charges against the five members were laid on 30 March 1979 pursuant to r.13(6) of the then certified rules of the organization by Mr Masterson who was then and had been for some years the secretary of the Newcastle Branch of the organization.

Relevant parts of the then r.13 read:
"13. Offences and Charges

1. to 5. . . . . . . . . . . .

6. Any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35."
Relevant parts of the then r.35(10) read:
"35. Federal Executive

10. The Federal Executive shall have the power

(a) to hear and determine an appeal by any member or officer lodged pursuant to Rule 13(4) or Rule 51(3);
(b) to hear and determine charges made against any member direct to the Secretary pursuant to Rule 13;
(c) . . . . . . . . . . . . . . . . . .
(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to
(i) pending the investigation of the charges or complaints to suspend any officer from performing all or any of his duties for a period not exceeding three months;
(ii) to impose a fine not exceeding $200;
(iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross neglect of duty or who has ceased according to the Rules to be eligible to hold the Office;
(iv) to expel any member.

The letters to the General Secretary of the organization in which Mr Masterson laid charges against the five members were each dated 30 March 1979. Each of the four letters relating to Messrs Shooter, Tyler, Cummins and Waters was in identical terms except for the particulars of the names and places of employment of the members of the Newcastle Branch who were allegedly persuaded, encouraged and aided to resign from membership of the organization. The letter concerning Mr Shooter (omitting formal parts) was as follows:
" 30th March, 1979

Dear Comrade,

I, Ronald Ivor Masterson of 2 Speers Street, Speers Point, N.S.W. being a member of the Plumbers and Gasfitters Employees' Union of Australia and Secretary of its Newcastle Branch hereby lay charges pursuant to Rule 13(6) against H. Shooter a member of our Union and Assistant Secretary of its Sydney Branch that being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he has actively persuaded, encouraged and aided members of the Newcastle Branch of our Union to resign from membership of our Union.

The grounds upon which I lay these charges against H. Shooter are that between the 23rd February, 1979 and 29th March, 1979 he has actively persuaded, encouraged and aided within the area of the Newcastle Branch as defined in Rule 47 the following members of the Newcastle Branch: (14 names were set out) employed by the Royal Newcastle Hospital (Health Commission) to resign from membership of our Union.

As H. Shooter's actions are of the utmost importance I ask that the Federal Executive deal with them as a matter of urgency and that H. Shooter be summoned to show cause why he should not be dismissed from the office of Assistant-Secretary of the Sydney Branch or otherwise dealt with pursuant to Rule 35(d) and why he should not be expelled from membership of our Union pursuant thereto.

(sgd) R. MASTERSON.

Mr Masterson's letter (omitting formal parts) to the General-Secretary concerning Mr Bignell was as follows:

" 30th March, 1979

Dear Comrade,

I, Ronald Ivor Masterson of 2 Speers Street, Speers Point, N.S.W. being a member of the Plumbers & Gasfitters Employees' Union of Australia and Secretary of its Newcastle Branch hereby lay charges pursuant to Rule 13(6) against U.C. Bignell a member of our Union and Branch Secretary of the Sydney Branch that:

A. Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he ordered and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from membership of our Union and he has approved and endorsed their actions in doing so.

The grounds upon which I lay these charges against U.C. Bignell are that between 23rd February, 1979 and 29th March, 1979 he has so ordered and directed the said officers and has approved and endorsed their action in carrying out those orders and directions.

B. Being Branch Secretary of the Sydney Branch of our Union he is guilty of gross neglect of duty in that he has failed to forward to Head Office the Statement he is required to send pursuant to Rule 42(8) formerly numbered Rule 42(6) in respect of the financial year ended 31st March, 1978.

C. Being Branch Secretary of the Sydney Branch of our Union he is guilty of gross neglect of duty in that he has failed to forward to Head Office the sum he is required to send pursuant to Rule 42(8) formerly numbered 42(6) for the financial period ended the 31st March, 1978.

As these matters are of the utmost importance I ask that the Federal Executive deal with them as a matter of urgency and that U.C. Bignell be summoned to show cause why he should not be dismissed from the office of Secretary of the Sydney Branch or otherwise dealt with pursuant to Rule 35(d) and why he should not be expelled from membership of our Union pursuant thereto.

(sgd) R. MASTERSON"

The relevant parts of r.42(8) referred to in paragraph C of the letter addressed to Mr Bignall reads: "each Branch Secretary shall within 8 weeks of the close of each financial period forward Head Office a duly audited and signed statement for such financial period; together with the amount prescribed in sub-r.(6)". Sub-rule (6) deals with capitation fees, being a percentage of total receipts of branch members contributions, due from branches to Head Office.

On 3 April 1979 the General Secretary in accordance with the rules of the organization conducted a ballot of the members of the Executive seeking answers to proposals that an Executive meeting be held on 1 May 1979 to hear and determine the charges and that the General Secretary be directed to summon the said five members to show cause why each of them should not be dismissed from office or otherwise dealt with pursuant to r.35(d) and why each of them should not be expelled from membership of the organization pursuant thereto. (see rules 35(4) and (5), 36 and 23(3)). Such proposals were adopted.

Accordingly on 10 April 1979 the General Secretary wrote to each of the five members in identical terms. The letter to Mr Shooter is as follows:
" 10th April, 1979

Mr H. Shooter,

Dear Comrade:

I have received charges against five full time paid officials of Sydney Branch, including yourself. A copy of the charges laid against you is attached.

I have now been directed by the Federal Executive to summon you, H. Shooter, to a meeting of the Federal Executive commencing 11.00 a.m., on Tuesday, 1st May, 1979, in the Oriental Room, Carlton Rex Hotel, No.56 Castlereagh Street, Sydney, New South Wales, to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not be expelled from membership of the Union pursuant thereto.

You will be given the fullest opportunity to present your case and may bring any member of the Union as a witness.

(sgd) G. CRAWFORD"

These letters with the respective charges attached were forwarded to the home addresses of all the officers other than Mr Waters by certified mail on 10 April 1979 and copies thereof in separate envelopes addressed to each member were hand delivered to the office of the Sydney Branch of the organization on that day.

By rule to show cause granted on 31 May 1979 in matter N.S.W. 19 of 1979 the claimant Robert Arthur Cook, a member of the organization and the Chairman of its Sydney Branch, sought orders pursuant to s.141 of the Act that the respondents G. Crawford, G.L. Smith, S. Mutton, R. Fairweather, R. Hevey, T. Bourke and R. Masterson being members of the Federal Executive perform and observe the rules of the organization by treating as null and void resolutions of the Executive adopted on 2 May 1979 purporting to expel from membership of the organization the five named members of the Sydney Branch and dismissing those five members from their respective offices and further that the said respondents recognise the said five members as the holders of their respective offices on grounds that r.13(6) and r.36(10) (d) of the rules of the organization were invalid and on the further ground that each of the five members had been denied natural justice by members of the Executive who heard the charges.

The affidavit of Mr Cook sworn 31 May 1979 and filed in support of the said order nisi alleged (1) that the procedural steps provided for in the rule amending rule of the rules of the organization had not been complied with prior to the adoption by the rule-making body, the Federal Council, of rr.13(6) and 35(10) (d): that the sub-rules providing for such steps were mandatory and the failure to observe them effectively invalidated rr.13(6) and 35(10) (d): (2) that r.35(10) (d) (iv) was contrary to s.140(1)(a) of the Act, being contrary to the provisions of s.144 and that such sub-rule was also contrary to s.140(1)(c): (3) that the Executive that dealt with the five applicants was invalidly constituted because its members had been elected by and from a Federal Council of the organization which itself was invalidly constituted under r.21 as that rule provided for a Council that was "grossly undemocratic and unreflective of the membership" of the organization. Accordingly it was claimed that the rule constituting the Council (r.21(1)) and the rule constituting the Federal Executive (r.35(1)) were contrary to s.140(1)(c) of the Act: and (4) that the charges laid purported to be laid pursuant to r.35(d) and that no such rule existed at the relevant time.

Further, particulars of the allegation that the five applicants were denied natural justice were given. Such particulars alleged that the claimants had not been given adequate particulars of the charges laid against them, that they had been denied an adjournment of the hearing of the charges when requested; that the Executive or some of its members were biased against them or alternatively that there were reasonable grounds for suspicion of bias; that the evidence before the tribunal was such that no reasonable tribunal acting honestly could find the charges to be proved and further that no reasonable tribunal acting honestly could find that such charges or the evidence in support of those charges constituted gross misbehaviour or gross neglect of duty such as would justify dismissal from office within s.133(1)(f) of the Act or within the purported rules of the organization.

The said rule to show cause was made returnable for directions hearing on 11 June 1979 when Mr Cook and the first respondent Mr G. Crawford, General Secretary of the organization, were each represented by Counsel. Certain directions setting out a timetable for the filing of points of claim and points of defence, mutual discovery and interrogatories were given so that Mr Cook had to file any affidavit in reply on or before 31 July 1979. Accordingly a date early in August for the hearing of the matter could have been granted but at the request of Counsel for Mr Cook 3 September 1979 was set for the hearing of the matter. Liberty was granted to all parties to apply to the Court for further orders or directions on 48 hours notice.

On 27 June 1979 in matter V.23 of 1979 Mr Crawford was granted a rule to show cause pursuant to s.141 of the Act calling upon certain respondents including Mr Cook, the first applicant in matter N.S.W. 19 of 1979, and nine other named respondents (being the holders of various offices in the Sydney Branch of the organization other than the five members referred to above) to show cause why certain orders should not be made giving directions to those respondents to perform and observe the rules of the organization by (a) constituting a meeting of the Committee of Management of the Sydney Branch of the organization and for that meeting to appoint a member of the Branch eligible to nominate for the office of Branch Secretary in accordance with the rules to carry out the functions of the office of Branch Secretary; (b) paying or causing to be paid into the Head Office of the organization Branch contributions for the financial period ending 31 March 1978 and 31 March 1979; (c) ensuring that the person appointed to carry out the functions of Branch Secretary of the Sydney Branch comply with the provisions of r.42 of the organization by forwarding a duly audited and signed statement for the said two financial periods and (d) making available to a nominated chartered accountant all books of account etc. of the Branch for the purpose of enabling the same to be audited in accordance with a particular resolution of the Federal Executive passed on 1(sic) May 1979.

The return date shown in such rule was 16 July 1979 which date was stated to be the date on which directions would be given and a date set for the hearing of the matter.

Further on 27 June 1979 an application, numbered V 24 of 1979, was filed pursuant to s.171C of the Act on behalf of the organization and Mr Crawford and others. This application sought orders, assuming the Court found that invalidities within the meaning of Part IX A of the Act had occurred in the making or alteration of certain rules of the organization or in the management or administration of the organization or in an election or appointment in the organization validating (a) certain rule amendments; (b) certain elections within the organization; (c) the refusal of the Executive to grant to the said five members of the Sydney Branch an adjournment of the hearings before it on 1 May 1979 and (d) the resolutions adopted by the Executive on 2 May 1979 relating to the expulsion from the organization and the dismissal from office of the said five members. The said application was also made returnable on 16 July 1979.

On these two matters coming on for directions hearing on 16 July 1979 Counsel for Mr Cook the original applicant in matter N.S.W. 19 of 1979, then pointed out to the Court that two applications in matter N.S.W. 19 of 1979 dated 4 July 1979 had been made returnable for 24 July 1979. These two applications were of course not listed before the Court on 16 July 1979.

The first was an application by Ulich Colin Bignell and Harold Shooter for an order that they be added as applicants in matter N.S.W. 19 of 1979. In the second application dated 4 July 1979 the applicants sought interim orders pursuant to s.141(2) that, pending final hearing of the rule to show cause, the respondents perform and observe the rules of the organization by treating as null and void the resolutions of the Federal Executive of 1 and 2 May 1979 purporting to expel the said five members from membership of the organization and dismissing them from their respective offices in the Sydney Branch and that the respondents take no step or action pursuant to the said resolutions and for a further interim order that pending the hearing of the proceedings the respondents recognise the said five members as being the holders of their respective offices in the Sydney Branch.

The Court at the request of Counsel fixed these two applications for hearing on 10 August 1979 and otherwise stood all matters over to 3 September 1979. On 10 August 1979 Mr McAlary Q.C. and Mr Shaw appeared for Messrs Bignell and Shooter and for Mr Cook, the applicant in matter N.S.W. 19 of 1979 whilst Mr Laurie Q.C. and Mr Gray appeared for the respondents other than the last named respondent, Mr R. Masterson. Mr Kenzie of Counsel appeared for that respondent, who is the Secretary of the Newcastle Branch of the organization. Those Counsel also appeared for their respective clients in matters V.23 and 24 of 1979.

The respondents consented to the adding of Mr Bignell and Mr Shooter as applicants in matter N.S.W. 19 of 1979. Mr McAlary sought leave to add the organization as a respondent to those proceedings as certain certified rules of the organization were being challenged in the proceedings. In view of s.141(8A) of the Act it was ordered that the organization be added as a respondent. Mr Laurie then appeared for the organization.

After legal submission the said application for interim orders under s.141(2) was refused on 13 August 1979 for reasons which the Court has already published (14 September 1979). All matters were then stood over for hearing on 3 September 1979.

On 22 August 1979 a further application (N.S.W. 28 of 1979) was filed pursuant to s.150 of the Act on behalf of the organization. Messrs Bignell, Shooter, Cummins, Tyler and Waters were named as the respondents therein. This application was made returnable before the Court for directions on 3 September 1979 the date on which the three earlier matters had been fixed for hearing.

On 3 September 1979 all four matters were called on. Mr McAlary sought leave, which was not opposed, to add Messrs Tyler and Waters as applicants in matter N.S.W. 19 of 1979. He further sought an order pursuant to 0.29 of the Federal Court Rules that the Court make an order for the decision of a separate question as a preliminary point in matter N.S.W. 19 of 1979. At this stage Mr Laurie made application which was supported by Mr Kenzie for the four matters to be heard together. Mr Laurie's application was opposed by Mr McAlary.

On 4 September 1979 the Court, for reasons then given, determined that in the circumstances of the case it did not have the power to make any order for the hearing of the particular preliminary point and indicated that, assuming such power, it would not in the exercise of its discretion make such an order. The Court further ordered that N.S.W. 19 of 1979, V. 23 and V.24 of 1979 be heard together for reasons which the Court then gave and that matter N.S.W. 28 of 1979 be heard separately. Directions as to the filing of points of claim and points of defence were then made in matter N.S.W. 28 of 1979.

Subsequently it was clear from the points of defence filed by the respondents in NSW 28 of 1979 that it was claimed that s.150 of the Act was invalid in that it purports to confer upon the Federal Court of Australia jurisdiction and powers outside the judicial power of the Commonwealth. On 14 September 1979 the Court, pursuant to 0.51 of the Federal Court Rules, directed the solicitor for the respondents to give appropriate notice to the Attorneys-General both for the Commonwealth and the State of New South Wales (0.51 r.2) and stood the matter over to 8 October 1979. On the matter coming on for hearing on that date appearances by the Attorneys-General were noted and the matter was then by consent stood over generally to be restored by any of the parties on 14 days notice to the Court and to the other parties and to the Attorneys-General.

The taking of oral evidence in the other three matters commenced on 4 September 1979 and continued through to 14 September when it was indicated that further evidence, possibly occupying several weeks, was to be called.

The matters next came on for hearing on 5 November 1979 when Mr McAlary again moved in matter N.S.W. 19 of 1979 by way of a fresh Notice on Motion dated 11 October 1979 for interim orders under s.141(2) identical to those orders sought in the application dated 4 July 1979 which had been refused on 13 August 1979. After hearing further evidence on the fresh motion the Court, on 7 November 1979, refused to make the interim orders sought for reasons then given.

Thereafter both oral and documentary evidence was tendered by all parties on numerous hearing dates between 5 November 1979 and 18 March 1980. Final submissions by Counsel for all parties other than Mr Masterson were made between 14 April 1980 and 9 May 1980 when the Court reserved its decision in all three matters.

The Organization and its Sydney Branch and its Newcastle Branch

The organization has been registered under the Act since 1911. During relevant times it has had branches in each State. Up until 1954 there was but one branch in New South Wales which had been for many years styled "The Plumbers and Gasfitters Employees' Union of Australia, Sydney Branch". The rules until 1977 have impliedly provided that the Sydney Branch, like certain other branches in other States, was to be known as the "Central Branch" in New South Wales. Further, the rules have impliedly provided for the creation of additional branches or sub-branches within a State.

Sometime prior to 1954 a sub-branch had been created in New South Wales at Newcastle. That sub-branch became a full branch in 1954. Mr Masterson became the part-time Secretary of the sub-branch in about 1952 and became its full time Secretary in 1954 and has held that office since that time.

Since at least 1976 the Newcastle Branch covered a defined area which for practical purposes extended north from the northern shore of Broken Bay to the Queensland border and west from the coastline to the railway line running from Singleton through Gunnedah, Moree and Mungundi. (see r.47)

Prior to 1975 the Newcastle Branch had no representative on the Federal Council. Sometime prior to the Federal Council Meeting in 1975 the rules of the organization had been amended so that Newcastle Branch was to have one such representative and in fact Mr Masterson attended the 1975 Council Meeting as that representative. Since then the Newcastle Branch has had the one representative on Federal Council.

Federal Council of the Organization

At all relevant times the supreme control of the organization has been vested in the members of the organization. Subject thereto the supreme control has been exercised on behalf of the members by a Federal Council. During the years between 1975 and 1978 the Federal Council consisted of two representatives from each State, excepting the State of New South Wales, which State had three representatives, two from the Sydney Branch and one from the Newcastle Branch. (r.21 formerly r.23 prior to 1976; r.22 from 1976-1978). Both the 1978 and 1979 Federal Councils adopted further amendments respectively to r.21 (certified 18 January 1979) and r.25 relating to the voting power of branches at Council (certified 18 December 1979). The 1978 amendment made provision for three delegates from Victoria whilst the 1979 amendment introduced a weighting of votes. Rules relating to the voting power of branches at Federal Council at different relevant times are discussed later herein.

The Federal Executive who heard charges

At all relevant times the rules of the organization have provided that between meetings of the Federal Council all business shall be transacted by a Federal Executive. During the years 1975 and 1978 the Executive consisted of members elected by and from the Federal Council. Amendments to the rules adopted by the Federal Council at its meeting in August 1978 and certified on 18 January 1979 have altered the constitution of the Executive but such amendments did not become effective in this regard until after May 1979 and are accordingly irrelevant to this issue. (see present r.35 and r.21A)

The members of the Executive who heard and determined the charges laid by Mr Masterson on 1 and 2 May 1979 were Messrs Fairweather (South Australia), Mutton (West Australia), Hevey (Tasmania), Bourke (Queensland), Rutherford (proxy for Mr Smith - Victoria). The remaining members of the Executive at that time were Mr Bignell (Sydney Branch) and Mr Masterson (Newcastle Branch). All such members had been elected in September 1977 in accordance with the then rules of the organization.

Also present at the meeting of the Executive on 1 and 2 May 1979 was the General-Secretary of the organization Mr Crawford who, on the evidence (which is accepted) did not vote on any resolution concerning any of the charges. As General-Secretary he had a duty to attend all meetings of the Executive although at all relevant times he was not a member thereof. (see r.32(4)(b)).

Mr Masterson attended the meeting to present the charges against the five members. During the hearing of these matters he has been referred to as "the prosecutor" and all documents and statements included in what has been called "the prosecutor's brief" have been tendered. After presenting his case to the Executive and making what might be called his final submissions he left the room whilst the Executive members deliberated. After such deliberation the formal resolutions dealing with the determinations made by the Executive in respect of each of the persons charged were drawn up in the absence of Mr Masterson. Such resolutions are set out in the minutes of the meeting which were tendered in evidence.

The State Union

On 3 September 1918 a trade union registered under the Trade Union Act (NSW) 1881 styled "The New South Wales Branch of the Australian Plumbers' and Gasfitters' Employees' Union" was registered as an industrial union of employees' under the Industrial Arbitration Act (NSW) 1912.

The application for such registration, dated 23 October 1917 shows that the trade union "was established on 20 July 1915; registered as a trade union under the Trade Union Act on 14 March 1916; registered by amalgamation with the Operative Plumbers Society of New South Wales on 6 November 1916". Lodged with such application was a copy of the General and Branch Laws of "The Australian Plumbers and Gasfitters Employes'(sic) Union" registered under the Conciliation and Arbitration Act 1904 which had been adopted in October 1911 and amended in October 1912, October 1913 and October 1915. Such rules were then apparently accepted by the Registrar of Trade Unions (NSW) (Registry of Friendly Societies of New South Wales) as the rules of the State trade union then registered. The certificate of registration issued by the Industrial Registrar dated 3 September 1918 has been endorsed over the date 1 April 1930 as follows: "The change of name of The New South Wales Branch of the Australian Plumbers' and Gasfitters' Employees' Union Industrial Union of Employees to The New South Wales Branch of the Plumbers and Gasfitters Employees' of Australia was duly recorded by me this day in the Register of the Industrial Unions pursuant to s.8 of the Industrial Arbitration Act 1912 as amended by s.2 of the Industrial Arbitration (Further Amendment) Act, 1918".

The name of the State union remained the same until 31 August 1978 when a name change was registered under both New South Wales Acts to "The New South Wales Plumbers and Gasfitters Employees' Union". At this time a new set of rules were filed with the New South Wales Industrial Commission (Ex. 12). Reference to such rules is made later herein.

Matter NSW 19 of 1979

The points of claim filed in this matter, including the additional points filed on 30 August 1979, repeated the claims relied on in Mr Cook's supporting affidavit of 31 May 1979 together with further particulars of failures to comply with certain rules providing for rule amendments and a claim that the rule amendment rule as amended by Federal Council in September 1977 (formerly r.28 then re-numbered r.27) was contrary to s.140(1) of the Act.

The applicants' challenge in this matter was basically four-fold, namely: (1) that either or both rr.13(6) and 35(10)(d) were on 1 and 2 May 1979 invalid; (2) that the Executive Council of the organization at that time was invalidly constituted; (3) that the charges were purportedly laid under r.35(d) of the rules and no such rule then existed and (4) that the applicants were denied natural justice. It is proposed to deal with each of these four challenges separately.

1. Claim that rr.13(6) and 35(10)(d) invalid

The rules of the organization were amended by the adoption of amendments to rr.13(6) and the then r.36(renumbered r.35) by the Federal Council at its meeting on 8-10 August 1978. Such amendments were certified by the Registrar pursuant to s.139(4) of the Act on 18 January 1979 as being, in his opinion, not contrary to provisions of the Act or the regulations and that those amendments had been made in accordance with the relevant procedures laid down by the rules of the organization. Section 157 of the Act provides that in all proceedings under the Act a copy of the rules of an organization certified by the Registrar to be a true and correct copy shall be prima facie evidence of the rules of that organization.

The applicants' challenge to the validity of both rules was three-pronged: (A) that proposals to make such rules had never been validly placed before the 1978 Federal Council meeting for consideration; (B) if it were determined that such proposals had been validly placed before that meeting, then that Federal Council was invalidly constituted and the adoption by it of the rule amendments was invalid; and (C) that if it were determined that the two rules had been validly adopted by the 1978 Federal Council, then it was claimed that such rules were contrary to s.140(1)(a) and (c) of the Act.

The respondents' defences to such claims are considered in the following discussion in respect of each of the applicants' three claims.

(A) Applicants' claim that proposals to make both rule amendments not validly before the 1978 Council as r.28 not complied with

In answer to this challenge the respondents claimed:

(i) that such proposals had been validly raised before the 1978 Federal Council pursuant to an express general power in the Federal Council to make or amend the rules of the organization in accordance with r.27(5) as certified by the Registrar on 1 February 1978;

(ii) alternatively, the respondents claimed that if the Court determined that the 1978 r.27(5) was invalid or that such sub-rule did not give an express general power to the Council to make or amend rules then the adoption by the 1978 Council of both rr.13(6) and 35(10)(d) resulted from proposals set out in a document referred to as document R. Such proposals, it was claimed, were the result of the redrafting and renumbering of certain rules which had been certified following the 1975 and 1977 Federal Council meetings so as to incorporate in such redrafted rules the substance of such earlier certified rules left unaffected by the substance of amendments validly proposed by branches in 1978 for consideration of the 1978 Federal Council together with the substance of such 1978 branch proposals.

Such redrafted and renumbered rules had been prepared as proposed amendments to the rules to be considered by the 1978 Federal Council meeting and incorporated in document R. The proposals in such document, copies of which were made available to Federal Council members present at that meeting, were then fully explained to those members by the Solicitor for the organization.

and (iii) that in any event the adoption of such amendments by the 1978 Council was valid pursuant to provisions of s.171B of the Act.

(i) Respondents' claim that proposals to amend rr.13(6) and 35(10)(d) made under an express general power given to Council by r.27(5)

The applicants had originally claimed that neither rule amendment had been validly adopted by the 1978 Council as the procedural steps provided for in the rule amending rule (r.28) considered in Roots -v- Mutton & Ors (1978) 32 F.L.R. 15 for placing proposed rule amendments before the Federal Council had not been complied with. In that case the Court was considering r.28 as certified during the period October/November 1977. Rule 28 then read:
"28. Amendment to Rules

1. The Rules of the Union shall not be amended except on a resolution carried by a majority of the Council.

2. Any member desiring to submit to the Council any proposal to amend the Rules must first submit such proposal to the meeting of his Branch specially convened for the purpose.

3. If such proposal be approved by a majority of the members present at such meeting it shall be forwarded to the Head Office for submission to the Council.

4. The General Secretary shall prepare an agenda of any such proposals and forward copies of same to all Branches, not less than six (6) weeks prior to the Council meetings to which such proposals are submitted.

5. The Council may at any time make or amend any Rules so that the Rules of the Union may comply with the requirements of the Commonwealth Conciliation and Arbitration Act, or any similar State Act."

The Court in that case held that on its proper construction r.28 as set out above conferred upon the Federal Council an implied general power to amend the rules in accordance with the procedural requirements prescribed by that rule and that such procedural requirements were to be construed as mandatory.

But r.28 had itself been amended before 8 August 1978, the date of the commencement of the 1978 Federal Council Meeting, by deleting from sub-r.(5) all words after "Rules" where first appearing in the sub-rule and re-numbering the rule r.27. Rule 27(5) then read: "The Council may at any time make or amend any Rules". ("the 1978 r.27(5)"). This amendment was adopted by the Federal Council meeting held on 19-23 September 1977 and was certified by the Registrar on 1 February 1978.

When the fact that the old r.28(5) had been so amended was appreciated by the applicants leave was granted to them to file and serve additional points of claim. Such points of claim alleged that the amendment to old r.28 as certified on 1 February 1978 was invalid because (a) there was no "validly convened specially summoned meeting" of any branch which proposed such amendment and accordingly there was no valid proposal in this regard from any branch of the organization before the 1977 Federal Council meeting. (It is to be noted that the description of the meeting referred to in the points of claim and quoted above is different to that referred to in sub-r.(2) of the old r.28.); (b) the 1977 Federal Council was invalidly constituted and accordingly could not validly adopt such amendment; and (c) if it was found that such Council was validly constituted and that the 1978 r.27(5) had been validly adopted by that Council then such sub-rule contravened s.140(1) of the Act.

(a) Applicants' claim that proposed amendment to r.28(5) not validly before the 1977 Federal Council

The respondents led evidence, which is accepted, that the proposal to amend r.28(5) as adopted by the 1977 Federal Council was placed on the agenda of rule amendment proposals prepared by the General Secretary for consideration by that Council and that the agenda had been forwarded to all branches in accordance with the then r.28(4); that the proposal had been forwarded in accordance with r.28(3) to the Head Office for submission to the Council after it had been approved by a majority of the members of the South Australian Branch of the organization present at a meeting held by that branch on 15 June 1977; that notice of the proposal to amend r.28(5) by deleting all the words after the words "The Council may at any time make or amend any Rules" was given to the members of the South Australian Branch in a bulletin forwarded to them by Mr Fairweather, the then Secretary of the Branch, on 10 June 1977; that such bulletin on its front page clearly showed under a heading "Annual General Meeting" the time, place and date of such meeting as Wednesday, June 15, 1977, Union Office, Trades Hall, Adelaide, 7.30 p.m. and that clearly listed amongst the business to be dealt with was "Proposed Rule Changes"; and that on the second page of the bulletin the proposed rule amendments including the amendment to r.28(5) were set out in full.

Rule 60 of the then certified rules of the organization made provision for branch meetings. Sub-r.(3) of that rule provided that the Annual Meetings for the reception of the balance sheet and financial statement shall be held on the last meeting night of June each year. Sub-r.(4) provided that notice of all Special or General Summoned Meetings shall be given by summon notice forwarded at least two days prior to the time of the meeting to each member to the address last recorded by the Secretary.

I am satisfied on the evidence that at least two days notice of the particular meeting held on 15 June 1977 was given to the members of that branch. Further I am satisfied that the particular meeting was a meeting of the South Australian Branch of the organization specially convened for the purpose of considering the proposal to accordingly amend r.28(5) within the meaning of the then r.28(2) especially when one considers the varying descriptions of meetings referred to in the rules of this organization at that time. (cf. the then rr.27, 44(1)(b), 47(2), 48(1)(b) and (c), 51(1)(viii), 60(4) and (5) and 65(4)). The then sub-r.28(2) did not, in my view, restrict the purpose of the meeting referred to in the sub-rule to one particular purpose and no other. A meeting is specially convened for any purpose set forth in the notice convening it. The sub-rule does not provide that the meeting which is to consider proposals for rule amendments can not also be specially convened for some other purpose, for example, for the reception of the balance sheet and financial statement of the branch. The fact that the meeting was entitled in the notice summoning the meeting, "Annual General Meeting", does not mean that it was not a meeting specially convened for certain purposes including the purpose of considering rule amendments. In this particular case the notice had clearly indicated the nature and intent of the business to be considered at the meeting and in regard to the proposed rule amendments clearly set out such proposals in detail.

Accordingly in my opinion the procedural steps provided for in the then r.28 were complied with and the relevant proposal to amend r.28 was validly before the 1977 Federal Council. The certification of such amendment and the re-numbering of r.28 to r.27 by the Registrar pursuant to s.139(4) on 1 February 1978 meant that such rule then became effective.

Having so determined that the proposal to amend the old r.28(5) was validly before the 1977 Federal Council then it follows that no invalidity within the meaning of s.171C of the Act occurred in the proposal to make such amendment and it becomes unnecessary to make any determination in this regard under that section in matter V. 24 of 1979. But should it be determined that the meeting of the South Australian Branch of the organization held on 15 June 1977 was not a meeting specially convened for the purpose of considering the proposal to so amend the then r.28(5) prior to forwarding same, if approved, to the 1977 Federal Council meeting with the result that an invalidity within the meaning of s.171C(i) occurred in the making of the amendment to r.28(5) then, assuming that the 1978 r.27(5) was not contrary to s.140 of the Act, I would have been satisfied on the evidence that, in the exercise of the Court's discretion, an order should have been made under s.171C(2)(a) validating such amendment. The evidence, in my view, shows that it is clear that no member of the South Australian Branch would have been misled as to the intention that rule amendments, including the proposed amendment to the then r.28(5), were to be discussed at the particular meeting.

The respondents further claimed that the act of the 1977 Federal Council in adopting the amendment to old r.28 by deleting those words in sub-r.(5) referred to above and the renumbering of the rule to r.27 was in any event valid by and under the provisions of s.171B of the Act. Even if this be so, (and I express no opinion in this regard) then the respondents can not rely upon that section in this proceeding.

Section 171B is in Part IX A of the Act which was inserted in 1974. The section provides that, subject to the section, "acts" done in good faith by a collective body such as the Federal Council of the organization or by persons holding office therein shall be valid notwithstanding any invalidity afterwards discovered in the election of the collective body or any member thereof or the election of the person purporting to hold office or in the making or alteration of a rule of the organization. However sub-s.(6) of s.171B provides that nothing in the section validates the expulsion of or the imposition of a penalty on a member of an organization which would not have been valid if the section had not been enacted. The Court has held that the removal or dismissal of an officer on grounds going to his conduct or for alleged breaches of rules and of his duties to the organization is clearly the imposition of a "penalty" and that the use of the word "member" in sub-s.(6) does not mean that the protection given by the sub-section does not extend to an officer of the organization or a branch thereof assuming that the officer is a member of the organization (Egan and Davis -v- Harradine & Ors (1975) 6 A.L.R. 507 @ 541-2). Consequently it is unnecessary for the Court to express a view whether the proposing and adoption of a rule amendment by a rule making body of an organization is an "act" within the meaning of s.171B of the Act (cf.Morris -v- Wood (1975) 8 A.L.R. 342 @ 344 and 346 regarding an "election" referred to in that section of the Act.).

(b) Applicants' claim that 1977 Federal Council invalidly constituted

The applicants' attack in this regard is based on the claim that the 1977 Federal Council as constituted by the then r.22 was "grossly undemocratic and unreflective of the membership" of the organization. That rule provided that the Council consist of two representatives from each State, excepting the State of New South Wales which was entitled to three representatives, two from the Sydney Branch and one from the Newcastle Branch. At that time the rules of the organization did not provide for any weighting of the votes of such delegates, the only relevant rule being the then sub-r.26(2) which provided that in the event of there being only one representative present at the Council Meeting from any State he shall be entitled to two votes.

The argument in this regard was based on the principles decided in McLeish -v- Kane & Ors (1978) 22 A.L.R. 547 (see also McLeish -v- Faure (1979) 25 A.L.R. 403; Luckman -v- Australian Postal and Telecommunications Union (1978) 28 A.L.R. 393, Crealy -v- Commonwealth Bank Officers' Association (1957) 1 F.L.R. 153, McKenzie -v- Administrative and Clerical Officers' Association 5 F.L.R. 342, Scott -v- Rolfe (1979) 36 F.L.R. 249 and Sheriff & Ors -v- Townsend & Ors (1980) 30 A.L.R. 223.

It is clear from those decisions that the answer to the question whether a rule or the rules of an organization making provision for the number of delegates to its Federal or national controlling body contravene s.140(1) of the Act is dependent not simply upon the number of delegates each branch of the organization is entitled to have as representatives on such body but is fundamentally a question whether the voting strength of such delegates at meetings of such a body fall within the spectrum referred to in McLeish -v- Kane. As was pointed out in that case, and repeated in the more recent cases referred to, the Court in determining whether a rule or the rules of an organization contravene the Act in this regard has to consider whether there is a disparity between, on the one hand, the number of members attached to a particular branch expressed as a percentage of the total membership of the organization and, on the other, the voting strength of that branch expressed as a percentage of the total voting strength of members of the body entitled to vote. If such a disparity exists which is too great or too uneven then it may be said that the voting strength of particular branches may be outside the spectrum referred to in those cases and so render a particular rule or the rules of that organization invalid as being contrary to the provision of that section.

But the Court can only make such a determination where there is evidence of the total membership of the organization and of the branches making up the organization at the time when its is claimed that such disparity existed. In the present case there is no acceptable evidence before the Court as to the total membership and the number of members attached to the various branches of the organization in 1977. In this regard the onus of proof rested on the applicants.

The only evidence before the Court as to what was termed "the precise figures as to the percentage membership" in the different branches of the organization is that for the year ended 30 June 1975. Those percentages are set out in para. 20 of the affidavit of the applicant Mr Bignell sworn 3 September 1979. Paragraph 19 of such affadavit states that "during the period of my association with the Union, the size of the different branches of the union has not significantly fluctuated. During most of this time the different branches of the union have contained the following approximate percentages of union membership". There is then set out a table of the various branches with a percentage shown against each branch.

Mr Bignell gave oral evidence during a period extending in all over eight hearing days. He was cross-examined by Counsel representing Mr Masterson and by Senior and Junior Counsel representing other respondents in this matter. I am not prepared to accept any evidence that Mr Bignell gave which is not corroborated by independent documentary evidence. His prevarication in answering questions in cross-examination which he apparently believed might be damaging to his case together with his demeanour clearly demonstrated that it would be unsafe to accept his evidence unless it was corroborated by acceptable evidence. It was apparent that he was a man with above-average intelligence, who, on appreciating that his answers to a line of cross-examination were such that it was only a matter of time before it would be patently clear that answers that he had given to obviously clear and unambiguous questions some hours or even days before could not be correct, would turn to the Bench, pause, give a pensive look and ask whether he had answered some nominated question in a certain way because he felt that if he had he must have then been confused either in his understanding of the earlier question or in his recollection of facts on which he had based his answer to that earlier question. This often repeated act, masterly performed, and his general demeanour in the witness box together with certain contradictions of factual matters from time to time have caused me to conclude that I should not accept his evidence.

Mr Crawford, who was the General Secretary of the organization at all relevant times, was called to give oral evidence in the proceedings on at least two occasions. No questions were put to him in cross-examination by Counsel representing the applicants in this matter as to the membership of the organization and its various branches at any time.

In my view the so called principle of the presumption of continuance does not apply, and indeed should not apply, in relation to the number of members belonging to an organization or its branches at any time subsequent to a certain period in relation to which evidence of such numbers is available which could reasonably be accepted, particularly where the period of time which has elapsed is two years or more.

This then means that there was no acceptable evidence before the Court as to the actual membership of the various branches of the organization at the relevant time. Consequently the applicants have failed to prove the existence of an imbalance in the voting strength of the branches at the 1977 Federal Council which fell outside the spectrum referred to and their claim that the 1977 Council was invalidly constituted fails.

Further, even if the approximate percentage of union membership as set out in para.19 of Mr Bignell's said affidavit which show some imbalance in the voting strength of some of the branches were accepted such imbalance, in my view, would not, when considered with other relevant rules of the organization in force in 1977, fall outside the spectrum. As was stated in McLeish -v- Faure @ 416, "the Court in its reasons for judgment in McLeish -v- Kane dealt in some detail with the vexed questions concerning the spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or members of federal bodies of organizations might validly range (and) the conditions under which a plebiscite of members might be sought on any matter together with rules generally providing for checks and balances." It is unnecessary to repeat those observations. The rules of the present organization have provided for a plebiscite during relevant times. Such rule has been the same for many years and certainly since 1975. (see 1975 r.28, renumbered r.27 in 1976, renumbered r.26 in 1977) The plebiscite rule provides that in case where the decision of the Federal Council or the Federal Executive is disagreed with by a majority of the members of any two branches in any two States, present at a meeting of the respective branches specially called for that purpose the question shall be submitted to a referendum of the members of the organization and the decision of those members at such referendum shall supersede the decision of the Council or the Executive. During this period the branch rules have provided that a branch Secretary (Chairman) shall convene a special summoned meeting of the branch at the written request of any number of members required to constitute a quorum at such meeting. At all relevant periods a maximum quorum at branch meetings was fifteen members.

Accordingly, the result of the combination of the plebiscite rule and branch rules making provision for the calling of branch meetings is that fifteen members in each of two States are able to requisition a special summoned meeting in each of those States to consider any decision of the Federal Council. If the decision is disagreed with by the majority of members attending each of the two branch meetings then there is an automatic referendum of the whole of the membership of the organization on that question. The result of such referendum is binding on the Federal Council. Consequently it is possible for sixteen members, eight in each of two States, to bring about a situation where such a referendum be held on any decision of Federal Council (see rr.60 and 65 of 1976 and 1978 rules and r.60 of 1979 rules). Such control by members of the Federal Council was, in my view, a proper check to any imbalance in the voting strength of certain branches at Federal Council at that time (re "Control"- see Boland & Anor. -v- Federated Liquor and Allied Industries Employees Union of Australia, Sweeney J., judgment 3 April 1979 (not yet reported) cited with approval by Evatt and Northrop JJ. in Boland & Ors -v- Munro & Ors, judgment 23 May 1980 not yet reported).

(c) Did the 1978 r.27(5) give the Federal Council an express general power to amend rules and, if so, was such sub-rule contrary to s.140(1)

I am satisfied that on its proper construction the 1978 r.27(5) conferred an express general power to make or amend the rules of the organization on the Council. In my view it was the intention of the draftsman when omitting the words from the old r.28(5) which read: "so that the rules of the union may comply with the requirements of the Commonwealth Conciliation and Arbitration Act or any similar State Act" that the express power which had been clearly given to the Council to make or amend the rules in order to attain compliance with legislative requirements should be extended so as to give the Council such express power in regard to rules generally.

In Roots -v- Mutton supra @ p.18 it was said that" the first thing to be noted about the provisions of r.28 is that they do not, in express terms, confer upon the federal council any general power to amend the rules. The provisions of sub-cl.(1) of r.28 are, in terms, prohibitory: the rules shall not be amended except on a resolution carried by a majority of the council. The following three sub-clauses of r.28 prescribe a procedure designed to lead up to the consideration by the council of a proposed amendment to the rules. Sub-clause (5) of r.28 dispenses with the need to comply with that prescribed procedure and confers an express power to amend when, and only when, the proposed amendment to the rules is in order to attain compliance with legislative requirements".

The removal of the qualification in the old r.28(5) brought about a situation that the sub-rule dispensed with the need that the procedures prescribed earlier in r.27 be complied with where and when the Council itself determined that a rule amendment should be effected. Members could still, if they so desired, submit proposals for rule amendments under and in accordance with sub-r.(2). In my opinion there is no vice in vesting in the body which exercises "the supreme control" of the organization (see r.22, 1976 rules renumbered r.21 in 1978 rules) an express general power to amend the rules of the organization especially where all branches are entitled to be represented on such body and where the rules themselves provide readily available controls by the members of the apparent unfettered power in the Council to amend the rules. It has recently been stated by the Court that "it is difficult to think of any subject matter more important in the affairs of an organization than its own legislative power". (see Australian Transport Officers' Federation -v- The State Public Services Federation, N.S.W. No.25 of 1980 - judgment 13 February 1981 - not yet reported). But, in my view, such power may, if the certified rules so provide, be exercised by the governing body exercising the supreme control of an organization under an express general power to amend its rules if that body is subject to adequate and readily available controls by the members. Neither the Act nor the Regulations made thereunder specifically require that proposed amendments or additions to the rules of any organization be first submitted to branches for their consideration prior to such amendments or additions being raised by way of proposals at a meeting of its rule making body. Reference has been made to the rules providing for the control of the Federal Council of the organization by the members earlier in these reasons and to the decision in Boland & Anor. -v- Federated Liquor and Industries Employees Union of Australia (supra) in this regard. Such rules, in my view, provide adequate control of both the Federal Council and the Federal Executive by the members of the organization.

It must be remembered that any proposal to amend rules that may be forwarded by a branch for consideration of the Federal Council does not have to be adopted by that body. The Council may if it so wishes adopt the substance of all or part of such proposal providing the overall substance in the full proposal is not thereby altered. Further, any amendment procedure carries with it an implied restriction that rules that do not conform with the Act shall not be adopted by the rule making body. (see Morris -v- Federated Liquor and Allied Industries Employees Union of Australia (1978) 21 A.L.R. 425 @ 434). Further, before any amendment becomes effective it must be certified by the Registrar pursuant to s.139(4) of the Act. The Registrar has power to refuse certification of any amendment to rules which, in his opinion, is contrary to the provisions of the Act or the Regulations or which has not been made in accordance with the procedures laid down by the rules. Even after an amendment to a rule is so certified a member has the right to challenge its validity in an application brought under s.140 or s.141 and the Court in such an application may make a declaration that such rule or part of such rule contravenes s.140(1). Such a declaration has the effect of rendering that rule void from the date of the order. (s.140(5G) and s.141(8A).). In such a case it is not the rule conferring an express general power to make and alter rules which is contrary to s.140(1) but only the invalid rule which the rule-making body has purported to make.

In all the circumstances I am of the view that the 1978 r.27(5) on its proper construction empowered the Federal Council of the organization to make or amend the rules of the organization without proposals for such amendments or alterations being first submitted by a member to his branch for consideration by that branch and being dealt with in accordance with r.27(2), (3) and (4). Further, in my view, such sub-rule was then not contrary to the provisions of s.140(1)(a) or (c) of the Act for the reasons expressed.

(2) Proposals raised pursuant to Document R

The respondents in this matter further claimed, that if it be determined that the Federal Council at its meeting held on 8-11 August 1978 did not have an express general power to amend the rules of the organization pursuant to r.27(5) then the proposals amending the rules which were adopted at that meeting were validly before the meeting in any event. Having determined that that Council did have an express general power to amend its rules it is unnecessary to make a determination on this aspect of the respondents' claim. However the matter having been fully argued it is considered that a view should be expressed concerning this claim especially in regard to the adoption of the amendments to rr.13(6) and 35(10)(d).

It is clear that at the time of the 1978 Council meeting the certified rules of the organization included amendments adopted by both the 1975 and 1977 Federal Councils. Other than the amendment to old r.28(5) by the 1977 Council which was certified on 1 February 1978, none of the rule amendments adopted by either the 1975 or the 1977 Federal Council have been challenged by the applicants herein. Further, no claim was made by the applicants that the 1975 Council was invalidly constituted. As I read the points of claim the applicants did challenge the constitution of the 1977 Council which challenge has been determined against them for the reasons expressed earlier herein.

Further, it has to be remembered that the 1978 Federal Council Meeting was a special meeting of Federal Council convened primarily to consider rule amendments following the decision of the Court in Roots -v- Mutton (supra) on 21 March 1978. The Court in that case stated that "the rules (of the organization) appear to be in a somewhat unsatisfactory state and will inevitably present further difficulties of interpretation both to members and officers and, in event of dispute, to the Court. It is clearly desirable that steps be taken, as soon as practicable to remove such difficulties".

After consultation between the President of the organization and the General-Secretary and on the advice of Mr Ryan, Solicitor of Ryan, Carisle, Needham and Thomas, solicitors for the organization a decision was taken by the Federal Executive in accordance with the then rules that a special Federal Council meeting be convened for 8 August 1978. Accordingly on 9 May 1978 all branch secretaries were advised by letter from the General-Secretary of the history leading up to the purported suspension of Mr Roots on 1 November 1977, the decision of the Court in Roots -v- Mutton and that a special meeting of Council was to be held on 8 August 1978 to consider rule amendments including amendments to the then r.36 dealing with the powers of the Federal Executive. Branches were requested "to hold special summoned meetings in accordance with the rules for the purpose of enabling any member through his branch to submit proposals to alter any of the rules" of the organization. The letter went on to point out that the holding of such branch meetings "will give every branch and all members of the union the opportunity to consider (for themselves) the unions rules and to make their recommendations for changes to them". The General Secretary in the last paragraph of his letter went on to say "I enclose for the use of the branch a copy of the rules of the union certified by the Industrial Registrar on 16 March 1978 and also a copy of the decision of the Federal Court in Root's Case."

Thereafter on 29 May 1978 at a special summoned General Meeting of the Melbourne Branch of the organization resolutions were passed adopting proposals for amendments to the rules including r.29 dealing with the dismissal of any officer or member of the Federal Council, r.21(3)(e) dealing with the power of the Council to remove any officer at any time in accordance with the rules and r.51 dealing with the removal from office of any branch officer. Such resolutions were forwarded to Head Office in accordance with r.27(3) and were included in the agenda for the meeting of Federal Council to be held on 8 August 1978.

Again on 24 May 1978 a special summoned meeting of the West Australian Branch of the organization was held. The minutes of that meeting show that a proposal was adopted "to amend r.36 and that such proposal be placed on the agenda for the special meeting of the Federal Council be held on 8 August". The proposed amendment to r.36 is then set out in full in the minutes and is in terms identical to those of r.36 as certified on 1 February 1978 following the 1977 Council Meeting. In addition that West Australian Branch Meeting passed a resolution as follows: "This meeting re-endorses the Federal Council's decisions for the alteration of rules carried at the 1975 Council Meeting held in Brisbane and the 1977 Council Meeting held in Newcastle. These rules to be forwarded to be included in the agenda of the August 1978 Council Meeting." Then set out in the minutes is a list of forty-six rule numbers and headings. These correspond with the amendments certified following the Federal Council Meetings in 1975 and 1977. Both resolutions were forwarded to Head Office pursuant to r.27(3) and later were incorporated in the agenda for the Federal Council meeting to be held on 8 August 1978.

The agenda for that meeting was tendered in evidence. In the introduction is set out the resolution carried at the special summoned meeting of the West Australian Branch referred to in the last paragraph above and a note which states: "Accordingly these said rule amendments have been put on the agenda in itallics for the convenience of Councillors, rule changes carried at special summoned meetings in different type". Included in such agenda was the proposal, set out fully, from the West Australian Branch that r.36 be amended. In addition to the said proposals from the Melbourne and West Australian Branches referred to, other proposals for rule amendments from the Melbourne Branch and other branches which are not relevant to the matter presently under discussion were set out in detail in the agenda.

Between the time of the compilation of the agenda for the 1978 Federal Council Meeting and the 8 August 1978, the commencing date of that meeting, a document was prepared in which composite proposals for rule amendments for the consideration of the Council were set out. This document is known as document R, reference to which has been made earlier herein. Included in those proposals were proposals to amend r.13 and the then r.36 in the form of the amendments to those rules (together with the renumbering of r.36 to r.35) which were subsequently adopted by Council on 10 August 1978 and certified by the Registrar under s.139(4) on 18 January 1979. Relevant parts of those two rules have been set out earlier herein.

The 1978 amendment to r.13(6)

Rule 13 of the rules of the organization which had been prior to 18 January 1979 headed "Fines and Charges" has since at least 1975 provided for the laying of charges by a member against another member alleging that that member has committed one or more of several specified offences set out in r.13(1). The rule lays down the procedure for the making of such charge in writing to the Secretary of the branch to which the member charged is attached, its hearing before the Committee of Management of that branch together with the right of appeal by either party from the decision of that committee to the Federal Executive or the Council held thereafter.

Prior to two amendments to r.13 adopted by the 1977 Council being certified on 1 February 1978, the only penalty provided for in the rule was a fine. The first of such amendments provided that in addition to such fine a member found guilty of such an offence could also be expelled from the organization. The other amendment added a sub-r.(6) to the rule which provided that any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President and in that case the charge was to be dealt with by the Federal Executive under "r.36.12". Sub-r.36.12 which was also adopted by the 1977 Federal Council and certified on 1 February 1978 gave the Executive the power to suspend from office or impose a fine upon any member who was found guilty of certain specified offences set out in sub-r.36.12.

The 1977 Federal Council further amended the rules by deleting r.20 which had provided for the expulsion of a member from the organization. Reference is made to that rule later herein when the history of the rules dealing with expulsion from membership is more fully considered.

The proposal before the 1978 Council to amend r.13 set out in document R commenced "that the present r.13 be deleted and the following new rule be inserted in lieu thereof". Thereafter the proposed new rule was set out under a new heading "Offences and Charges". The new rule was in the same terms as r.13 adopted at the 1977 Federal Council and certified on 1 February 1978 other than alterations which are now considered. Such proposal was adopted by the 1978 Federal Council and certified on 18 January 1979.

Although r.13 as adopted by the 1978 Council still only made provision for the expulsion of or the imposition of a fine on a member by the Committee of Management of the Branch to which the member was attached, the introductory words to such amended rule were altered to include a proviso to the effect that no member elected to an office shall be dismissed from any office unless he has been found guilty in accordance with the rules of any matter then set out, being matters identical to those referred to in s.133(1)(f) of the Act. Apparently such proviso was inserted to limit the penalty that might be imposed on a member who was the holder of any office within the organization to a fine only where the offence with which he had been charged was one set out in r.13 but was not one referred to in s.133(1)(f) on the basis that the imposition of a penalty of expulsion from membership upon such a member would necessarily carry with it a dismissal from such office and accordingly be invalid as being contrary to the rules and s.133(1)(f).

"Mr R. Masterson,
Secretary,
Newcastle Branch,
Plumbers & Gasfitters Employees' Union of Australia,

Dear Brother,

I hereby tender my resignation as a member of the Newcastle Branch of the Plumbers & Gasfitters Employees' Union of Australia.
Yours faithfully,"

It is obvious in my view that the forms were prepared for the use of the four applicants on their visits to sites within the Newcastle Branch area to obtain as many signatures as possible from members to resign from the organization. Further, I accept the evidence of the Newcastle members who have stated that they were informed by the particular applicant who spoke to them that first, if they were working under a State Award they should be members of the State Union only and secondly, when questions were raised by those members whether it would be necessary to pay contributions both to the Federal organization and to the State Union, that particular applicant would inform the member that they should resign from the organization to avoid double payment of contributions. The evidence of the applicants denying these facts is not accepted. I have had the advantage of seeing each of them when giving their evidence in chief and in cross-examination and it is clear in my view that each of them was less than frank on these matters.

In addition to having had the advantage of hearing the oral evidence of several members attached to the Newcastle Branch the Executive on 1 and 2 May 1979 had before it numerous letters from other members alleging similar conduct and statements by those four applicants.

Turning then to the applicants' claim that they were denied natural justice.

(i) Applicants' allegations that adequate particulars of the charges laid not given

Each of the charges forwarded to the particular applicant concerned gave the names of the members alleged to have been persuaded or encouraged or aided to resign from the organization, their place of employment, the period over which it was alleged that such persuasion etc. occurred together with the penalties sought.

I am satisfied that all the applicants other than Mr Shooter were aware of the charges against them on 10 April 1979. As regards Mr Shooter I am satisfied that he received his notice and charges on either 20 or 21 April 1979, but that he had before then spoken to Mr Bignell about the charges during a telephone conversation.

No further particulars were requested by any of the charged applicants until 1 May 1979, the date when the Executive met to consider the charges. That request was included in a letter dated 1 May 1979 which is fully set out later herein.

On 11 June 1979 the Court directed that further particulars be given by Mr Cook, the then sole applicant in this proceeding of the allegation set out in his affidavit of 31 May 1979 that the five charged Sydney officials had not been given adequate particulars of the charges laid against them. The only particulars filed thereafter by Mr Cook or by any of the five charged applicants are set out in the points of claim filed by the applicant following the making of the said direction by the Court (see para.5(b) of such points of claim) which simply refers to the said letter dated 1 May which each of the charged applicants handed to the Executive when they appeared before it on 1 May 1979.

None of the applicants has given evidence that he was hampered in the preparation of his defence before the Executive by the absence of the so-called particulars. Further, each admitted in cross-examination that he fully understood on 1 May 1979 what the charges meant.

I am satisfied that what the complaint about the lack of particulars was, was really a complaint that the applicants had not been supplied with the evidence that was to be produced to the Executive in relation to the said charges. It has been said that the rules of natural justice do not necessarily require that full particulars of charges need be given (cf. Canterbury Building Society -v- Baker (1979) 2 N.S.W.L.R. 265 @ 279.

I am satisfied that the applicants were given adequate particulars of the charges laid against them and this part of their claim is rejected.

(ii) Refusal by Executive to grant adjournment

In my view a Court when exercising what could be called a supervisory jurisdiction such as this Court is doing in this regard should only set aside a decision of a domestic tribunal such as the Executive herein to refuse the granting of an adjournment if the person charged has, as a result of such refusal, been deprived of a reasonable opportunity of answering the charge that is to be or is being put against him (cf. Burnbrae Farm Limited -v- Canadian Egg Marketing Agency (1976) 65 D.L.R. 3(d). 705 @ 713-4). If the person charged does not avail himself of an adequate opportunity of preparing his defence before the date set for hearing, then generally in my view, he can not rely on his failure to do so as a ground for an adjournment. There may be cases where this general rule should be relaxed but such cases would require evidence of special circumstances.

All the five members charged attended at the time and place set out in the respective charges and all produced a separate copy of a letter dated 1 May 1979 which on the evidence had been typed out earlier that morning in their solicitor's office.

In all cases other than Mr Bignell's the letter read:
"The General Secretary,
Plumbers' & Gasfitters' Employees
Union of Australia,
50-52 Victoria Street,
CARLTON SOUTH. VIC.

Dear Comrade,

I refer to your letter of the 10th April and the enclosed charge made against me by R. Masterson. I wish to object to the laying of this charge and to apply for an adjournment of the hearing of it upon the following grounds:-

1. There is no rule 35(d).
2. I am an elected officer of the Sydney branch of the union and I have not been charged under any other rule of the union which complies with the Act.
3. I deny that I am guilty of misconduct and that I actively persuaded, encouraged or aided members to resign from the membership of the union.
4. I deny the validity of all alterations to the rules purported to have been made since and including the 1975 conference and and/or council of the union.
5. I request all particulars as to the manner in which I am alleged to have carried out the actions referred to in the charge laid against me.
6. I require an adjournment in order to consider the particulars referred to above and to prepare my defence.
7. I have been given insufficient time to adequately prepare my defence.
8. I intend to challenge the validity of the rules referred to in your letter of the 10th April and the charge of the 30th March and I request an adjournment of the hearing of this charge until the validity of such rules has been decided by the court.
9. An up to date copy of the rules of the union incorporating the alleged amendments made since and including the 1975 conference has not been made available to me."

In the case of Mr Bignell's letter paras. 1. - 9. were identical to those set out above and in addition two further paragraphs were added. These read:
"10. In so far as I have failed to comply with any purported direction of the Federal Council, conference or executive I have done so in obedience and under directions given by the Sydney branch and/or its Committee of Management.
11. I further request an adjournment until my legal obligations in relation to my duties as an elected officer of the Sydney branch of the Union as compared with my obligations to comply with directions of the Federal Council or conference are clearly determined."

After being served with such notice and charges on the dates earlier referred to all the applicants other than Mr Bignell sought no real legal advice until 1 May 1977 when they all attended as a group at their solicitor's office some little time before the appointed time set for the hearing of the charges. Mr Shooter had at some stage made a statement to his solicitor but had done nothing more. On one occasion Mr Tyler attended with Mr Bignell at the solicitor's office but the evidence does not satisfactorily disclose the purpose of such visit. Apparently all Mr Bignell did during any visit to the solicitor's office during the period between 10 April and 1 May 1979 was "simply to mention the charges" to the solicitor.

None of the five charged applicants attempted to secure witnesses or prepare a case. Mr Cummins stated that he relied entirely on Mr Bignell whilst Mr Waters said that he left it in the hands of Mr Bignell and his solicitor.

In their respective affidavit of 3 September 1979 each of the charged applicants, except Mr Tyler, claimed that on 1 May 1979 he did not have a copy of the rules of the organization including the amendments made by the 1978 Federal Council and that at that date he was unaware of the terms of such amendments.

Mr Tyler had attended an Executive Meeting of the organization held at Brisbane on 13 February 1979. He was there given by Mr Crawford a re-print of the whole of the rules as certified on 18 January 1979 incorporating the amendments to the rules adopted at the 1978 Federal Council. Mr Tyler gave evidence before the Court that he had had discussions with Mr Bignell and his solicitors and others of those charged about those rules and particularly about their being no r.35(d). Further, the minutes of the Executive Meeting of 1 May 1979 discloses that he, not like the others who had been charged, did not complain about not having rules beforehand and it is noted that Mr Tyler struck out para.9. of his letter of 1 May 1979 when he signed it.

I am satisfied that Mr Tyler still had a copy of the rule book handed to him in Brisbane on 13 February 1979 when he became aware on 10 April 1979 of the charges laid against him. I have no doubt that he discussed the rules referred to in the charges with the other persons charged (other than Mr Shooter) on 10 April 1979 and that they all (including Mr Shooter) were aware of all certified relevant rules well before 1 May 1979. A perusal of the minutes of the Committee of Management Meeting of 7 and 20 February 1979 and the General Meeting held on that latter date, show that all five charged officials, perhaps with the exception of Mr Cummins, discussed at those meetings the rule changes which had been adopted at the 1978 Council Meeting. Mr Cummins admitted that prior to 1 May 1979 he had been told by Mr Tyler that there was no r.35(d) and simply left the matter to his solicitor whom he did not see until the morning of 1 May.

I am satisfied from the totality of the evidence in this regard that all the charged officials were aware of the particular rules in question well before 1 May 1979.

Looking at the five charged applicants' letters of 1 May 1979 it will be seen that they contained an objection to the laying of the charge and an application for an adjournment of the hearing on the grounds set out which, were the same. Obviously the grounds referred to in para. 1. - 9. could not be relevant to both the objection to the laying of the charge and the application for adjournment. But taking each paragraph seriatim; (1) and (2), I am satisfied that none of the officials charged were misled by the reference to r.35(d). Reference has been made to this ground earlier herein; (3) and (4), these clearly are not grounds for an adjournment; (5) and (6) these grounds are interwoven and have been dealt with earlier herein; (7), as stated above I am satisfied that all applicants charged other than Mr Shooter knew of the charges on 10 April 1979 whilst Mr Shooter had been verbally told of such charge shortly thereafter and in fact had received his notice together with the written charges no later than 21 April 1979; (8), the rule under which the five applicants had been charged namely r.13(6) and the reference to r.35(d) (a mistake for r.35(10)(d)) were a reference to certified rules of the organization which were then prima facie valid rules (see s.157 of the Act). In my view the applicants and any of them had had ample time prior to 1 May 1979, if they seriously wished to challenge the validity of the rules, to approach the Court seeking rules to show cause under either s.140 or s.141 of the Act; (9) this question has been dealt with earlier in these reasons.

In regard to Mr Bignell's letter of 1 May 1979 para. 10. thereof is not a relevant ground for an adjournment. I take it that para 11. was a back-handed sort of way of indicating that he, Mr Bignell, intended to challenge those matters in the Court. Here again I am also of the opinion that he had had ample time in which to seek a rule to show cause in this regard if he had really wished.

After reading and re-reading the evidence relative to the question of the applications for adjournment by each of the applicants charged, I have concluded that such requests adjournments were really contrived and were not genuine requests. Factors leading to this conclusion are that none of the officials charged made any real attempt to prepare a defence; none sought further and better particulars before 1 May 1979; the admitted or obvious agreement between them of the course which was to be taken before the Executive namely, the requesting of a rule book, the requesting of time to read the rule book, the drawing attention to the fact that no r.35(d) could be found in the rule book and requesting an adjournment by handing in his letter of 1 May 1979 and the walking out of the meeting if an adjournment was not granted.

Mr Cummins in his evidence admitted that he did tell the Executive after his application for adjournment was refused that he would remain if the other officials were allowed to be present. Both Mr Crawford and Mr Masterson gave evidence which is accepted that the other four officials charged had also made the same statement. In my view this admission by Mr Cummins and such evidence of Mr Crawford and Mr Masterson make it clear that the request for an adjournment for the reasons stated in the letter of 1 May 1979 was not a genuine application.

Further in my view in considering the question whether a refusal to grant an adjournment in certain circumstances is reasonable, it is valid for the Court to consider the expense, which in this case obviously would have been considerable, and the inconvenience of gathering the Executive in Sydney from all over Australia (cf. Ostreicher -v- Secretary of the State for the Environment (1978) 1 W.L.R. 810 @ 816.

In all the circumstances I am satisfied that the refusal by the Executive to grant an adjournment to any or all of the officials charged was not a denial of natural justice.

(iii) Applicants' claim that member(s) of the Executive biased

The test to be applied when determining any decision of a domestic tribunal of a Trade Union should be set aside on the ground of bias is, in my opinion, now established to be the test of the real likelihood of bias rather than the test of suspicion thereof (cf. Cains -v- Jenkins & Ors. (1979) 28 A.L.R. 219 and cases therein referred to, and Dale -v- New South Wales Trotting Club and Ors.(1978) 1 N.S.W.L.R. 551). What has to be shown is "invincible" bias; that is "a bias that is incapable of being remedied by reason or argument during the period up to the making of the tribunal's decision" (cf. Cains -v- Jenkins & Ors (supra) @ 227).

The bias alleged in the points of claim are (i) the relationship between the Sydney Branch officials and the respondents had been one of hostility and conflict. I am satisfied that the evidence in this regard goes no further than showing that there was a divergence of opinion between the Sydney officials and other Federal officials from other branches on industrial matters and that perhaps at times debates had become heated; (ii) the authorisation by certain members of the Executive and Mr Crawford of a report distributed within the Sydney Branch area supporting a candidate in the Sydney Branch elections. Such report which was included in a how to vote card which was clearly a "ticket" distributed some little time before the particular election, was critical of certain Sydney Branch officials. Such authorisation was freely admitted in evidence by those who supported the candidate in question. Clearly such allegation could not in my view support a conclusion of "invincible" bias.

The charged applicants in their affidavit, all sworn 3 September 1979, expanded the allegations of bias to include the fact that Mr Crawford and certain members of the Executive had visited Newcastle during the period referred to in the charges and had in fact addressed meetings in the area of the Newcastle Branch at which one or other of the persons charged was in attendance and further that Mr Masterson had had discussions with Mr Crawford and/or other members of the Executive concerning the charges between the date of the laying of the charges and 1 May 1979.

In evidence Mr Crawford stated that he had had about three telephone calls from Mr Masterson during the relevant period when Mr Masterson had indicated that he needed assistance and that he, Mr Crawford had personally gone to Newcastle members to assist Mr Masterson in addressing members of the organization in an endeavour to counteract what he, Mr Crawford, called false propaganda about industrial Award matters that the Sydney Branch officials were spreading. Mr Crawford in fact arranged for as many members of the Executive as possible to go to Newcastle to assist in the same way as it had become apparent to him that there was a concerted drive by the Sydney officials to get about within the area of the Newcastle branch addressing as many members of the organization as possible and discussing with them the question of these matters. Where such Sydney officials would be the next day was not known to the Newcastle Branch the day before. Throughout a particular day calls would come to the Federal Branch office in Newcastle from members seeking information concerning the visits of one or more of the Sydney officials. As such calls were received the Federal officials who were in Newcastle to assist would go out to reassure members that the Federal organization could and would look after their interests and inform those members that resignation from the Federal organization was not necessary even though they were employed under a State Award.

Mr Masterson gave evidence, which is accepted, that after laying the charges against the Sydney officials he had telephoned Mr Crawford in Melbourne to ascertain the result of the Executive plebiscite on the question whether a meeting to hear the charges would be held but otherwise had not discussed the proceedings with Mr Crawford.

In the "prosecutor's brief" referred to earlier herein were copies of letters written by certain members of the Executive to the Deputy Premier of New South Wales and the Minister for Public Works in that State complaining about a proposed appointment of Mr Bignell to the Registration Board for Plumbers, which Board was being set up (or consideration was then being given to it being set up) by New South Wales legislation. The evidence was that such representations were made by certain members of the Executive against Mr Bignell being so appointed as he was not himself qualified as a plumber. It was then and still was at the date of the hearing of this proceeding the belief of Mr Masterson and those members of the Executive who gave evidence that plumbers should have a representative on such Boards but that such representative should be a qualified plumber. This evidence again does not support any allegation of bias in my view.

Not all members of the Executive who heard and determined the charges against the five applicants herein gave evidence before the Court. In my view the present case is not a case where prima facie bias has been shown against any of the five applicants by any member of the Executive who did not give evidence. In this regard Cleworth -v- Barrow & Ors (supra) is distinguishable. Nor is the present case one where it could be suggested that all members of the Executive who heard and determined the charges should have necessarily been called to give evidence before the Court.

There was evidence that following the Court's decision in Roots-v-Mutton (supra) Mr Crawford and other Federal Executive members had obtained legal advice concerning the conduct of meetings where charges were to be heard. Such legal advice was obtained as a result of comments made during the hearing of that case. Mr Crawford, Mr Bourke and Mr Fairweather gave evidence which clearly showed a profound understanding of the principles of natural justice concerning a hearing before a domestic tribunal within a Trade Union.

In all the circumstances I am satisfied that none of the applicants were denied natural justice. The minutes of the Executive Meeting show that even though the matter proceeded in the absence of the Sydney officials charged there was obvious care by the prosecutor, Mr Masterson to avoid any suggestion that he took part in any deliberation concerning the guilt or otherwise of the applicants or in the drawing up of each of the resolutions setting out the findings and penalty imposed in respect of each official charged. Such minutes show that the Executive dealt with each case individually not only as to evidence concerning the guilt or otherwise of the person charged but also after finding a particular member guilty the question of the appropriate penalty in respect of that person.

During the hearing of this matter several witnesses were called to give evidence of events supporting the charges. Lengthy cross-examination of those witnesses took place. Further each of the five charged applicants was cross-examined at length concerning the events referred to in the summary of the history set out earlier herein together with other incidents far too numerous to detail in these reasons. At times the Court had the impression that an attempt was being made by the applicants during the proceedings to have the charges reheard by the Court. As was pointed out by the Court in Cleworth -v- Barrow & Ors (1978) 20 A.L.R. 359 @ 369 "on any hearing by the Court of proceedings such as the present the Court considers whether reasonable men acting honestly could have come to the decision that the domestic tribunal did (Bowen's Case (supra) @ 615). If the domestic tribunal could have so found, then the Court will not interfere with the finding of that tribunal unless there has been a denial of natural justice".

If the relevant test was that the charges had to be proved by Mr Masterson to the satisfaction of the Court then I would have been so satisfied. But as was stated by Dixon J. (as he then was) in Bowen's Case (supra) @ p.628:
"It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive."
In interpreting the charges the Federal Executive was in my opinion not bound to take the view that it had to be proved that any particular member had actually resigned in consequence of what was said by any of the charged officials. It was open to the Executive to take the view that a request to resign accompanied by the making available of the ronoed form referred to was persuading, encouraging or aiding for the purposes of the charge. There was ample evidence against the four applicants who visited Newcastle which satisfied the charges so interpreted and likewise in regard to the first charge laid against Mr Bignell.

In my view in all the circumstances it was open to the Executive to hold that the charges as proved constituted a failure to comply with the rules or implied rules of the organization and constituted gross misbehaviour within the meaning of s.133(1)(f). Further in my opinion it was open to the Executive in all the circumstances to impose the penalties that in fact were imposed in each case. The concept of gross misbehaviour connotes a marked departure from the standards by which responsible and competent union officials habitually govern themselves. The best judges of the requirements of such standards and the degree of departure therefrom were the members of the Executive themselves. On the other hand if the test was merely an objective test it is difficult to imagine a more serious offence within an organization registered under the Act than a concerted raid on its membership in favour of some competing body so far as funds derived by way of contributions is concerned by persons who held themselves out at that time to be officers of that organization.

Consequently it becomes unnecessary for the Court to consider two further submissions made by the respondents herein that the five charged applicants could only succeed in their claim under s.141 of the Act if they were members of the organization at the date of the commencement of this proceeding. If they had ceased to be such members before that date for reasons other than the said charges then they in effect had no locus standi under that section.

First, it was submitted that the evidence clearly showed an incompatibility that would attract the doctrine of "incompatible offices". Reliance in this regard was placed on the views expressed by the Court in Egan -v- Maher (No.2) (supra) @ 242-4 and cases therein referred to; Halsbury, 4th Edition, Vol.9 para. 1273 and R.-v- Tizzard (1829) 9 B.& C. 418 @ 421-2, 109 E.R. 155 @ 157.

Secondly, it was further argued that the conduct of each of the five charged officials was such that a reasonable inference should be drawn that each of them had impliedly resigned from the organization or repudiated the compacts between them and the organization (see generally In re Sick and Funeral Society of St. John's Sunday School, Golcar (1973) Ch. 51 @ 61-3).

For the above reasons the rule to show cause herein is discharged.

V 23 of 1979

Turning then to the rule granted on 27 June 1979 to Mr Crawford calling upon ten-named respondents to show cause why certain orders should not be made against them. Those ten respondents and the five charged applicants in matter N.S.W. 19 of 1979 constituted the members of the Committee of Management of the Sydney Branch of the organization immediately before 2 May 1979.

Orders herein were sought for the payment by the Sydney Branch of outstanding capitation fees for the financial years ending 31 March 1978 and 31 March 1979. An amount said to be the total of such fees assessed at the rate of 15% of the total receipts from branch contributions for those two financial years was paid by the Sydney Branch to Head Office on 17 July 1979 some three weeks after the rule to show cause herein was granted. Immediately before the 1978 Federal Council rr.42(4) and (6) of the organization read:
"4. At the close of each financial period a sum not exceeding twenty (20) per cent as decided by Council of the toal receipts from Branch Contributions shall be paid into Head Office prescribed funds, the balance remaining in the Branch General Fund to be divided into three (3) equal parts, which shall be allocated as follows:
(a) Incidental Fund . . . . . . (1) part
(b) General Fund . . . . . . (2) parts.

6. Each Branch secretary shall within eight (8) weeks of the close of each financial period forward Head Office a duly audited and signed statement for such financial period; together with the amount prescribed in Clause 4."

Such rate of 15% had been determined by the 1975 Federal Council. It is clear that immediately before 17 July 1979 Mr Bignell as Secretary of the Sydney Branch of the organization had failed to comply with such rules.

Sub-rules 42(4) and (6) were renumbered sub-rr.42(6) and (8) respectively after 18 January 1979.

At its meeting on 10 August 1978 the Federal Council of the organization adopted a resolution increasing such rate from 15% to 17 1/2%. There was no dispute that capitation fees from branches become due and owing eight weeks after the close of the financial year ending 31 March.

The respondents claimed first that the 1978 resolution increasing such rate was invalid as the 1978 Council was invalidly constituted for the reasons as argued in matter N.S.W. 19 of 1979. For reasons therein expressed I am of the opinion that such Council was validly constituted and that such resolution was validly adopted.

Secondly the respondents claimed that the 1978 resolution which simply read, "that per capita payments to Head Office be lifted to 17 1/2%" was on its true construction prospective in effect so that it would operate only in regard to the total receipts from Branch contributions collected during the financial year ending 31 March 1980.

I reject this argument. Clearly the resolution was prospective and it was directed to the method of calculation of an amount in the future, namely at the end of the then current financial year. That date was 31 March 1979. The decision in Allen -v- Laragy (1975) 7 A.L.R. 261 is distinguishable. In that case the amendment to the rules of that organization increased contributions be paid by members not only for a period in the future but also in respect of a period that had passed before such amendment.

Accordingly an amount of capitation fees for the year ending 31 March 1979, being the difference between the sum calculated at the rate of 17 1/2% and that calculated at the rate of 15%, is still due and owing by the Sydney Branch to Head Office and the applicant herein is entitled to an order accordingly.

As regards orders seeking the forwarding of duly audited and signed statements in respect of the Sydney Branch for the period ending 31 March 1978 and 31 March 1979 these statements were in fact discovered to Mr Crawford and the other respondents in matter N.S.W. 19 of 1979 so that no specific order in this regard is required. But it is clear once more that Mr Bignell as Sydney Branch Secretary had failed to comply with the rules of the organization.

This then leaves for consideration the first and last orders sought by the applicant herein in this matter.

In view of the Court's determination in matter N.S.W. 19 of 1979 there are vacancies in the respective offices held in the Sydney Branch by the five charged Sydney officials, namely, the offices of Secretary, Assistant Secretary/Organiser and three positions of Organiser. The occupiers of those offices or positions were elected in 1977 for a period of six years so that there is still an unexpired portion of the terms of each respective office in excess of twelve months (cf. r.51(1)) before scheduled elections for the filling of those offices and positions are due.

The respondents herein claim that there is no rule of the organization which requires the respondent to fill any vacancy in the Sydney Branch and that r.51 is entirely discretionary in this respect.

Turning first to the vacancy in the office of Secretary in the Sydney Branch. Rule 54 sets out numerous important duties of a Branch Secretary, many of which are of a continuing nature. I am of the opinion that the respondents, being those members of the Committee of Management of the Sydney Branch still in office have not only the power under r.51 to fill that vacancy but also have a duty to do so. (see Ryan -v- Rochford (1965) 8 F.L.R. 283 @ 291; Beeson -v- Blayney (1966) 8 F.L.R. 292 @ 296 and Jones -v- Farrow (1971) 26 I.I.B. 2731 @ 2737)

In regard to orders sought in ground (e) of the rule to show cause that the respondents make available all the books and accounts etc. to a nominated Chartered Accountant for the purpose of enabling the same to be audited in accordance with the resolution of the Federal Executive, reference is made to r.35(13) of the rules as certified on 18 January 1979 which it was agreed was to be read providing that the Executive shall have the power "to demand or cause to be made an audit of the books and accounts of the Union or any of the Branches thereof".

The respondents claimed that r.35(13) is not a valid rule as it was adopted by the 1978 Federal Council which was then invalidly constituted or alternatively the amendment to adopt such sub-rule was not validly before that Council as the mandatory procedural steps set out in r.27(2), (3) and (4) had not been complied with. These claims are rejected for the reasons in this regard set out in the judgment of the Court in matter N.S.W. 19 of 1979.

Further the respondents claimed that r.35(13) does not empower the Executive to specify any particular auditor or firm of auditors to conduct an audit of the books and accounts but is merely a power to demand or otherwise ensure that such an audit is conducted. In my view to construe the power given to the Executive under the rule in such a limited way would be to deny the purpose of having a federal power as claimed by the applicant herein. When r.35(13) was adopted by the Federal Council there was already a requirement that a Branch of the organization have an audit of its books and accounts. That requirement was set out in r.42 which rule insofar as is relevant to this discussion is still provided for in that rule. It is clear in my view that on its proper construction r.35(13), when read with the other rules of the organization envisages a special audit.

The evidence given in all the matters presently before the Court leads the Court to the conclusion that a full audit of the Sydney Branch of the organization for the financial years ending 31 March 1978 and 31 March 1979 should be made by auditors other than A.J. Williams and Co. This conclusion is not to be taken that the members of that firm of Accountants who in fact prepared the returns for those two years referred to in r.42(8) (formerly r.42(6)) (the preparation of which did not require the full audit as sought in the rule to show cause) were not then or presently are not completely independent or that they did not carry out their duties with complete honesty and competency. The Court is confident that Mr Williams, the senior member of the firm would be only too happy to lend any assistance he could to any other Chartered Accountant that might be directed by the Court to carry out the full audit sought.

Accordingly in this matter the following orders and directions are made:

(1) that the respondents within fourteen days from the date hereof constitute a Committee of Management of the Sydney Branch of the organization and appoint a member of such Sydney Branch eligible to nominate for the office of Branch Secretary in accordance with the rules to carry out the functions of the office of Branch Secretary pending the filling of such office pursuant to an election referred to in (5) below.

(2) that the person so appointed carry out all duties of the Branch Secretary as provided for in the rules of the organization pending the election of a Branch Secretary in accordance with these directions or further order of the Court.

(3) that the respondents Bruce J. Palmer and C.L.H. Hastwell each sign a cheque within seven days from the date hereof for the outstanding Sydney Branch capitation fees for the year ending 31 March 1979 being the difference between an amount calculated at the rate of 17 1/2% of the total receipts from branch contributions for that financial year and the amount already paid to Head Office of the organization in respect of that financial year on or about 17 July 1979.

(4) the respondents or the person appointed in accordance with (1) above cause to be forwarded to Head Office of the organization the cheque referred to in (3) above within fourteen days of the date herein.

(5) the person appointed in accordance with (1) above cause an election to be held pursuant to r.51(1) and r.48 (with the necessary changes) for the filling of the offices of Secretary, Assistant Secretary/Organiser and three Organisers of the Sydney Branch of the organization witin such time as the Court directs after hearing submissions by the parties in this regard.

(6) that the respondents and the person appointed in accordance with (1) above within fourteen days of the date hereof make available to Messrs J. Masselos & Co., Chartered Accountants, all books, vouchers, papers, documents, application cards, receipts and any other relevant material for the purpose of enabling the same to be audited in respect of the financial years ending 31 March 1978 and 31 March 1979 or such further period as the Court may direct after hearing submissions from any of the parties applying pursuant to the order granting liberty to apply.

(7) Liberty is reserved to any party to apply on forty-eight hours notice to the other parties and to the Court.

V24 of 1979

In view of the Court's determination in matter N.S.W. 19 of 1979 no orders are made in this matter. Reference has been made in the reasons for judgment in matter N.S.W. 19 of 1979 to s.171C of the Act.

It is proposed to adjourn this application for a period of some six weeks to enable the applicants herein to make any further submissions in this matter as they might be advised after persual of the reasons for judgment in these matters. Liberty to apply is granted to all parties on fourteen days notice.