Murray v Marshall

[1994] IRCA 144

C A T C H W O R D S

Rule to show cause - proposed special general meeting of the branch to consider alleged charges made against Branch Secretary - power of the special general meeting to determine whether an officer is guilty under the rules of conduct which would permit removal from office.

Industrial Relations Act 1988 (Cth) s.195

Allshorn v. Stapleton (1984) 4 FCR 236 at 238-239 (Full Federal Court) - followed

Hawkins v. Willis (1981) 58 FLR 364 (Full Federal Court) - distinguished

Mellor v. FLAIEU (1992) 42 IR 55 (French J.) - not followed

TERENCE PATRICK MURRAY v. PETER MARSHALL & Ors.
VI 5004 of 1994

KEELY J.
MELBOURNE
16 December 1994

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )                  No. VI 5004 of 1994
  )
VICTORIA DISTRICT REGISTRY  )

B E T W E E N :

TERENCE PATRICK MURRAY
  Applicant

- and -

PETER MARSHALL, DAVID YOUSEFF, JOHN JAMES,
  GARY CRONIN, JOHN TAYLOR, PAUL SWAIN,
  BRENDAN ANGWIN, NORMAN PALMER and
  BRUCE SMITH
  Respondents

CORAM:                  Keely J.
PLACE HEARD:     Melbourne
DATE:  16 December 1994

REASONS FOR JUDGMENT

The course of the litigation
           On 11 November 1994 a rule to show cause was granted which called upon the respondents to show cause why the following orders should not be made.

"1.The Respondents perform and observe the rules of the United Firefighters Union of Australia by treating as null and void and of no effect the purported decision of the Victorian Branch Committee of Management made on the 3rd day of November 1994 to cause a special meeting of the Victorian Branch to be held at 7:30pm on Monday 21st November 1994 for the purpose of considering whether Terence Murray and Ray Curtis are guilty of alleged charges and whether they should be removed from various offices in the United Firefighters Union of Australia.

2.That the Respondents be restrained from taking any further steps pursuant to the purported decision of the Victorian Branch Committee of Management made on the 3rd day of November 1994 to cause a special meeting of the Victorian Branch to be held at 7:30pm on Monday 21st November 1994 for the purpose of considering whether Terence Murray and Ray Curtis are guilty of alleged charges and whether they should be removed from various offices in the United Firefighters Union of Australia.

3.Such further or other orders as to the Court seem fit."

It was further ordered:

"4.That the Applicant as Branch Secretary be relieved of any obligation under Rule 55(3) to summon a special general meeting for the 21st November 1994."

On the return of the rule to show cause on 17 November 1994 counsel for the applicant and counsel for the respondents Messrs P. Marshall, D. Youseff, J. James, J. Taylor and B. Angwin (the represented respondents) jointly asked the court to order by consent, until further order, that:

"1.The Special General Meeting of the Victorian Branch ("the Branch") of the United Firefighters Union of Australia ("the Union") proposed for the 21st November 1994 not be held on that date and, in the event that the Court determines that it may proceed, it may do so on a later date.

2.The Court hear and determine as a separate question the question of whether Rule 83 or any other provisions of the Rules permits a General Meeting of the Branch to hear and determine whether an officer of the Branch is guilty under the Rules of conduct which pursuant to section 195(1)(c) of the Act permits removal from office.

3.The Applicant file and serve any further Affidavits and Contentions of Fact and Law relating to that separate question by 4pm on Monday the 28th of November 1994.

4.That the Respondents file and serve any Affidavit material and Contentions of Fact and Law relating to that separate question by 4pm on Friday the 2nd of December 1994.

5.If the Union wishes to intervene in this matter it file and serve any Affidavits and its Contentions of Fact and Law relating to that separate question by 4pm on the 2nd of December 1994.

6.The matter be fixed for hearing on 5 and 6 December 1994.

7.Roy Marshall and Peter Lucas be removed as respondents."

As to order 5 above, on 5 December 1994 leave was granted to the United Firefighters Union of Australia (the union) to intervene, there being no objection by the applicant or the represented respondents.  The union relied on written contentions of fact and law, dated 2 December 1994 and did not make oral submissions.  As to order 7 above, Mr Roy Marshall had been, but was no longer, a member of the branch committee of management.  Mr Peter Lucas was and is a member of it but service had not been effected upon him.  The remaining respondents, Messrs G. Cronin, P. Swain, N. Palmer and B. Smith were not represented.

Factual matters

Mr Murray (the applicant) is the Secretary of the Victorian Branch (the branch) of the United Firefighters Union of Australia (the union).  The respondents, together with the applicant and Mr Ray Curtis, are members of the branch committee of management.

On 3 November 1994, a meeting of the branch committee of management was held and it was attended by all of the persons named in the rule to show cause as respondents with the exception of Messrs Palmer, Lucas, Smith and Roy Marshall.  At that meeting a document headed "Request for a Special Meeting of the Victorian Branch of the United Firefighters Union of Australia" was presented (the request).  The document said relevantly:

"We, the undersigned financial members of the Victorian Branch of the United Firefighters Union of Australia request, pursuant to Rule 55(2) of the Union rules, that the Branch Committee of Management call a special General Meeting on Monday, 21st November, 1994 to consider the following questions:

1.Whether Terry Murray is guilty of misappropriation of the funds of the Union.

2.Whether Terry Murray is guilty of gross misbehaviour.

3.Whether Terry Murray is guilty of gross neglect of duty.

4.Whether Ray Curtis is guilty of misappropriation of the funds of the Union.

5.Whether Terry Murray should be removed from the office of Secretary of the Victorian Branch.

6.Whether Terry Murray should be removed from the office of National Executive delegate.

7.Whether Ray Curtis should be removed from the office of Assistant Secretary of the Victorian Branch.

In order to comply with Rule 83, the Branch Committee of Management is directed to:

(i)provide to the Office Manager (or other appropriate person) by Monday, 29th October, 1994 a copy of the Branch Trustee's Special Report tabled at the Branch Committee of Management meeting on 4th October, 1994 together with its attachments.

(ii)direct the Office Manager (or other appropriate person) to deliver personally or by courier to Mr Terry Murray and Mr Ray Curtis, a copy of the above report and attachments by no later than 31 October, 1994.

(iii)direct that the Office Manager (or other appropriate person) inform Mr Terry Murray and Mr Ray Curtis of the proposed questions and advise them in writing that they will be given the opportunity of being heard at the Special General Meeting of the Branch.

The Secretary is directed to forward to each station or place of employment, a notice setting out the type of meeting, the time and place of the meeting, a copy of this Request (minus the signatures) and a copy of the documents referred to in paragraph (i) above, not later than 6th November, 1994."

The document then provided space for signatures of members of the union, their registration numbers and for them to print their names.  It bore a large number of signatures (see rule 55(2)).  A "Bulletin" was also circulated amongst union members in Victoria setting out the details referred to in the final paragraph of the request.

The applicant obtained legal advice.  At the branch committee of management meeting on 3 November 1994 he provided copies of that legal advice and proposed rule amendments.  However, the branch committee of management decided to cause a special meeting of the branch to be held on the date and at the time referred to in the request.

Some rules of the union

Rules 38(1), 48, 54(1), 55(2), 82(1), (2) and (4), 83 and 88 of the union rules are as follows:

"38 - REMOVAL FROM OFFICE AND SUSPENSION OF

NATIONAL COMMITTEE OF MANAGEMENT MEMBERS

(1)The National Committee of Management may at any time by resolution of a majority of two thirds of the votes able to be cast by those present at its meeting reprimand, fine, suspend or remove from office or expel from membership any National Delegate or National Executive Member or National Officer if that person has been found guilty, under these Rules of the Union, of:

(i)misappropriation of the funds of the Union;

(ii)a substantial breach of the Rules of the Union; or

(iii)gross misbehaviour or gross neglect of duty;

or has ceased, under these Rules, to be eligible to hold the office.

. . .

48 - IMPLIED AND INCIDENTAL POWERS

Each body or Officer constituted or provided for by these Rules -

(a)may exercise all powers and shall perform all duties given to such body or such Officer by these Rules expressly or by implication;

(b)may do all such other things as are incidental or conducive to the attainment of the objects of the Union and the exercise of the powers and the performance of the duties of such body or Officer.

. . .

54 - POWERS AND DUTIES OF BRANCHES

The powers and duties of a Branch shall be exercised at Branch meetings and shall be:

(1)In relation to all matters affecting only the members of that Branch

(a)it shall act as the governing, controlling, managing and policy-making body of the Branch; and

(b)its resolutions shall bind the Committee of Management, Officers and members of the Branch.

. . .

55 - BRANCH MEETINGS

. . .

(2)A Branch Committee of Management may decide to call a special meeting of the Branch to consider a specified question or questions.  A special meeting of a Branch shall be held at a time, date and place to be decided by the Branch Committee of Management and in the case of the Australian Government Employees Branch shall be held in series in the manner contemplated by, and subject to the provisions of, Sub-Rule (1) hereof.  If a request in writing signed by at least one twentieth of the financial members of the Branch or such other lesser number as determined by the Branch Committee of Management to call a special meeting of the Branch to consider a specified question or questions is given to a Branch Secretary, the Committee of Management of the Branch shall cause a special meeting to be held as soon as practicable.

. . .

82 - OFFENCES BY BRANCH MEMBERS

(1)Subject to Rule 37 of the National Rules a Branch Committee of Management may and at the request of the Branch Secretary who has submitted to the Branch Committee of Management a case against a member shall by summons in writing call upon any member whom the Branch Committee of Management or Branch Secretary alleges is acting in breach of these Rules or the Rules of such member's Branch or has within the preceding twelve months committed any offence against these Rules or the Rules of the Branch in which such member's membership lies to show cause why such member should not be reprimanded, fined or expelled from the Union.

(2)The summons shall:

(a)state the allegation together with particulars thereof;

(b)disclose the evidence on which the allegation is based;

(c)be signed by the Branch President or Branch Secretary;

(d)state the time, date and place at which the member is to show cause;

(e)be delivered personally to the member concerned or posted by registered or certified mail to such member's last known address at least 21 days before the meeting at which the matter is to be determined;

(f)have attached to it a copy of this Rule.

. . .

(4)If in the opinion of the Branch Committee of Management the member is guilty of the offence alleged the Branch Committee of Management may reprimand or may fine such member a sum not exceeding one Hundred Dollars for any one offence or may suspend such member for a period not exceeding 12 months or may expel such member from the Union.

. . .

83 - REMOVAL OF BRANCH OFFICERS

(1)No Officer of the Branch shall be removed from office unless the Officer has been found guilty under the Rules of the Union, of:

(i)misappropriation of the funds of the Union; or

(ii)a substantial breach of the Rules of the Union; or

(iii)gross misbehaviour or gross neglect of duty;

or has ceased, under the Rules of the Union, to be eligible to hold the office.

(2)A person shall not be dealt with pursuant to Sub-Rule (1) hereof unless a resolution to that effect is passed by a majority of two thirds (2/3) of the members (present and entitled to vote) at a Special General meeting of members of the Branch and of which the person has been given at least twenty-one (21) days notice, in writing, of the date and place of the Meeting and of the motion to be considered together with particulars of all allegations.  Such person shall be given the opportunity of being heard at the Meeting.

88 - CONTROL OF BRANCH BY MEMBERS

Subject to the powers expressly conferred by these Rules on the National Committee of Management, National Executive, National Secretary and National Returning Officer, final control of a Branch in relation to all matters affecting members of only that Branch shall rest with the decision of the financial members of that Branch present at a Branch meeting or voting in a plebiscite and every such decision shall bind the Committee of Management, Officers and members of the Branch.  All powers conferred by these Rules on the Committee of Management or Officers of a Branch are conferred subject to this Rule but nothing in this or any other Rule shall empower a Branch meeting to affect or alter a declaration by a Returning Officer of the result of an election or plebiscite."

The contentions of counsel for the applicant

Counsel contended that the proposed Special General Meeting of members has no power to find a Branch officer guilty of any of the conduct specified in paragraphs (i), (ii) and (iii) of rule 83(1) (the specified misconduct), although he conceded that that sub-rule gives to that Special Meeting the power to remove an officer from office if he "has been found guilty under the Rules of the Union" of the specified misconduct. He made a careful analysis of the rules and submitted, amongst other matters, that in the union's rules (1) there "is no . . . rule that provides that the specified misconduct is an offence under the Rules", (2) there is no rule "that provides for a Branch officer to be charged or found guilty under the Rules of specified misconduct" and (3) that the absence of such provisions constituted a failure "to make provision for the removal from office of a Branch officer in the way permitted by S.195(1)(c)" of the Industrial Relations Act 1988 (Cth) (the Act).

He submitted in the alternative that if, on its true construction, contrary to his submission, rule 83 "does enable a Special General Meeting . . . to hear and determine a charge of specified misconduct against a Branch Officer the rule . . . contravenes section 196 of the Act" in failing to provide for (a) offences, (b) charges and (c) findings as to guilt.  In reply to that submission counsel for the represented respondents referred to the following passage from the judgment of a Full Court of the Federal Court in Allshorn v. Stapleton (1984) 4 FCR 236 at 238-239:

"          Counsel for Mr Allshorn contended further that the challenged part of r 18 contravenes s 140(1)(c) of the Act in that it imposes upon members of the Association conditions which are unreasonable or unjust within the meaning of s 140(1)(c) of the Act.  We respectfully adopt what the learned trial judge said in rejecting that contention.  His Honour said:

"As to the applicant's contention in relation to s 140(1)(c) of the Act, a rule does not necessarily contravene s 140(1)(c) merely because it is capable of being misused in such a way as to operate unreasonably - see the observations of Dethridge CJ in O'Sullivan v The Australian Workers Union (1938) 39 CAR 323 at 325, cited by O'Mara J in Hay v The Australian Workers Union (1944) 53 CAR 674 and by Kelly J in Bowden v The Australian Workers Union (1946) 56 CAR 530 at 531. Doubtless some rules of many organisations could be misused. The remedy for any such misuse does not lie in the making of an order under s 140 in respect of the rule itself, but in the making of an order under s 141 giving directions for the performance or observance of the rules in such a manner as to prevent, or to overcome the effects of, any such misuse". "

As a further alternative, the applicant's counsel submitted that, even if charges could be considered by the Special Meeting, only the branch committee of management could lay the charges under rule 39.  I accept the submission by counsel for the represented respondents that rule 39 should not be construed as restricting the power of others to lay charges.

The contentions of counsel for the represented respondents

The represented respondents submitted that:

"2.On its true construction rule 83 of the Rules of the United Firefighters Union of Australia ("the UFU") does the following:

(a)it establishes offences under the rules in relation to the conduct of an officer, that is it proscribes the following conduct by an officer ("the specified misconduct"):

(i)misappropriation of the funds of the Union;

(ii)a substantial breach of the rules of the Union;

(iii)gross misbehaviour or gross neglect of duty.

(b)it establishes a procedure for the determination of guilt in relation to the above offences by a special general meeting;

(c)it provides for the possibility of removal from office if found guilty of such an offence by a special general meeting;

(d)it establishes a procedure regarding the determination of whether the penalty of removal should be applied by a special general meeting following a finding of guilt in relation to any of the offences.

3.That part of [rule 83(1)] which says "No officer shall be removed unless found guilty . . . " carries the necessary implication that:

(a)under the rules an officer may be found guilty of specified misconduct;

(b)if found guilty an officer may be removed from office.

In this respect see also rules 38 [set out earlier] and 39.

4.Sub-rule 83(2) establishes a procedure for the determination of guilt in relation to the offences set out in rule 83(1) and for a procedure regarding determination of the question whether removal from office is appropriate.  The sub-rule is not just about removal from office in that:

(a)it requires particulars of allegations to be given to the person being dealt with under sub-rule (1);

(b)the opening words of the sub-rule make it clear that the consideration of more than removal is contemplated at the special general meeting;

(c)the use of the singular "resolution" and "motion" should be read as including the plural:  see rule 2(3).

5.The procedure established by rule 83 requires that a person being dealt with under rule 83(1) be given:

(a)notice of the meeting;

(b)notice of any motions to be considered by the meeting;

(c)particulars of all allegations made against the person;

(d)an opportunity of being heard at the meeting;

(e)a precondition on removal from office that any finding of guilt and the imposition of any penalty of removal must be passed by a majority of two thirds of the members present and entitled to vote at a special general meeting.

In so providing the rule establishes a procedure which ensures natural justice.

6.The vesting of the power to remove officers in a special general meeting is:

(a)consistent with the scheme of the rules:  see for example rules 54, 55 and 88 [set out earlier];

(b)necessary in order for the rules to comply with section 195(1)(b)(iii) and (iv) of the Act.

7.The rules of the Union should:

(a)be construed, so far as is possible, so that they are not contrary to the Act;

(b)not be construed in too strict, literal or technical a fashion.

8.The [Applicant's] contentions require a construction of the rules of the UFU:

(a)which holds that the rules of the UFU are contrary to the Act;

(b)which is too strict, literal and technical.

In that event the construction of the Applicant is not to be preferred.

9.Further or alternatively, if sub-rule 83(2) does not as a matter of construction permit a special meeting of the branch to determine the guilt of an officer in relation to alleged specified misconduct, the provision of the rules in relation to the functions and powers of branch meetings do provide a special general meeting with the capacity to make such a determination:  see for example rules 54, 55 and 88."

In relation to their contentions 7 and 8 above, counsel for the represented respondents relied upon a general principle that the rules of a union should be construed, if possible, as not being contrary to the Act.  He also relied upon rule 2(1) of the union's rules which provides that:

"(1)So far as is consistent with their express provisions these Rules are to be construed so as not to be contrary to any provision of the Act . . . and so as not otherwise to be contrary to law . . . "

I accept the submissions of counsel for the represented respondents and, in particular, I accept his submission as to the construction of rule 83(1) and (2), including the necessary implications.  I reject the submission of the applicant's counsel that the Special General Meeting has no power to find a Branch Officer guilty of any of the specified misconduct.

The applicant's counsel relied upon the reasons for judgment in Hawkins v. Willis (1981) 58 FLR 364, a submission that initially appeared to have considerable force. However, counsel for the represented respondents has persuaded me that that case is distinguishable by comparing the rules in the present case with the rules dealt with in that case and by reference to the reasons for judgment in Hawkins relating to those rules.  I also accept his submission that the court should not follow the decision of French J. in Mellor v. FLAIEU (1992) 42 IR 55 - a decision which does not refer to Hawkins nor to the decision of Fitzgerald J. in Hills v. Higgins (1982) 61 FLR 131.

The "separate question" in the second order made by consent on 17 November 1994, the terms of which are set out earlier, will be answered "Yes".

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Keely.

Associate:

Date:   16 December 1994

Solicitors for the applicant  :          Alfred L. Abrahams & Co
Counsel for the applicant  :          Mr R W Hinkley

Solicitors for the represented respondents         :          Gill, Kane & Brophy
Counsel for the represented respondents           :          Mr A J Watson

Solicitors for the union  :          Ryan, Carlisle, Thomas
Solicitor appearing for the union  :          Mr E. White

Date of hearing  :          5 and 6 December 1994

Date of judgment  :          16 December 1994