Noack v Cameron
[1999] FCA 1466
•21 OCTOBER 1999
FEDERAL COURT OF AUSTRALIA
Noack v Cameron [1999] FCA 1466
Industrial Law - application for a rule to show cause - whether applicant has established any arguable ground that impugned resolutions of the Union are contrary to the rules - application dismissed.
Matter No. S 88 of 1999
PAUL NOACK v DOUG CAMERON & OTHERS
VON DOUSSA J
21 OCTOBER 1999
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 88 OF 1999
BETWEEN:
PAUL NOACK
Applicant
AND:
DOUG CAMERON, DAVE OLIVER, PAT JOHNSTON, NEIL MARSHALL, JOHN ROYLE, JIM REID, MIKE NICOLAIDES, JULIUS ROE, IAN JONES, DAVE SMITH, NOEL TREHARNE, RUDI VELTMEYER, PAUL BASTIAN, BRIAN HENDERSON, GARY HINGLE, BRIAN BEER, GEOFF ADAMS, IAN CURRY, JOHN SHARP-COLLETT, KEITH PECKHAM, DAVE GOODGER, MICHAEL BROWN, ADRIAN COLEBROOK, FRANK FAIRLEY, DAVE HARRISON, CRAIG JOHNSTON, BRIAN MINNIKIN and ROD PARHAM
Respondent
JUDGE:
VON DOUSSA J
DATE OF ORDER:
21 OCTOBER 1999
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
The application for a rule to show cause be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 88 OF 1999
BETWEEN:
PAUL NOACK
Applicant
AND:
DOUG CAMERON, DAVE OLIVER, PAT JOHNSTON, NEIL MARSHALL, JOHN ROYLE, JIM REID, MIKE NICOLAIDES, JULIUS ROE, IAN JONES, DAVE SMITH, NOEL TREHARNE, RUDI VELTMEYER, PAUL BASTIAN, BRIAN HENDERSON, GARY HINGLE, BRIAN BEER, GEOFF ADAMS, IAN CURRY, JOHN SHARP-COLLETT, KEITH PECKHAM, DAVE GOODGER, MICHAEL BROWN, ADRIAN COLEBROOK, FRANK FAIRLEY, DAVE HARRISON, CRAIG JOHNSTON, BRIAN MINNIKIN and ROD PARHAM
Respondents
JUDGE:
VON DOUSSA J
DATE:
21 OCTOBER 1999
PLACE:
ADELAIDE
EX TEMPORE INTERLOCUTORY REASONS FOR JUDGMENT
This is an application for a rule to show cause why an order should not be made against the respondents under s 209 of the Workplace Relations Act 1996 (the Act). The applicant, Mr Noack, is the State Secretary of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union which is generally known as the AMWU (the Union). The respondents are the National Secretary, Mr Cameron, and members of the National Council of the Union.
The underlying subject matter of the present dispute has a substantial history. Because of that history I refused to hear the application for a rule to show cause ex parte, and directed that notice be given to the respondents by service of the proceedings on the Union. Mr Cameron and the Acting National President, Mr Roe, have been represented before me.
This matter is urgent in the sense that there are other proceedings before the National Council presently listed for hearing next week, and in those circumstances I propose to deliver my judgment orally now.
Over the last fifteen months a number of proceedings involving the present parties have been prosecuted in this Court. The history need not be recited in detail in these reasons. It is sufficient to note that in July 1998, after a charge of gross misbehaviour had been laid by Mr Cameron against Mr Noack under rule 11 of the rules of the Union, Mr Noack sought a rule to show cause why orders under s 209 should not be made which would have the effect of halting the hearing of the charges against him. Then one Ms Adlam sought a rule to show cause why orders should not be made against Mr Noack and Mr Cameron under s 209. Her complaint in substance was that in breach of the rules of the Union the applicant was harassing her in the performance of her duties and responsibilities as Regional Secretary in South Australia of the Technical and Supervisory Division of the Union, and as an Assistant Secretary of the South Australian Branch of the Union.
The rule to show cause sought by Ms Adlam was made along with other orders on 22 July 1999. One order was that:
“4.Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant.”
Events which followed the making of that order are canvassed in reasons for judgment delivered by Mansfield J on 8 September 1999 concerning a charge of contempt against Mr Noack alleging a breach of that order.
There were also other proceedings by Mr Noack concerning charges laid by Mr Cameron against him before the State Council of the Union of gross misbehaviour. Those charges were eventually heard by the State Council on 24, 25 and 26 November 1998. Whilst a simple majority found Mr Noack guilty of the charges, there was not a two-thirds majority of the State Council of that view, as required by the then rule 11, and the charges were therefore not found proved.
Ms Adlam then challenged the outcome of the State Council’s deliberations in proceedings under s 209, alleging that some members of the State Council were invincibly biased in favour of Mr Noack. Those proceedings have been heard this year by Marshall J, who reserved his judgment on 10 September 1999. Judgment has not yet been delivered.
In the meantime, as a result of events which culminated on 7 October 1998 at a State Council Meeting, on 14 October 1998 Ms Adlam, by notice of motion, applied for orders that Mr Noack be dealt with for contempt of order 4 of the orders made on 22 July 1998. The charge was that Mr Noack had engaged in conduct calculated to harass Ms Adlam by:
“…both promoting and moving on 7 October 1998 the purported resolution of the State Council of that date concerning the Women’s Committee.”
The effect of the resolution would have been to have the Women’s Committee convened by someone other than Ms Adlam, who had hitherto been the convener of the Women’s Committee. On 8 September 1999 Mansfield J found the charge of contempt proved.
At some time between 8 September and 20 September 1999 a member of the Union, Mr Andy Plant, laid a charge of gross misbehaviour against Mr Noack under what has now become rule 13 of the Union rules. Rule 13 is an amended version of the former rule 11. The amendments were approved by the National Conference of the Union in July 1998 and were certified on 25 February 1999 by a Deputy Industrial Registrar so as to take effect from that date under s 205(3) of the Act.
On 20 September 1998 a mediation was taking place between the parties in an endeavour to resolve conflicts within the Union arising from the finding of contempt which had been made against Mr Noack. The mediation was being conducted by the Honourable J M Riordan AO. During the mediation Mr Riordan gave to Mr Noack’s solicitor a copy of the charge laid by Mr Plant, and that charge was read by Mr Noack.
On 23 September 1999 there was a meeting of the National Council where a number of resolutions relating to Mr Plant’s charges were passed. The minutes of that meeting, recording the resolutions, were transmitted by fax under the hand of Mr Cameron to Mr Noack’s solicitors on 23 September 1999. The resolutions included the following motions:
“National Council notes that a charge under Rule 13 has been laid by Brother Andy Plant (membership number 5035048) to the following effect:-
‘Brother Noack is charged under Rule 13 in that Justice Mansfield of the Federal Court of Australia on 8 September 1999 (in Adlam v Noack (SG91 of 1998)) found beyond reasonable doubt that Brother Noack engaged in conduct which was in contempt of Orders made by von Doussa J on 22 July 1998 and that conduct, if found to have occurred, would constitute gross misbehaviour under Rule 13 by Brother Noack’.
National Council notes that the National Secretary has provided a copy of this charge to Brother Noack in Adelaide on 20 September 1999.
National Council requests that Brother Noack advise by 5.00pm 30 September 1999 whether he admits or denies the charge or wishes to make any comment thereon.
National Council considers that having regard to the undetermined issues relating to matters of bias in State Council proceedings SG141 of 1998, [i.e. the proceedings heard by Marshall J] National Council is of the view that the charge laid by Brother Andy Plant should be dealt with by National Council pursuant to Rule 13.9(c).
National Council requests Brother Noack to voluntarily not carry out any of the duties of State Secretary pending determination of the charge by National Council on 27 and 28 October 1999.
National Council determines that if Brother Noack voluntarily stands aside, then he should continue to receive the remuneration normally due to him as State Secretary.”
The National Council also passed a lengthy motion adopting procedures to be followed in respect to the hearing of the charge, and another motion that Mr Noack show cause by 1 October 1999 why he should not be directed, pursuant to rule 13.14 not to carry out any of the duties attached to his office of State Secretary. The National Council determined to hold a telephone hook-up on 5 October 1999 to consider this direction and any response from Mr Noack.
On 1 October 1999 Mr Noack’s solicitor wrote two letters to Mr Cameron. In the first Mr Noack denied the charge. In the second many complaints were made that the procedures required by rule 13 had not been followed, that the proposed procedures for the hearing were unfair, and that rule 13 was being improperly invoked to have retrospective application to the events alleged to have occurred on or about 7 October 1998. Notably that second letter offered no comment on the substance of the charge laid by Mr Plant, nor any submission why a charge properly laid under rule 13 should not proceed to an expeditious hearing as required by the rules. Because of the complaints made in the second letter, Mr Noack demanded that the present respondents treat the resolutions of 23 September 1999 as null and void.
The National Council met again on 5 October 1999, and had before it the two letters from Mr Noack. The National Council passed a number of resolutions relating to the charge. The National Council resolved to direct Mr Noack not to carry out any of the duties attached to the office of State Secretary, other than the exercise of rights under the rules to attend meetings of bodies on which the State Secretary is a member and to participate pursuant to the rules in such meetings. This direction was to operate until the National Council determined the charge or until 28 October 1999, whichever was the earlier.
The National Council also resolved to draw Mr Noack’s attention to the orders of von Doussa J made on 22 April 1999, and to direct Mr Noack not to engage in any conduct contrary to those orders at any meetings that he might attend. The resolutions then continued:
“Arising from the correspondence from Moloney and Partners [i.e. Mr Noack’s solicitors] and from this decision, Council determines as follows:-
·As neither South Australian State Conference nor State Council can fairly deal with the charge brought by Brother Plant and pursuant to Rule 13.9(c) National Council will deal with the charges.
·Brother Noack will be called upon to show cause to National Council at 10.00am on 27, 28 and (if necessary) 29 October 1999 in Adelaide, why he should not be removed from office.
·Brother Curry will continue to carry out the duties associated with T&S Division matters and issues pertaining to Sister Adlam from Orders of von Doussa J.
·Subject to the exercise of Brother Noack’s rights to attend meetings as noted above, Brother Camillo and Watson will jointly carry out all other duties described in Rule 29.3, State Secretary.
…”
Against that background the present application for a rule to show cause is made. Mr Noack seeks an order under s 209 which would have the effect of restraining the respondents from proceeding further with the hearing of the charge laid by Mr Plant and declaring null and void the resolution under rule 13.14 directing him not to carry out the duties attached to his office of State Secretary.
The relevant part of the present rule 13 are as follows:
“1.No person elected to an office within the Union shall be removed from that office except in accordance with this rule.
…
3.By a two-thirds majority of votes taken at a meeting of the National Conference, the Conference may by resolution in that behalf remove from office a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross mishaviour (sic) or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office.
4.By a two-thirds majority of votes taken at a meeting of the National Council, the National Council may by resolution in that behalf remove from office, subject to this sub-rule, a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased under the rules of the Union, to be eligible to hold the office. Where such resolution has been carried by National Council it shall be submitted to the members of the National Conference by post for endorsement. No such resolution of the National Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of the National Conference.
…
6.By a two-thirds majority of votes taken at a meeting of a State Conference, the Conference may by resolution in that behalf remove from office a State Official of the Union in that State, or Regional Official in Tasmania, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office. State Council at a meeting may by resolution in that behalf remove from office, subject to this sub-rule, a person holding one of the offices referred to in this sub-rule after being found guilty by a two-thirds majority of votes taken at a meeting, of one or more of the offences described in this sub-rule. Where such
resolution has been carried by State Council it shall be submitted to the members of the State Conference by post for endorsement. No such resolution of the State Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of members of the State Conference.
…
8.Any member desiring to invoke the preceding sub-rules 3 to 7 against a person elected to an office shall in writing charge that person with the conduct or circumstances alleged to justify that person’s removal from office and shall forward the written charge to the National Secretary who shall forthwith:
(i)forward a copy of the written charge to the person against whom the charge is made at the same time in writing requesting the person charged to advise whether he or she admits or denies the charge or wishes to make any comment thereon; and
(ii)forward a copy of the written charge and, after receipt of any reply thereto from the person charged, a copy of that reply, to the relevant Division Federal Secretary, State Secretary or Divisional Regional Secretary, as the case may be.
9.(a) At the next ordinary or special meeting of National Council (including a meeting of National Council by telephone hook-up) the charge and any reply made by the person against whom the charge is made shall be considered and the National Council may resolve that:
(i)the person charged be called upon to show cause to National Conference or National Council why he or she should not be removed from office;
…
(iii)the charge should be more properly heard by a State Conference or State Council of the Union and, in such case, direct that the charge and any reply thereto be forwarded to the relevant State Secretary so that it might be considered at the next meeting of the State Council and that State Council shall thereupon decide whether the charge shall be heard by itself or by the State Conference;
(b)…
(c)If the charge in question relates solely to the affairs of a particular State and to a State Official who only holds office that State or representing that State, then the National Council shall remit the matter to the relevant State Secretary to be dealt with by the State Conference or State Council of that State in accordance with this rule, unless the National Council is of the view that the charge cannot be fairly dealt with by that State. A decision that a State cannot fairly deal with a charge may be made by National Council of its own motion or upon the request of the person laying the charge or the request of the person against whom the charge is laid.
(d) …
(e) …
…
14.An office holder may, by resolution of National Council in the case of a charge to be heard by National Conference or National Council, by the relevant Federal Executive of a Division in the case of a charge to be heard by that Division’s Federal Conference, by State Council in the case of a charge remitted to be heard by State Conference or State Council, or the relevant Regional Council in the case of a charge to be heard by that Regional Council be directed not to carry out some or all of the duties attaching to his or her office pending the hearing of any charge against that official, and the appropriate body may also resolve in the case of the holder of a full-time office whether or not the office holder charged shall receive wages and other payments normally due to him or her by virtue of holding that office until the charge against the official is heard and determined. Any decision of a State Council shall be limited to offices held by a State Official in that State or representing that State, and any decision of a Regional Council shall be limited to offices held by a Regional Official in that Region or representing that Region.”
In support of the rule to show cause six submissions are made, which I shall deal with in order. Before doing so, I note that this is an application for a rule to show cause, rather than a hearing of proceedings which follow the making of such a rule. Nevertheless I am satisfied, having heard the parties, that the issues raised in each of the six submissions should be resolved at this stage. The submissions which challenge compliance with the procedural steps involve an application of the rules to facts that are not in dispute. The submission as to retrospectivity involves a construction of the rule. The submission that the direction under rule 13.14 is contrary to s 195(1)(c) of the Act is a point of law. The remaining submission is that there is an arguable case that the resolutions of the National Council have been passed for an ulterior purpose. In my opinion that submission is not made good on the evidence which has been brought forward by Mr Noack, and I shall give reasons for that conclusion.
The arguments advanced are as follows:
1. Retrospectivity.
It is said that the charge by Mr Plant is bad as it concerns conduct which occurred on or about 17 October 1998 whereas rule 13 only came into effect on 25 February 1999; consequently an attempt is being made to apply retrospectively the new rule 13 to past conduct.
The first point to be noted in relation to that submission is that the substantive description of the conduct which attracts the remedial action that may be taken on proceedings to remove an official under that rule 11 in its original form and 13 in its new form is the same. Under each rule action may only be taken against an official if, by a two-thirds majority of votes taken at a meeting of the relevant organ of the Union, it is resolved that the official is guilty of, in this case, gross misbehaviour.
Whilst the text of the two rules is different, that substantive requirement is the same. Rule 13 lays down in more detail than rule 11 procedures which must be followed to bring a charge of gross misbehaviour before an organ of the Union to be heard. Even if the complaint by Mr Plant were a criminal charge in respect of which a penalty was to be imposed for infringement of a law proscribing particular conduct, the presumption against retrospectivity would not, in my view, apply for the reasons which are given by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 521.
In my view the amendments go to matters of procedure and the way in which the underlying matter of complaint is to be proved, but do not change the subject matter that must be established. This, however, is not a prosecution for an offence. A charge under rule 13 is a disciplinary proceeding which seeks in substance to have the person charged removed from office on the ground that past conduct renders him or her presently unfit to hold office. Rule 13 is not, in the present circumstances, invoked to operate retrospectively but rather is invoked to fix present and future consequences to past events or facts. See Walton v McBride, an unreported decision of the New South Wales Court of Appeal, 3 October 1989, particularly at pp 17 to 19; Roughan v Day and Ors (1991) 32 FCR 581; Pearce, Statutory Interpretation in Australia, 4th Ed, at paras 10.2 to 10.4 and in particular the decision referred to in that text of Re a Solicitor’s Clerk (1957) 1 WLR 1219.
In a situation where it is alleged that a rule or legislation is being applied with retrospective effect the result ultimately turns on the construction of the rule or legislation, and whether its terms evidence an intention to operate in regard to matters that may have occurred before the making of the rule or the passing of the legislation. In this instance it is, in my view, clear that the rule is intended to operate in respect of conduct whenever it may have occurred. Rule 13.1 by its terms indicates that rule 13 is an exhaustive provision, or a code, dealing with the removal of a person elected to office within the Union.
Moreover, the authorities indicate that an important consideration is whether the application of a rule or legislative amendment to past conduct would bring about substantial injustice. In this case, in my view, if it were necessary to decide the point on this consideration, there is no substantial injustice in applying the new rule 13 in the way which it is sought to be applied by the respondents. This is a case where the retrospective operation alleged arises only in a technical sense, of the kind referred to by Beaumont J in Roughan v Day at p 596. In this case, as in that case, the rule had been passed by the appropriate organ of the Union before the conduct the subject of the charge occurred. It was only the fact that the Act requires the formal approval of an Industrial Registrar that prevented the rule having effect at an earlier date.
In my view, therefore, the submission as to retrospectivity must fail.
2. Procedural irregularities
The second point that was argued is that if the new rule 13 does have application, the procedures required in respect of the laying and the hearing of a charge under that rule have not been complied with by the National Secretary and the National Council. It is contended that there are substantial procedural irregularities in three respects.
First, rule 13.8(i) requires that the National Secretary forward a copy of the written charge to the person against whom the charge is made and at the same time in writing request the person charged to advise whether he or she admits or denies the charge and wishes to make comment thereon. It is argued that in the present case the charge was given to Mr Noack not by the National Secretary but by Mr Riordan on 20 September 1999, and any request that was made to Mr Noack to advise whether he admitted or denied the charge was a request made by the National Council.
Secondly, it is submitted that the requirements of rule 13.8(ii) were not met. In relevant respects that rule would appear to require that a copy of the charge and, after receipt, any reply thereto from the person charged, be given to the State Secretary. The submission assumes that that did not occur, and counsel for Mr Noack acknowledged that in the particular circumstances of this case perhaps the rule was incapable of compliance in any event, a submission which I think leads on to the observation that it is a rule that may have no application in the circumstances.
Thirdly, it is contended that the requirements of rule 9(a) were not met in that it could not be said that the National Council meeting held on 23 September 1999 was the next meeting of the National Council after the charge, and any reply made to it, had been received. Indeed, it is submitted that there was neither compliance with the rule as to service of the charge at that date, nor had there been any opportunity given to make a reply.
For these reasons it is said that the proceedings under the charge are fundamentally flawed, and that no further steps should be taken.
In my opinion, those challenges to the procedural steps cannot succeed. The first point, relating to rule 8(i), puts form over substance because the reality is that Mr Noack was made aware of the charge. He had the opportunity to read it and the natural justice requirement that a charge be served was in substance fulfilled. The reality is that on 1 October 1999 Mr Noack did have the opportunity, which he exercised, of making whatever comment or response he wished to make to the charge.
As to the complaint about rule 8(ii), in my opinion where a charge is laid against a State Secretary, or another officer upon whom the charge and response would otherwise ordinarily be served, the rule simply has no application. In any event, in this case it is plain that the State Secretary was aware of the charge because he - that is, Mr Noack - had read it and he also knew of the response which was made on his behalf.
The third point, arising under rule 9(a), would be a matter of substance if the only meeting that was held by the National Council at which all the resolutions that I have mentioned were passed was the meeting held on 23 September 1999, but it was not the only meeting. There was also the meeting of 5 October 1999. That meeting reconsidered issues relating to the charge. By that time, the National Secretary had forwarded the minutes of the meeting of 23 September 1999 to Mr Noack via his solicitors. Those minutes set out the charge and also requested that Mr Noack advise if he admitted or denied the offence, and offered him the opportunity to make comment. In my opinion, that was a sufficient compliance with rule 8.1 at that point in time.
The meeting of 5 October 1999 then became the next meeting after the response was received and that was the meeting at which the charge was considered. It follows that the requirements of rule 9(a) were on that occasion met. Insofar as there may have been a failure to comply with procedures leading up to the resolutions passed on 23 September, the matter was reconsidered on 5 October, by which time the required procedures had taken place.
Mr Noack submits that he is disadvantaged by what happened because by 5 October he was in a position of having to persuade the National Council to change decisions already made. I do not accept that it is open, on the facts before the Court, to hold that Mr Noack suffered any such disadvantage. It is notable that on 1 October 1999, when he had the opportunity to put forward any reason why properly laid charges should not be heard promptly, and by the National Council, he put nothing.
Moreover, the charge having been laid, the National Council was obliged to deal with it. The rules only left room for discretionary decision as to who would hear the charge, and the procedures to be followed on the hearing. Each of those matters are topics of separate submissions, but there is nothing in the evidence to suggest that the resolutions on those topics passed on 5 October 1999 might have been different had the topics not been the subject of consideration by the National Council on 23 September 1999. In my view, therefore, there is no prospect of the argument advanced under the second submission leading to any order which would restrain the further hearing of the charges.
3. No basis for National Council hearing the charge
The third point that is argued is that in any event there was no basis for the view formed by the National Council under rule 13.9(c) that the charge could not fairly be dealt with in South Australia. Mr Noack contends that the charge, if it were otherwise valid, should be heard by the State Council under rule 13.6. Mr Noack contends that for the National Council to rely on a suggestion of bias in the composition of the State Council when it heard the charges against Mr Noack in November 1998 is either specious, or a point not entitled to weight, as only a very few of the State Councillors were said to be invincibly biased and, in any event, Marshall J has not yet delivered judgment and the challenge of invincible bias might not succeed.
I do not accept this third submission.
The allegations made in the proceedings before Marshall J of invincible bias were serious ones, and whilst they remain unresolved by judicial decision they do, in my opinion, provide a sufficient basis for a decision made bona fide by the National Council that the National Council, rather than a State organ of the Union, should hear the charges. But the reasons which exist to justify a decision to that end go much further than a mere suggestion of bias at the hearing in November 1998. It is notorious that the events behind all this litigation, and indeed the litigation itself and the earlier charges against Mr Noack, have polarised factions within the Union and made the administration of the affairs of the South Australian Branch extremely difficult. It would be difficult for organs of the Union in South Australia to bring a dispassionate open mind to the hearing of the charge. Moreover, the events charged actually occurred at a State Council meeting. In these circumstances not only was the view open that the charges could not fairly be dealt with by an organ of the Union in South Australia, but, in my view, any other opinion would be difficult to support.
4. Invalidity of direction under rule 13.14
The fourth submission advanced in support of the grant of a rule to show cause is that the resolution of 5 October 1999, directing Mr Noack not to perform duties, is invalid as the rule under which it was made - that is, rule 13.14 - in the circumstances of this case brought about a result contrary to s 195(1)(c) of the Act. This submission is described by counsel for Mr Cameron and the Acting National President as “a sideshow” in the sense that the resolution does not, in any event, run beyond 28 October 1999. It is submitted that the shortness of the direction could not warrant the intervention of the Court in proceedings under s 209. With that particular submission I agree, but of more substance are the merits of other arguments against the submission.
The submission is put first on the basis that the resolution is invalid because of the failure to follow the procedural requirements of rules 8 and 9. I have already rejected the arguments that such a failure occurred. In my view it is clear from the terms of the resolutions that Mr Noack was not being removed from office within the meaning of s 195(1)(c). Although Hills v Higgins (1982) 1 IR 149 concerns the meaning of the word “dismissal”, the observations of the Court at 158 and 159 remain pertinent to the construction of s 195(1)(c). The notion of removal from office requires that the action taken against the official be final and permanent. In the present case there was nothing final or permanent about what occurred.
5. Ulterior purpose
The fifth submission advanced on Mr Noack’s behalf is that the actions of the National Secretary in bringing the charge before the National Council and the actions of the National Council in passing the resolutions it passed were exercises of power for an ulterior purpose. In deciding whether this submission warrants the grant of a rule to show cause I agree with Mr Pearce that I should take the material advanced by Mr Noack at its highest. I then ask whether there is a realistically arguable case, on those facts that the resolutions of the National Council and the actions of the National Secretary were invalid because they were for an improper purpose?
A number of points are to be noted. First, the onus would be on Mr Noack to establish that the actions and decisions were made for an improper purpose. Secondly, the allegation is that the National Secretary had another agenda, namely to further his own political interests, but the resolutions of importance were made by the National Council, which comprises many other people besides the National Secretary. Thirdly, the rules required the National Secretary to bring the charges before the National Council in any event. He had no option but to do as he did, and the National Council was obliged by the rules to consider the charge. The only room for an ulterior motive to influence the course of events would have been in the making of the decision that the National Council rather than the State Council or State Conference hear the charge.
I agree with Mr Pearce’s submission that the outstanding matters of bias in the proceedings heard by Marshall J rationally support the bona fides of the decision that the matter be heard by the National Council. I have already dealt with the question of whether the evidence established a basis for such a decision. For the reasons then given, I do not think that it is arguable, on the evidence advanced by Mr Noack, that the decision of the National Council to hear the charges itself was not made bona fide for a proper purpose.
It is contended by Mr Noack that the fact that the decisions were made before expiration of the period for appeal from the decision of Mansfield J, is indicative of unseemly haste and an ulterior purpose. I reject that submission. The rules require that any charge be considered at the next meeting of the National Council after a response is received. The rules contemplate that charges will be dealt with expeditiously. Moreover, there was no suggestion made by Mr Noack in his letter of 1 October 1999, or at all until his affidavit in support of the present application was filed, that he intended to appeal.
6. Unfair procedures
The final point that is advanced in support of the application for a rule to show cause is that the procedures proposed in the resolution passed on 23 September 1999 are unfair because they do not provide for a secret ballot. In my opinion the short answer to that submission is that the procedures are silent on how a vote is to be taken. There is no evidence that any vote will not be secret. There is much force in Mr Noack’s present submission that fairness requires a secret ballot, but it can be expected that the force of that view will be just as apparent to the National Council as it now is to Mr Noack, and that the National Council will make its decision by secret ballot.
In my opinion Mr Noack has not established any arguable ground that the resolutions of the National Council made on 5 October 1999 are invalid or contrary to the rules, and it is pursuant to the resolutions of that day that events are now taking place. I consider the
application for a rule to show cause should be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.
Dated:
Associate:
Counsel for the Applicant:
Mr F Di Fazio
Solicitor for the Applicant:
Moloney & Partners
Counsel for the Respondent:
Mr J H Pearce with Mr D Shoebridge
Solicitor for the Respondent:
Taylor & Scott
Date of Hearing:
20 October 1999
Date of Judgment:
21 October 1999
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