Peak, R. v Sanders, J.H

[1991] FCA 209

GENERAL DISTRIBUTION NOT REQUIRED JUDGMENT No. &?/ ?! ..,,,,!

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 NO. V1 33 OF 1991

' 1

INDUSTRIAL DIVISION	)
B E T W E E N :

RUPERT PEAK

Applicant

A N D :

J.H. SANDERS. C. KEILY. K. WISE, H.E. WEIR. G.R. NEWMAN. R.J. HORE, B.R. AGG, D. CRUMP . K. J. CONNORS, S. McGEE, G. WOOD. J.M. BILTRIS, J.B. WHITE. D.A. PORTER and P. POWER

Respondents

22 APRIL, 1991 KEELY J.

REASONS FOR JUDGMENT

On Wednesday last, 17 April 1991, the court reserved its decision on an application by Mr. Rupert Peak ("the applicant") for interlocutory orders, pending the hearing of a

Union") purported to appoint the applicant to the position of	organiser. The applicant has deposed that it did but Mr.
Saunders, the first-named respondent, has deposed that the applicant "was appointed as a field officer employee of the Branch" On that question of fact there is plainly a serious question to be tried. It may be added that the applicant's counsel has conceded (transcript p. 31), correctly in my opinion, that, if the applicant at the trial failed on that question of fact, he could not succeed in having the rule to show cause made absolute.
However, I have decided to accept the submission by counsel for certain respondents (transcript p. 73) that, on the material before the court at this stage, the applicant was not eligible to hold the position of organiser in the Branch, and could not, as a matter of law, have been validly so appointed; accordingly the applicant was never validly appointed as an organiser even if the Branch Committee of Management purported to appoint him as an organiser, which the applicant contends it did.
The respondents' submission was based upon rule 22(b)(iii) of the rules of the Union, which relevantly read as follows :

rule to show cause, granted by Ryan J. on 11 April 1991. Having considered the matter and read the transcript of the hearing, I have decided to refuse the application.

It is clear that there is a dispute between the parties as to whether, as a matter of fact, the Branch Committee of Management of the Transport Workers Union of Australia ("the

"22. Eligibility to Nominate For and Hold Office

(b) Subject to para (a) hereof a person is eligible to hold the office of -

. . . .

(iii) Organiser (whether elected or
appointed);

if he is a financial member of the Union continuously for the previous three years and is financial at the time of his nomination for election (or appointment as

the case may be) but not otherwise. ''

On the evidence before the court (exhibit l), the applicant applied to become a member of the Union on 30 July 1987 and his membership began on that day; it follows that, at the date of his alleged appointment as an organiser in September 1989, the applicant was not eligible to be validly appointed as an organiser because he had not been "a financial member of the Union continuously for the previous three years" as required by rule 22(b)(iii).

It follows that, subject to an argument advanced by his counsel based upon S. 258 of the Act, which will be considered later in these reasons, the applicant cannot show that there is a serious question to be tried. Accordingly, it is not necessary to consider the other arguments advanced by counsel for certain respondents, directed to the "balance of

convenience" aspect of the case. Those arguments included a

be able to be a candidate at the next election even if he	submission (transcript pp. 48-51) that (1) the applicant would
failed to obtain interlocutory orders - this was put in response to an argument by the applicant's counsel; (2) damages would be an adequate remedy in respect of any loss of wages by the applicant; counsel contrasted that position with the likely effect upon the Branch if the applicant failed at the trial of the action after the court had granted the interlocutory orders sought; (3) the court, in its discretion, should not make the orders sought because the applicant was "in effect seeking specific performance of a contract of
employment " .
The argument advanced by the applicant's counsel as to S. 258 (transcript p. 36) was to "simply point to section 258, and we say, in those circumstances it's our right or entitlement to make an application under S. 258 to rectify the consequences of the invalidity in the appointment of the applicant."
That statement led to some questions to counsel from the court as to whether such an application under S. 258 could succeed and as to what order the court would be asked to make "to rectify the validity". Having considered that question since reserving my decision, in my opinion the material before the court does not disclose any basis upon which the court could consider it "appropriate" to "rectify the validity"; on the material before the court at this stage, the applicant was
not eligible under the rules to be appointed as an organiser in September 1989 - the time when he claims to have been so
appointed.
If the applicant applies to the court under S. 258, claiming that "an invalidity has occurred in ... [his] appointment in . . . the Branch", it might be necessary for the court to consider whether an application, based on the evidence presently before the court, could properly be brought under that section. Further, if such an application could be brought, the court could only make "such order as it considers appropriate" (S. 258(3)). Nothing that has been put in the present hearing shows that such an order would be "appropriate"; on the contrary, such an order would fly in the face of the Union's rules, which have expressly provided that, in order to be appointed as an organiser, a person must have been "a financial member ... for the previous three years".
In my opinion, on the material before the court, the applicant has failed to demonstrate that there is a serious question to be tried. The application fox interlocutory orders is refused.
I certify that this and the four preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 22 April, 1991
Associate:
Date: 22 April, 1991