Police Federation of Australia-Australian Federal Police Association Branch

[2016] FWCD 3395

[2016] FWCD 3395

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Police Federation of Australia
(E2016/60)
MR ENRIGHT	MELBOURNE, 30 MAY 2016
Arrangement for conduct of election.

[1]        On 22 January 2016 the Australian Federal Police Association Branch (the Branch) of

the Police Federation of Australia lodged with the Fair Work Commission (the Commission)

the prescribed information in relation to an election for casual vacancies for the remainder of

the term of office in the following offices:

Branch Vice President AFP ACT Operations Portfolio	(1)
Branch Vice President AFP Close Operations Portfolio	(1)

1

[2] In a decision issued on 19 February 2016 I made arrangements for the conduct of an

election to fill the office of Branch Vice President AFP Close Operations Portfolio. In relation

to the Branch Vice President AFP ACT Operations Portfolio I instead stated:

The circumstances surrounding the vacancy said to arise in the office of Branch Vice

President AFP ACT Operations Portfolio are potentially more complex. Officers from

the Fair Work Commission are currently engaging with officers of the Branch on my

behalf in relation to the matter and I will determine whether or not to make

2

arrangements for the conduct of an election in due course.

[3]        This decision determines the request to make arrangements for the conduct of an

election in the office of Branch Vice President AFP ACT Operations Portfolio.

[4]        The chronology of the matter can be summarised as follows.

[5]        On or about 6 November 2015 Branch National President Jon Hunt-Sharman resigned

from office.

3

[6] Mr Hunt-Sharman was declared elected to that office on 1 May 2013. The Branch

4

National President’s term of office is four years. If a casual vacancy occurs in the office of

Branch National President and less than three quarters of the term of office remains, the

5

vacancy may be filled by appointment.
[2016] FWCD 3395

[7]        After noting that there was less than three quarters of the term of office remaining, the

Branch National Executive resolved to fill the casual vacancy caused by Mr Hunt-Sharman’s

6

resignation by appointment from amongst the membership of the National Council.

[8]        At a Special Branch National Executive Meeting on 11 November 2015 the Branch

National Executive appointed Ms Angela Smith to the office of Branch National President for

7

the remainder of the term of office under Branch Rule 73(d)(i)(a), effective immediately.

[9]        Prior to her appointment Ms Smith held the office of Branch Vice President AFP ACT

8

Operations Portfolio. As a Branch Vice President, Ms Smith was a member of the Branch

9

National Council as required by Branch Rule 73(d)(i)(a).

[10]      Ms Smith did not tender a resignation from the office of Branch Vice President AFP

ACT Operations Portfolio when she ascended to the office of Branch National President.

Nonetheless, “where the rules of an organization do not permit a person to hold more than one

10

office, assumption of a second office will vacate the first by implied resignation.” This legal

concept, known as the doctrine of incompatible offices, has been held to apply to

organisations registered under legislative antecedents to the Fair Work (Registered

Organisations) Act 2009 (the Act). The doctrine will apply “unless it is excluded by clear

11

words” in the rules of the organisation. In the case of the Branch Rules, the doctrine does

not appear to be excluded by clear words in the rules. The relevant provisions of the Act are

not distinguishable from the legislation under consideration when the doctrine was held to

apply to registered organisations

[11]      I note at this juncture that the present controversy centres on whether Ms Smith’s

appointment at the 11 November 2016 Special Meeting of the Branch National Executive was

valid. If Ms Smith was validly appointed as Branch National President, then a casual vacancy

was triggered in the office of Branch Vice President AFP ACT Operations Portfolio after she

took up the appointment. If she was not, Ms Smith remains the Branch Vice President AFP

ACT Operations Portfolio and I can therefore not be satisfied that an election to fill a casual

12

vacancy in that office arises under the rules of the organisation.

[12]      On 8 December 2015 Mr Dennis Gellatly wrote to the Regulatory Compliance Branch

of the Commission. Mr Gellatly is the Chief Executive Officer of the Branch. Mr Gellatly is

13  14

an elected officer of the Branch,	a member of the Branch National Council	and a member
15

of the Branch National Executive. It is convenient to note that when regard is had to Mr

16

Gellatly’s powers and duties under the Branch Rules and the fact that he is an elected

official, he holds an office which would routinely be described as Branch Secretary in the

rules of many registered organisations of employees.

[13]      Mr Gellatly’s correspondence set out a number of concerns. Relevantly, Mr Gellatly

stated: 

[O]n 11 November 2015, 4 members of Branch National Executive (four voting

members), convened and appointed Ms Smith as the replacement AFPA President…

As the CEO of the Association, I subsequently sought a legal advice in relation to the

appointment and circumstances surrounding the appointment. According to legal

advice received on 26 August 2015 and 24 November 2015 (Attached) it is understood

that the meeting on 11 November 2015 and the appointment made during that meeting

17

is invalid under AFPA Branch Rule 77(b).

[2016] FWCD 3395

[14]      Copies of legal advice dated 26 August 2015 and 24 November 2015 were appended

to Mr Gellatly’s letter.

[15]      Mr Gellatly wrote to the Commission again on 23 December 2015. On this occasion

the correspondence was addressed to the Commission’s General Manager. In that

correspondence, Mr Gellatly made a number of allegations, including an allegation that “false

or misleading statements [have been made] by Brach Office Holders under s.233(3) of the

18

Fair Work (Registered Organisations Act 2009” Those allegations will be separately

addressed by the Fair Work Commission’s Regulatory Compliance Branch. Relevant to my

present task under section 189 of the Act, Mr Gellatly elaborated on his 8 December 2015

contention as follows:

[A]ccording to legal advice received by the AFPA on two occasions (Attached), a series

of meetings of a group of the Branch National Executive have not been convened in

accordance with AFPA Branch Rules. Legal advice relied upon goes on to state that

resolution or decisions made as any such meeting is invalid and as such, the

“appointment of Ms Smith as the replacement president at one of these meetings is

also invalid. The group of Executive members have been advised several times of both

the invalidly convened meetings and invalid resolutions, yet they persisted.

…

Consistent with that advice I have advised certain members of the AFPA National

Executive in relation to their conduct of a series of meetings purporting to be ‘special’

or ‘extraordinary’ meetings of the Branch National Executive of the fact those

meetings have not been convened in accordance with Branch Rule 77(b) rendering

both the meetings and any decisions or resolutions made thereat, invalid.

[16]      Copies of the 26 August 2015 and 24 November 2015 legal advice were again

attached to Mr Gellatly’s letter, along with some other material intended to support his

19

position.

[17]      By letter dated 8 February 2016 Mr Gellatly again wrote to the General Manager of

the Commission, “in furtherance to my correspondence... dated 23 December 2015…

[because] I thought it may be of assistance to the FWC if further information was provided in

20

support of my earlier correspondence”.

[18]      In addition to reiterating his arguments Mr Gellatly provided copies of, amongst other

things: 

[an e]mail dated 4 September 2015 by the former AFPA Branch National President

which outlines the requirement for joint agreement of the President and CEO to

convene a special executive meeting. All members of the Executive at that time were

copied into the email including Ms Angela Smith and Mr Ian Bridle.

and

A number of emails from myself as CEO, based on independent legal advice, that the

convening of a special executive meeting required the joint agreement of the CEO and

[2016] FWCD 3395

President, otherwise the meeting and any decision or resolution made there at was

21

invalid.

[19]      According to Mr Gellatly, this material:

[D]emonstrates that members of the AFPA Branch executive, as early as September

2015, knew of the requirement for joint agreement of the President and CEO to before

a special executive meeting could be properly convened under Branch Rules.

22

Regardless, they proceeded to convene meetings in breach of Branch Rules.

[20]      In addition, Mr Gellatly contended:

On 16 December 2015, members of the Executive demonstrated their understanding of

the requirement under the Branch Rules that joint agreement between the President and

CEO was necessary before a special meeting of the Executive could be convened, in

that they delegated the authority of the CEO to another member of the Executive, Mr

23

Bridle.

[21]      After issuing my decision of 19 February 2016 the Regulatory Compliance Branch

wrote to Ms Smith on 1 March 2016. That correspondence referred to Mr Gellatly’s

argument, noted that “[i]f, as Mr Gellatly asserts, the meeting at which you were appointed

24

was not properly convened, it could not validly transact business”	and requested advice
about:

 when the Branch Chief Executive Officer and the Branch National President last

jointly decided to hold a Special Meeting of the Branch Executive;

 whether that meeting took place; and

 having regard to the methods for convening meetings set out in Branch Rules 77(a)

and (b) how had subsequent meetings of the Branch Executive, including the 11

November 2015 meeting, been held?

[22]      Ms Smith responded through submissions lodged by the Branch’s solicitors on 10

March 2016.

[23]      Mr Gellatly was offered and took up the opportunity to respond to the material put on

behalf of Ms Smith and the Branch. Submissions in reply were lodged by his solicitors on 22

March 2016. I note in passing that the author of these submissions was not the Counsel

engaged to provide opinions to Mr Gellatly in August and November 2015.

[24]      Final submissions were lodged on behalf of the Branch on 15 April 2016.

[25]      In their submissions of 22 March 2016 Mr Gellatly’s solicitors stated that their client

had not had the opportunity to sight the Special Branch Executive Meeting Minutes relied on

25

by the Branch. I therefore caused copies of those Minutes to be forwarded to Mr Gellatly’s

solicitors on 20 April 2016, along with a direction that any submission Mr Gellatly wished to

make about the Minutes had to be lodged by the close of business on 28 April 2016. No

material was lodged in reply, nor was an extension of time for complying with the direction

sought.

[2016] FWCD 3395

[26]      Some time has passed since the last day for lodging material in the matter. This is

largely because I accommodated a request from the Australian Electoral Commission to hold

off determining the matter until orders were made by the Federal Court of Australia in an

26

election enquiry pertaining to an election for other offices within the Branch. Those orders

were made by Her Honour Justice Katzmann on 5 May 2016 and served on the Commission

27

on 17 May 2016.

[27]      The chronological summary above does not set out every contention relied on or refer

to every piece of material which was lodged. I intend to adopt the same approach when

referring to the submissions made on the Branch and Mr Gellatly’s behalf. I have however

had regard to all that has been put by both parties in reaching my decision.

[28]      Branch Rule 77 states:

77 - MEETING OF BRANCH NATIONAL EXECUTIVE

(a) The Branch National Executive shall meet at least every three months and at

such other times as may be necessary, through either a physical meeting or a meeting

conducted by electronic means or telephone conference.

(b) Special meetings of the Branch National Executive shall be held by resolution

of the Branch National Council or Branch National Executive or by joint decision of

the Branch Chief Executive Officer in conjunction with the Branch National President.

(c) The Branch Chief Executive Officer shall give each member of the Branch

National Executive at least 7 days notice for a meeting of Branch National Executive

and at least 48 hours notice of any special meeting thereof.

[29]      So far as it relevantly deals with casual vacancies Rule 73 states:

(d) Extraordinary Vacancy

(i)          Where an extraordinary or casual vacancy (howsoever occurring) arises

in the Office of the Branch National President, Branch Chief Executive

Officer, Branch Vice President AFP ACT Operations Portfolio, Branch Vice

President AFP Chief Operating Officer Portfolio, Branch Vice President AFP

Close Operations Portfolio, Branch Vice President AFP Executive & AFPA

Associate Portfolio, Branch Vice President AFP National Security Portfolio

and the Branch Vice President AFP Operations Portfolio; then the Branch

Chief Executive Officer or in the case of casual vacancy in the office of Branch

Chief Executive Officer, the Branch National President, shall take immediate

action to have such vacancy filled provided that:

…

(b) where the unexpired portion of the term of office in which the

vacancy occurs exceeds three quarters of the term, the Branch National

Executive may fill such vacancy by appointment of an eligible member

of the Branch until an election is held, provided that no person so

appointed shall hold office for a period exceeding three months.

[2016] FWCD 3395

[30]      At issue here is the mechanism by which Branch Executive may meet “at such other

times as may be necessary”.

[31]      A Special Meeting of the Branch National Executive was held by joint decision of the

Branch Chief Executive Officer in conjunction with the Branch National President on 8

28

September 2015.

[32]      There is some evidence that at its 8 September 2015 meeting, Branch Executive

resolved to meet again on 16 September 2015. In any event, the Branch Chief Executive

Officer and Branch National President jointly agreed to call another Special Meeting of the

Branch National Executive on 16 September 2015 and notice of that meeting was given to

29

Branch Executive Members. Mr Gellatly subsequently sought to withdraw his consent for

30

that meeting to occur . Minutes supplied by the Branch indicate that the Branch Executive

31

met anyway. Mr Gellatly did not attend, “saying he had to seek medical assistance”.

[33]      Mr Gellatly submits that he withdrew:

… his necessary consent to that meeting going ahead. As a consequence, that special

meeting was not, and could not be regarded as, a meeting held – and we place

emphasis on that word, as the clear purpose of Rule 77 is to set out the circumstances

in which special meetings can be held, rather than called – by joint decision between

the Branch National CEO and Branch National President. That being the case, any

32

business purportedly transacted at that meeting must necessarily be of no effect.

[34]      I am unable to accept this submission. The seventh edition of Horsleys’ Meetings,

Procedure Law and Practice states:

After a notice of meeting has been validly issued, the meeting is not able to be cancelled

or even postponed unless the rules or standing orders permit this, which would be

unusual: Bell Resources Ltd v Turnbridge (1988) 13 ACLR 429; McPherson v Mansell

(1994) 16 ASCR 261; McKerlie v Drillsearch Energy Ltd (2009) 74 NSWLR 673;

(2009) 72 ACSR 288. In fact, once an actual resolution has been passed to convene a

33

meeting a similar situation occurs: Smith v Paringa Mines Ltd [1906] 2 CH 193.

[35]      There is no Branch rule which permits the cancellation of a Special Meeting of the

Branch National Executive. Nor does the scheme of the rules taken as a whole contemplate

this eventuality. The purported withdrawal of Mr Gellatly’s necessary consent to the 16

September 2015 meeting was ineffective. Mr Gellatly places too narrow an emphasis on the

word “held”. In my view, once a joint decision of the Branch Chief Executive Officer in

conjunction with the Branch National President has been made, a Special Meeting of the

Branch National Meeting shall be held. “Shall” in Branch Rule 77(b) is mandatory. A

meeting must occur once one of the three criteria in Branch Rule 77(b) are met.

[36]      Beyond 8 or 16 September 2016, there is no dispute that Special Meetings of the

Branch National Executive were not held by joint decision of the Branch Chief Executive

Officer in conjunction with the Branch National President. There is no suggestion they were

held by resolution of the Branch National Council. The Branch does not submit (nor does Mr

Gellatly concede) that the 11 November 2016 meeting at which Ms Smith was purportedly

appointed was the quarterly meeting contemplated in the first line of Branch Rule 77(a).

[2016] FWCD 3395

[37]      What remains is whether the meetings which were held were “Special Meetings of the

Branch National Executive… held by resolution of the… Branch Executive” per Branch Rule

77(b).

[38]      Mr Gellatly submits:

If the CEO does not concur with the calling of a Special Meeting of the Branch

National Executive, the only way that Executive can be legitimately assembled is

either by resolution of the Branch National Council or by resolution of the Branch

National Executive. A Special Meeting of the Branch National Executive is one which

is held other than a meeting held in accordance with Rule 77(a), being a meeting of the

Branch National Executive held "every 3 months". A meeting of the Branch National

Executive which is held in accordance with Rule 77(a) could determine that a Special

Meeting of that Executive would be held at some post-date. Such a determination

could be made without the CEO's concurrence. That meeting of the Branch National

Executive authorising a Special Meeting would, however, be the regular meeting held

in accordance with Rule 77(a).

…

In other words, in my opinion, other than the regular 3 monthly meeting of the Branch

National Executive, as determined in Rule 77(a) and as may be authorised by the

Branch National Council biennial meeting, a Special Meeting of the Branch National

Executive could only, in practice, be called by a joint decision to that effect made by

34

both the CEO and the Branch National President. (footnotes omitted)

[39]      In Mr Gellatly’s submission, this interpretation “reflects a plain and common sense

interpretation of Rule 77… It is clear from the plain language of Rule 77 that special meetings

are the exception, rather than the norm, and intended to only be held in limited

35

circumstances”.

[40]      The Branch submits that

In our submission there is simply no basis for interpreting Rule 77 (b) in the confined

way that [Mr Gellatly’s Counsel] Mr Warren propounds… With respect to Mr Warren,

his construction of Rule 77 is incorrect. We submit that the National Executive has the

right to convene a meeting of the National Executive by a resolution fixing such a

meeting at a previous meeting, whether it is "special" or not… there is nothing

anywhere in the Rules to suggest that such a resolution cannot be adopted at Special

36

meeting of the National Executive.

and:

An abiding principle for the interpretation of Rules of registered organisations is that,

while the words used are to be given their normal or ordinary meaning, "they are not

to subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers,

and should not be restrictively construed" Mr Warren's interpretation seriously

offends that principle, by seeking to restrict the words used in a way that is not

obvious from the Rules and which has negative practical impacts if adopted. Indeed,

his opinion does not only seek to restrict the plain meaning of the Rule, it has the

[2016] FWCD 3395

effect of negating the clear intention of Rule 77 (b): that is, the mechanism of

agreement between the President and the CEO for the calling of a Special National

Executive meeting is clearly a facilitative provision (ie an additional option for calling

such meetings), but on Mr Warren's interpretation of Rule 77 it operates as a

restriction on the capacity for Special National Executive meetings to be called

37

otherwise. (citations omitted)

and finally:

the Rule does not impliedly limit the number of meetings (whether special or not) that

the National Executive may hold if it wishes to do so... there is nothing absurd at all

about an interpretation of the Rules that would allow the calling of multiple special

meetings, if the National Executive resolved (as it has here) to do so. They after all

have the responsibility to manage the affairs of the Association between meetings of

38

the National Council.

[41]      I concur with the position adopted by the Branch. Branch Rule 77(b) requires a

Special Meeting of the Branch National Executive to be held if, amongst other things, the

Branch Executive resolves that a meeting shall occur. Branch Rule 77(b) is silent as to the

type of Branch Executive meeting which may so resolve. There is nothing elsewhere in

Branch Rule 77 or within the Branch Rules generally that limits the type of Branch Executive

meeting which may so resolve.

[42]      In J.J Richards & Sons Pty Ltd v Fair Work Australia, His Honour Justice Flick of the

Federal Court referred to the following “long established and fundamental principles of

statutory construction”:

“First, the so-called ‘golden rule’ of the common law as to statutory construction is

that “the grammatical and ordinary sense of the words is to be adhered to, unless that

would lead to some absurdity, or some repugnance or inconsistency with the rest of

the instrument, in which case the grammatical and ordinary sense of the words may be

modified, so as to avoid that absurdity and inconsistency, but no farther…

Second, the common law also recognised that ‘[i]t is a strong thing to read into an Act

of Parliament words which are not there, and in the absence of clear necessity it is a

wrong thing to do…

Third, a construction of a statutory provision is to be preferred ‘that would best

achieve the purpose or object of the Act’: Acts Interpretation Act 1901 (Cth) s 15AA.

The requirement to look to the purpose or object of an Act is more than an instruction

to adopt the traditional mischief or purpose rule in preference to the literal rule of

construction; s 15AA requires no ambiguity or inconsistency in a statutory provision

before a court is not only permitted, but required to have regard to purpose…”.

39

(citations omitted)

[43]      The rules of organisations registered under the Act do not have the status of statutes. It

is well established that the rules of registered organisations should be read in a practical and

common sense way which avoids giving them an unduly technical, narrow or legalistic

construction. In this regard I accept the Branch’s submission, set out in paragraph [37] above,

that while the words used are to be given their normal or ordinary meaning, "they are not to
[2016] FWCD 3395

subjected to the same meticulous scrutiny as a deed carefully prepared by lawyers, and

should not be restrictively construed. However, I do not believe that the “golden rules” of

statutory construction are of no assistance in construing the rules of registered organisations,

including the Branch Rules under consideration.

[44]      The grammatical and ordinary sense of the words contained in Rule 77(b) suggest that

the Branch Executive may resolve to hold a Special Branch National Executive meeting.

There is no restriction on the number of times that it may do so or the type of Branch National

Executive Meeting which may pass the resolution to hold the special meeting. No repugnance

or inconsistency arises when the interpretation is looked at in the context of Branch Rule 77

or the Branch Rules as a whole. Nor, for the reasons submitted by the Branch, does any

absurdity arise.

[45]      To adopt the construction contended for by Mr Gellatly requires me to read the word

“quarterly” or “regular” or some synonym thereof into Branch Rule 77(b). There is no clear

necessity to do so.

[46]      Turning to relevant purposes, rules of an organisation dealing with convening

committee of management meetings were considered by Smithers J in Egan v Maher:

In construing rules in a matter of this kind it is proper to have in mind that meetings of

the governing bodies of representative organizations are essential to the achievement

of the objects of such bodies. Accordingly a resolution of questions in manner

facilitating the holding of meetings rather than frustrating it is to be preferred. A

meeting of the Committee of Management to conduct the business of the Branch is

prima facie a beneficial act in the course of the Branch government and there is every

reason to refrain from taking a narrow or destructive view of the provisions for calling

40

such meetings.

[47]      Each of these considerations favours the construction of Branch Rule 77(b) advanced

by the Branch. In my view any meeting of the Branch National Executive may resolve to hold

a Special Meeting of the Branch National Executive.

[48]      For completeness I note Mr Gellatly’s submission set out in paragraph [19] above. I

understand the substance of that submission to be that the Branch Executive demonstrated

their acceptance of Mr Gellatly’s position by delegating to one of their own power to jointly

call Special Branch National Executive meetings. This was done some time after Ms Smith’s

appointment.

[49]      I accept the Branch’s response to this submission. The Branch submitted:

This initiative was taken by the National Executive by resolution on 16 December

2015, after Mr Gellatly commenced a period of personal leave that the National

Executive apprehended might be lengthy (indeed he is still on personal leave now). It

was intended for the Christmas/New Year/January period, to allow a Special National

Executive meeting to be convened without fixing one in advance for that period when

it might not be needed. Up until that resolution was adopted, the National Executive

had convened its meetings, post 8 September 2015, by resolution at a previous

meeting.

[2016] FWCD 3395

But, in any case, the adoption of such a resolution is not inconsistent with the

41

interpretation of Rule 77 for which we contend.

[50]      The Branch produced minutes for each of the Special Branch National Executive

Meetings held between 16 September 2015 and the 11 November 2015 meeting at which Ms

Smith was appointed. In each case the Minutes include a resolution to convene the next

Special Branch National Executive Meeting.

[51]      Mr Gellatly “urge[d] the Commission to exercise caution in accepting the veracity of

42

minutes of any special meeting of the Branch National Executive” and sought to cast doubt

on the accuracy of the Minutes. I am not persuaded by this submission. It was made when Mr

Gellatly had not seen any of the Minutes in question and was unaware of their content. As

noted in paragraph [22] above, Mr Gellatly sought and obtained copies of the Minutes and

was invited to elaborate on his concerns. He did not do so.

[52]      I am satisfied that a Special Branch National Executive Meeting took place on 11

November 2015 and that Ms Smith was validly appointed to the vacant office of Branch

National President at that meeting.

[53]      There are two final issues that must be addressed.

[54]      First, Mr Gellatly submits that Ms Smith was appointed in a manner contrary to

Branch Rule 73(d)(i). Mr Gellatly relies on the following legal advice:

Rule 73(d)(i) relevantly, in circumstances where there is a casual vacancy in the

position of Branch National President, directs the CEO to "take immediate action to

have such vacancy filled". I do not take these words quoted as meaning that the vacant

office of National President needs to be filled immediately, rather the CEO is obliged

to immediately commence the process to have the vacancy filled, which process must

be in accordance with the rules.

…

I do not consider that rule 73(d)(i)(a) provides an option for the National Executive to

43

take if the CEO does not take immediate action to have a casual vacancy filled.

[55]      I do not accept this submission. It ignores the proviso: “provided that” at the

conclusion of the sub rule. That proviso vests in the Branch National Executive the power to

fill a relevant casual vacancy in certain circumstances. That proviso was utilised in the present

44

case.

[56]      Secondly, Mr Gellatly submits that the process used to fill the National President

vacancy was not appropriate. He stated:

Without any prior discussion with other members of the Branch National Council

(BNC), who under the Rule 73(d)(i)(a) also are entitled to be considered for

appointment, on 11 November 2015, 4 members of Branch National Executive (four

voting members), convened and appointed Ms Smith as the replacement AFPA

President.

[2016] FWCD 3395

Members of the BNC have since questioned the legitimacy of the appointment under

45

the Rules.

[57]      There is nothing in the Branch Rules which mandates such a process. Branch Rule

73(d)(a)(i) merely requires the Branch National Executive to appoint an eligible member of

the Branch Council. It is silent as to the manner by which one eligible Branch Council

member is chosen over the next. Ms Smith was a member of the National Council. No one

has suggested she was not an eligible member. This challenge must also fail.

[58]       I am satisfied that Ms Smith was validly appointed to the office of Branch National

President. The office of Branch Vice President AFP ACT Operations Portfolio became vacant

as a consequence. I am therefore satisfied that an election for the office of Branch Vice

President AFP ACT Operations Portfolio is required to be held under the rules of the

organisation and, under subsection 189(3) of the Act, I am making arrangements for the

conduct of the election by the Australian Electoral Commission.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580832>

10

See Johnson v Beitseen [1989] FCA 80 at paragraphs 43 – 47; See also Mellor v Horn [1988] FCA 214 at paragraphs 7 – 9

11

Ibid

12

See subsection 189(3)(b) of the Act.

13

See E2012/411, declaration of returning officer dated 1 May 2013 and Branch Rule 66(a)(ii).

14

See Branch Rule 67(a)(i).

15

See Branch Rule 76(a).

16

See Rule 80

17

Correspondence from Dennis Gellatly to Ms Debbie Ball dated 8 December 2015 at pages 1 – 2.

18

Correspondence from Dennis Gellatly to Ms B. O’Neill dated 23 December 2015 at page 1.

19

Ibid at page 2.

20

Correspondence from Dennis Gellatly to Ms B. O’Neill dated 8 February 2016 at page 1.

21

Ibid at page 2.

22

Ibid at page 2.

23

Ibid at page 2.

24

Correspondence from M. Elliott to A. Smith dated 1 March 2016. Note that the quoted point referred for instance to

Joske’s Law and Procedure at Meetings In Australia Tenth Edition, Lawbook Co, 2007 at 3.05

25

Correspondence from Ben Tallboys, Russell Kennedy Lawyers of 22 March 2016 at pages 2 – 3.

26

See NSD1038/2015

27

See R2016/86.

28

P. Punch’s 10 March 2016 submissions on behalf of the Branch at page 2 and B Tallboy’s 22 March 2016 submissions for

Mr Gellatly at page 1.

29

B Tallboy’s 22 March 2016 submissions for Mr Gellatly at page 1.

30

Ibid at page 1

31

P. Punch’s 10 March 2016 submissions on behalf of the Branch at page 3 and Attachment II.

32

B Tallboy’s 22 March 2016 submissions for Mr Gellatly at page 1.

33

Horsleys’ Meetings, Procedure Law and Practice; 7th Edition; AD Lang; LexisNexis Butterworths; Australia 2015 at 4.19.

34

Advice given to Mr Gellatly by R.S.Warren on 26 August 2016 at dot point 11; See also Mr Warren’s advice to Mr

Gellatly of 24 November 2016 at dot point 9.

35

B Tallboy’s 22 March 2016 submissions for Mr Gellatly at page 2.

36

P. Punch’s 10 March 2016 submissions on behalf of the Branch at page 5 – 6.

37

P. Punch’s 10 March 2016 submissions on behalf of the Branch at page 6 (paragraph 3).

38

P. Punch’s 15 April 2016 submissions on behalf of the Branch at page 1.

39

[2012] FCAFC 53 at [49]-[53] per Flick J.

40

(1978) 20 ALR 421 at 490 per Smithers J. See also Rennie v Curley [1997] FCA 765 & Geneff v Peterson

(1986) 19 IR 40.

41

P. Punch’s 10 March 2016 submissions on behalf of the Branch at page 8

42

B Tallboy’s 22 March 2016 submissions for Mr Gellatly at page 2.

43

Advice given to Mr Gellatly by R.S.Warren 24 November 2016 at paragraphs 12, 15.

44

See 4 November 2015 Special National Executive Meeting Minutes at resolution10.3; 6 November 2015 Special National

Executive Meeting Minutes at resolution 10.3.2 point 6; 11 November 2015 Special National Executive Meeting Minutes

at resolution 10.3.1

45

Correspondence from Dennis Gellatly to Ms Debbie Ball dated 8 December 2015 at page 1

1

[2016] FWCD 835; PR576842.

2

[2016] FWCD 835 at paragraph [4].

3

See E2012/411, declaration of returning officer dated 1 May 2013. See also Branch Rule 73(1)(a).

4

See Branch Rule 73(1)(a).

5

See Branch Rule 73(d)(i)(a). The proper application of this rule will be returned to below.

6

See Final Minutes of 4 November 2015 Special Branch National Executive Meeting - resolution carried in relation to

motion 10.4.

7

See Final Minutes of 11 November 2015 Special Branch National Executive Meeting - resolution carried in relation to

motion 9.1.

8

See E2015/116, declared 17 June 2015.

9

See Branch Rules 66(a)(iii) and 67(a)(i).