Price, J. v Hodgson, I.
[1992] FCA 329
•15 MAY 1992
Re: JOHN PRICE
And: I. HODGSON; K. McGRATH; R. HEFFERNAN; B. McINTOSH; P. SCHULZ; J. McLEAN;
R. WEARING; C. KEILY; S. HUTCHINS; J. ALLAN; A. McPAUL; L. WARD; F. GARRETT;
K. BACON; B. HANSCH; S. McGEE; J. SANDERS; J. O'CONNOR; R.W. DUNN and J.L.
McGIVERON
No. V I27 of 1992
FED No. 329
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - registered organisation - rules - performance and observance - casual vacancy in office - power of branch committee of management to fill - whether exercisable during holding over period after expiration of term of office.
Industrial Law - registered organisation - rules - performance and observance - interim order - considerations appropriate for grant - urgency - effectively final relief sought.
Industrial Relations Act 1988 s. 209, 221, 255.
Mellor v. Horn (1988) 25 IR 157
Egan v. Maher (No. 2) (1978) 35 FLR 252
Johnson v. Beitseen (Federal Court of Australia, Gray J., 21st March 1989, unreported)
HEARING
MELBOURNE
#DATE 15:5:1992
Counsel for the applicant: H. Borenstein.
Solicitor for the applicant: Harry Nowicki and Co.
Counsel for the respondents
other than the 5th, 8th, 16th
and 17th-named respondents: S. Howells.
Solicitors for the respondents
other than the 5th, 8th, 16th
and 17th-named respondents: Ryan Carlisle Thomas.
JUDGE1
The Transport Workers' Union of Australia ("the Union") is an organisation registered under the Industrial Relations Act 1988 ("the Act"). The applicant is a member of the Union. The respondents are alleged to constitute the federal council of the Union, although counsel who appeared for most of the respondents contended that there are two other persons who are members of the federal council, who are not named as respondents in the proceeding.
Rule 5A(a) of the rules of the Union constitutes the federal council, giving it the supreme control of the Union, subject to the Act. The federal council consists of the federal secretary, the federal assistant secretary, the branch secretary-treasurer for the time being of each branch and any additional federal councillor or councillors representing a branch to which such branch is entitled pursuant to rule 5A(b). That sub-rule sets out a formula, under which the entitlement of a branch to additional federal councillors is to be calculated, according to the number of members in the branch concerned. The maximum entitlement is three additional federal councillors. The Victorian branch of the Union is said to be entitled to three additional federal councillors.
By rule 33(a), it is provided that elections should be held in 1979 and every three years thereafter for various offices in branches, including additional federal councillors to which the branch is entitled pursuant to rule 5A(b). The elections which were to be conducted in 1988 as a consequence of this rule were delayed as a result of an inquiry, conducted under Division 5 of Part IX of the Act. As a result of the inquiry, certain orders were made, including an order that the Industrial Registrar make arrangements for the completion of the elections, upon the basis that certain named persons were candidates for specified offices, and one named person was not a candidate for a specified office. The result of the ballot in the elections was declared on 27th September 1989.
The provisions of rule 33 of the rules of the Union contemplate that any ballot in the elections in a branch will be completed early in March of the year following that in which the elections commence. Sub-rule 33(q) provides as follows:
"Members declared elected under this Rule shall take office from the 20th day of April immediately following the declaration of their election and the retiring members shall continue to act in the meantime provided that where there are no retiring members, the successful candidates shall assume office forthwith."
Rule 5A(c) makes specific provision for federal councillors. It provides as follows:
"The Branch Secretary-Treasurer and any other Federal Councillor or Councillors to which a Branch may be entitled shall be elected pursuant to Rule 33 and shall become members of the Federal Council on the 20th April after the date when declared elected. Subject to these Rules, each Federal Councillor shall continue as a member of the Federal Council until his successor takes office..."
As a consequence of the fact that the inquiry into the 1988 Victorian branch elections was not completed until 23rd June 1989, the Court made an order that the operation of rule 33(q) be modified so that persons elected take office immediately upon being declared elected. See Re Porter; Re Transport Workers' Union of Australia (1989) 34 IR 179, at pp 212-213.
Among the persons declared elected on 27th September 1989 were Keith Wise as branch secretary, and Joseph Henry Sanders, Christopher Keily and Steven McGee as additional federal councillors. On 9th September 1991 at a meeting of the Victorian branch committee of management, Keith Wise resigned as branch secretary and Christopher Keily was appointed to that office by the branch committee of management. It is alleged by the applicant that this appointment created a casual vacancy in the office of additional federal councillor, which had been occupied by Christopher Keily. Counsel for those respondents who appeared questioned whether there was in truth a casual vacancy, in the absence of any specific provision in the rules as to how such a vacancy occurs. For the purposes of this application for interim orders, I am prepared to assume that a casual vacancy occurred. There would be a strong presumption that one person could not hold more than one position on the federal council. See Mellor v. Horn (1988) 25 IR 157, at pp 160-161. In those circumstances, it is likely that the doctrine of incompatible offices would apply when Mr Keily moved from one office entitling him to sit on the federal council to another. That doctrine was applied in Egan v. Maher (No. 2) (1978) 35 FLR 252, Mellor v. Horn at pp 159-161 and Johnson v. Beitseen (Federal Court of Australia, Gray J., 21st March 1989, unreported) at pp 41-44.
The power to fill a casual vacancy is found in rule 34 of the rules of the Union. It is necessary to set out some of the provisions of that rule:
"(1) Where a casual vacancy occurs in the office of -
...additional Federal Councillor (if any) to which the Branch is entitled pursuant to rule 5(b)...
such vacancy may be filled by appointment by the Branch Committee of Management...
(2) The member so appointed shall hold office in accordance with the Rules for so much of the unexpired part of the term of office as does not exceed -
(i) 12 months; or
(ii) three-quarters of the term of the office;
whichever is the greater.
...
(4) In this Rule -
...
`term' in relation to the office means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election to hold the office in accordance with the rules without being re-elected."
The Victorian branch committee of management did not act immediately to fill the casual vacancy created by Mr Keily's accession to the office of branch secretary. It waited until 4th May 1992, on which date it resolved that the applicant "be appointed to fill the casual vacancy on the federal council".
In the meantime, the elections in the Victorian branch which commenced in 1991 had also been delayed by the conduct of inquiries commenced pursuant to Division 5 of Part IX of the Act. On 15th April 1992, in the course of one of those inquiries, Keely J. made an order in the following terms:
"Until further order of the Court persons who as at the date of this Order hold an elected office (including persons who are filling a casual vacancy) specified below in the Transport Workers' Union of Australia shall continue to hold such office."
There were then listed some federal offices and some offices in the Victorian branch, including "federal councillor".
On 7th May 1992, a conversation occurred between Mr Keily and the respondent I. Hodgson, the federal secretary of the Union, concerning the applicant's appointment as federal councillor. Mr Hodgson is alleged to have said that the applicant would not be admitted to the federal council, and that he (Mr Hodgson) had legal advice that the order of Keely J. for the holding over of offices prevented the applicant from being recognised as a federal councillor. The annual meeting of the federal council of the Union is due to commence next Monday, 18th May 1992, in Perth. The Victorian branch has made arrangements to send four federal councillors (including the branch secretary-treasurer). Airfares have been paid and accommodation has been booked.
On 12th May, Mr Keily received correspondence from Mr Hodgson, including a copy of a letter of advice dated 6th May 1992 from a firm of solicitors, advising that a person appointed subsequent to 15th April to fill a casual vacancy in the office of federal councillor would not fall within the order of 15th April and that the appointment decision would be null and void after 20th April 1992.
On 12th May, I granted the applicant a rule to show cause, calling on the respondents to show cause why an order should not be made that they perform and observe the rules of the Union by treating the applicant as validly holding the office of federal councillor of the Victorian branch. Because of the urgency of the matter, the rule to show cause was made returnable this morning, and counsel for the applicant pursued an application for an interim order, pursuant to s.209(4) of the Act.
It appears to be common ground between the parties that the order of Keely J., made on 15th April, was not determinative of the rights of the applicant. In Re Porter; Re Transport Workers' Union of Australia (1989) 34 IR 179, at pp 212-213, I took the view that if the declaration of the results of elections were delayed until after 20th April in the relevant year, the holders of any offices at that date would automatically hold over. An examination of rule 5A(c) and rule 33(q) suggests strongly that this conclusion is appropriate. There is every possibility that the order of Keely J. was made from an abundance of caution, in the exercise of the powers given to a judge conducting an inquiry into an election by s.221(1)(c) of the Act. It is no part of the Court's function in the present proceeding to attempt to construe or enforce the order of Keely J. Whether the applicant is entitled to relief in the present proceeding depends entirely on the construction of the rules.
The crucial question is whether the power given by rule 34 to the branch committee of management to fill a casual vacancy is exercisable after the time when the term of office would ordinarily have come to an end. Put in the way in which counsel for those respondents who appeared put it, the question is whether rule 5A(c) and rule 33(q) extend the term of office, or entitle someone to continue to act. There are powerful arguments on each side. Rule 33(q) uses the words "continue to act". On the other hand, rule 5A(c) adopts the formula "continue as a member of the federal council". If the definition of "term" in rule 34(4) includes the time during which the office might be extended after 20th April in the relevant year by the operation of rule 5A(c) or rule 33(q), it would make the "term" an indeterminate period, and make the calculation of the unexpired part of the term, for the purposes of rule 34(2) impossible. On the other hand, if the conduct of elections were held up because of an inquiry, and an office were to be vacated after the Court had completed the inquiry, but before the result of the election was known, no power would appear to exist to fill the vacancy.
In the circumstances, it seems to me to be unwise that I should attempt to construe the rules today, when argument has been conducted on the basis of urgency. In my view, the matter is one which could easily be decided either way at the trial. This inevitably means that there is a serious question to be tried as to whether the applicant is entitled to relief. The fact is, however, that the proceeding may never come on for trial; the important question is whether the applicant is to be permitted to attend the federal council meeting next week. Even if the validity of what occurs at that federal council is in dispute, and the outcome of the dispute depends upon the applicant's presence or absence, it is more likely that that dispute would be resolved in another proceeding. It seems to me that I ought not to order that the applicant be permitted to attend the meeting just on the basis of a serious question to be tried and a slight balance of convenience in the applicant's favour. It must be remembered that the power given to the court by s.209(4) of the Act is a power to grant "such interim orders as it considers appropriate", not a power to grant interlocutory injunctions. The tests considered appropriate in some cases for the grant of an interlocutory injunction are not necessarily appropriate in a case such as the present, especially where what is sought on an urgent basis in effect amounts to final relief. I am of the view that the applicant does not have an overwhelmingly strong case as to the validity of his appointment on 4th May 1992 as an additional federal councillor.
It remains to be seen whether the balance of convenience is so overwhelmingly in the applicant's favour that I should nevertheless order that he be entitled to attend the federal council meeting. Counsel for those respondents who appeared suggested that the matter could be resolved simply by the applicant requesting Keely J. to vary his order of 15th April, so that it related expressly to the applicant, and that those respondents would not take objection if an application for such variation were made. There are practical difficulties involved in such a course. The parties to the present proceeding are not the only parties to the election inquiry in which the order of 15th April was made. Keely J. is at present sitting in Adelaide, hearing a matter of some complexity which, I understand, will proceed next Monday and throughout next week at least. I do not feel disposed to adjourn this proceeding on the footing that the parties should attempt to interrupt his Honour's commitment, for the purpose of seeking a variation of an order which, notwithstanding lack of objection, it is by no means certain that his Honour would be disposed to grant.
The balance of convenience issue really boils down to attempting to predict what might occur at the federal council meeting. By virtue of rule 48(1)(d) of the Union's rules, it appears that the votes to which those representing the Victorian branch will be entitled (which number depends upon the number of members in the branch) will be allocated equally among those who are present representing the branch. The voting power of the Victorian branch will not be reduced by the absence of the applicant. Counsel for the applicant drew attention to the possibility that the division of votes among the federal councillors from the Victorian branch may not result in those votes being exercised in the same way on every issue. There is the possibility that the applicant's presence or absence would have some effect on the outcome of motions considered by the federal council. If the vote is sufficiently close, the validity of what is done by the federal council could be challenged by any member in another proceeding under s.209 of the Act, and the issue of the validity of the applicant's appointment as a federal councillor could be determined in that proceeding. It is doubtful that s.255, under which acts done by collective bodies of organisations are validated, would have any effect in the present case, since it validates acts in spite of any invalidity that may later be discovered in the election or appointment of persons purporting to act as the collective body.
The other crucial function which the federal council will perform is that of electing from amongst its members persons to hold the office of federal president, federal vice president and federal trustee, who are elected annually. Again, the votes which the applicant might exercise if he were present, or which might be exercised by someone else if he were absent, might be crucial in the results of those elections. The elections are to be conducted by secret ballot, pursuant to rule 23II(f), so that it will be more difficult to determine what effect the exercise by the applicant of votes would have had. This is a matter, however, which might equally have effect whether or not the applicant is present. If necessary, the validity of the results of any election may have to be determined in an inquiry pursuant to Division 5 of Part IX of the Act. In his affidavit, the applicant points out his right to stand for any of the offices for which elections are to be conducted. It may be that, if he is to be absent from the federal council meeting, he will be unable to be nominated for those positions. As a consequence, it is probable that the Court would hold that no irregularity had occurred. Compare Re Federated Liquor and Allied Industries Employees Union of Australia (Tasmanian Branch); ex parte Huxtable (1979) 40 FLR 418. The applicant has not indicated in his affidavit any intention to stand for any of the offices concerned. Had he done so, his case on the balance of convenience would have been a great deal stronger.
In consequence of this attempt to foretell what might occur at the federal council meeting, I am not satisfied that there is an overwhelming balance of convenience in favour of allowing the applicant to attend that meeting. Indeed, the balance seems to be quite even, perhaps slightly tilted in the applicant's favour. In my view, that is an insufficient foundation for the grant of interim orders when the result would effectively be to determine the applicant's right to be present at the meeting. I therefore propose to dismiss the application for interim orders. It occurs to me that it might be useful in future proceedings if I were to order the respondents to ensure that an accurate record is kept of the votes cast on each question decided by the federal council, including the numbers of votes exercised by each of its members. I shall hear counsel on the question whether I should make such an order.
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