Prichard, Michael Anthony v Krantz, Harry David

IN THE FEDERAL COURT OF AUSTRALIA

) )

SOUTH AUSTRALIA DISTRICT REGISTKY

)

S.A. No.

6 of 1983

)

DIVISION	INDUSTRIAL	1
BETWEEN:

MICHAEL ANTHONY PRICHARD

Applicant

and

CORAM:	Northrop J. I
DATE :
-	29 November 1983
WHERE MADE:	Melbourne

ORDER

THE COURT ORDERS THAT

the

rule

show cause insofar

paragraphs (b) and (c) thereof are concerned, be discharged.

IN THE FEDERAL COURT OF AUSTRALIA

)

SOUTH AUSTRALIA DISTRICT REGISTRY )

S.A. No. 6 of 1983

DIVISION	INDUSTRIAL	)
BETWEEN:

MICHAEL ANTHONY PRICHARD

Applicant

and

HARRY DAVID KRANTZ, LESLIE RICHARD

HASELDINE. ALBERT FELLOWCS, PETER

DAVID SUMMERTON, FREDERICK EDWARD

PRIEST. H.J. DARKOCH, N. NELSON.

M.J. O'SULLIVAN, JOAN RIORDLV.

B. ASHE, K . GLOVER, MICHAEL BOURKE,

F.J. FINLAY, J.F. HARDING,

M. STRANGEWARD. B. SPEARS, D. FRY,

D. EDGE, A.M. LAWLESS, VINCE HIGGINS

L.T. HAUFFE, F.J. ABEL, R.J. WASSON,

TERRY SULLIVAN, JOHN PETER MAYNES,

J .D.

CAMERON

Respondents

NORTHROP 3.

REASONS

FOR

JUDGMENT

29 NOVEMBER 1983

On 1 August 1983, the Branch Executive

of the

Federated Clerks' Union

Australia, South Australian

Branch, "the S.A.

Branch", adopted the following resolution:

"In accordance with Rule ll(a) the Branch

Executive

directs

the

removal

from

the

who

appears to be no longer covered

by the

Constltution and who was notified in writing

in accordance with sub clause (d)

of the said

rule and the said perlod provided, by sub	i
clause (e) of the sald rule having expired and	!

no such reply seeking

show cause why his

- 2 -

name should not be removed from the register

having been received, the Executive acts

without further inquiry."

That resolution was acted upon. Thereupon, if the resolution

was valid, Michael Anthony Prichard, the applicant, ceased to

be a member of the S.A.

Branch and ceased to have any rights

or privileges of membership of the

S.A.

Branch. At the same

time he ceased to be a member of the Federated Clerks' Union

of Australla, "the Clerks' Union",

an organization of

employees under	the Conciliation and Arbitration Act 1904,
"the Act".

The applicant challenges the

validity of that

resolution. On

19 October 1983 he obtained a rule calling

upon the respondents to show cause why orders should not be

made pursuant to s.141 of the Act.

Two of the orders sought

by the applicant raise the question of the validity

of the

resolution

adopted

the

Branch

Executive.

The

Court

directed that the part

of the rule

to show cause which raised

that question should be heard and determined separately from

and prior to	the other orders sought	in the rule	to show
cause.

The applicant claims to be a member

of the Clerks'

Union and since the issue

of whether he is a member is raised

by this application,

he has sufficient standing to bring this

application under sub-sec.

141( 1) of the Act. Each

Of the

- 3 -

respondents is a member

of the Clerks' Union

and thus each is

under an obligation to perform or observe the rules

of the

Clerks' Union; see sub-sec.

141(1G).

For the purposes

s.141 of the Act, the

S.A.

Branch Rules are treated as rules

of the Clerks

' Union.

The respondents, Krantz, Haseldine, Fellowes and

Summerton are the Secretary, the Assistant Secretary, the

Deputy President and the Vice President respectively of the

S.A. Branch. They, together with the President of the S.A.

Branch, Michael James Knight,

constitute

the

Branch

Executive. The respondent, Priest,

is a member of the S . A .

Branch. The other respondents constltute some of the members

of	the Federal Council of the Clerks' Union. They were

represented at the hearing of this part of the application

but took no active part in the conduct

of the hearing.

At the hearing, the applicant appeared in person. Evidence was given by the applicant, Knight, and the

respondent, Krantz. There is

real dispute as to the

facts, but what is

in issue is the inference

to be drawn from

some of those facts.

In August 1978, the

S . A .

Branch engaged the

applicant as an employee to perform the duties of a Branch Organizer. Thereupon, the applicant applied for and was

granted membership

of the Clerks' Union being attached

to the

- 4 -

S.A.

Branch. In September 1980, the

S.A.

Branch dismissed

the applicant from his position as a Branch Organizer. While

a member

the

Clerks'

Union,

the

applicant

stood

unsuccessfully as a candldate for election to office in the

S.A. Branch. Commencing in the

year 1981, the applicant,

either on

his

own

in conjunction with other members,

commenced the first

of a number of proceedings in the Federal

Coult seeking orders under sections 140 and 141 of the Act. One of those proceedings is identified as matter S.A. No. 9

of	1982. In addition, the applicant, in conjunction with

other members of the Clerks' Union, made application under

Part

of the Act seeking an inquiry into alleged

irregularities occurring in connection with an election for

offices within the

S.A.

Branch.

The

election

inquiry

proceedings are identified as matter

S.A. No. 15 of 1981. In

each of matters S.A. No. 9 of 1982 and No. 15 of 1981

questions arose as to whether the applicant was eligible to

be a member of the Clerks' Union.

Late in the afternoon of Friday, 29 July 1983, the

hearing of matter	No.	9 of 1982 concluded, whereupon the
trial Judge said:

"In matter number 9 of 1982, the court is of the view that the order nisi herein should be

discharged.

So that that is understood, I am

of	the view that on the evidence in the

matter, the applicant Michael Anthony Prichard

is not eligible

member of the

Federated

Clerks Union

of Australia. I will

publlsh my reasons at a

later date."

- 5 -

Later on the same afternoon, the trial Judge made orders in matter No. 15 of 1981. Among the offices the subject of that inquiry were the offices of President, Deputy President and

Vice President

of the S.A. Branch.

At the election Gecrt

Louis Viergever had been declared elected as President. the

respondent Summerton had been declared

elected as Vice

President, and the respondent Fellowes had been declared

elected

Deputy

President.

After

the

election

inquiry

commenced, the Court, on

18 September 1981, had made interim

orders in substance permitting each of those persons

perform

the

duties

the

holders

those

offices

respectively pending the determination of the inquiry. Mr.

Viergever had died pending the hearing and determination	of
the election inqulry, but the casual vacancy occurring

thereby had not been filled,

the

respondent Fellowes

performing the duties

of President in an acting capacity. On

29 July 1983 the Court ordered that each of those three

persons had not been elected as President, Vice President and

Deputy President respectively, that

Mr. Knight

had been

elected President, that fresh elections be conducted for each

of those positions and that- pending the results

of the new

election the respondents Summerton and Fellowes respectively

perform the duties	of	Vlce President and Deputy President
respectively.

- 6 -

At this stage it

reference to the rules of the Clerks' Union and of the S.A.

Branch. The eligibility rule in each case provides:

is necessary to make brief

"2. CONSTITUTION

The Union shall consist of all persons engaged

in any clerical capacity, and/or engaged in

the occupation of shorthand writers

and

typists

and/or on calculating,

billing,

other

machines

designed

perform

assist

in performing any clerical work whatsoever."

Rule 2 must be read down and of necessity must be limited

persons who at the time

of maklng application for membership

are engaged or are normally engaged as employees

and

who

carry on or normally carry on any of the pursuits specifled relevant, every member is attached to the Branch of the

in that rule. Application for membership is made to a branch

of the Clerks' Union in the manner prescribed by the Branch

Clerks' Union covering the locality in which

he resides or,

in the case of persons employed in the Commonwealth Taxation

Office,

the

Taxation

Officers'

Branch;

generally

see

Election Inquiry: Federated Clerks' Union of Australia;

p a r t e , Federal Court of Australia, Northrop

J., 4 March

1982, unreported. Neither the rules of the Clerks' Union nor the rules of the S.A. Branch contain rules to the effect that

a.	member who ceases to be an employee or who ceases to be

engaged in any OF the pursuits specified in the eligibility

rule,

necesslty, ceases to be a member of the Clerks'

- 7 -

Union. Accordingly, once a person has become a member

of the

Clerrs' Union,

he remains a member until

he dies or until

his

membership is terminated either by himself or by the Clerks'

Union.

S.A. Branch

Rule 17 constitutes

the

Branch

Executive. The rule is set out in full:

17. BRANCH EXECUTIVE

The

Branch

Executive

shall

consist

of the

Presldent, Deputy President, Vice-President,

Secretary and Assistant Secretary.

It shall meet monthly on the second Tuesday in

each month or at such other time

it may

decide.

Three members shall form a quorum."

The general powers and duties

of the Branch Executive are

contained in

S.A.

Branch Rule

18.

It is not necessary to

refer to those powers and duties, but it is noted that they

are made subject to the direction and control of the Branch

Council. Under S.A. Branch Rule

14, the officers of the S.A.

Branch are the President, Deputy President, Vice President, Secretary and Assistant Secretary. The Branch Council is the

committee Of management of

the S.A.

Branch and the Branch

Executive is the Executive Committee of the Branch Council. Under S.A. Branch Rule 15, the Branch Councll consists of the officers, together with councillors elected by the members

within sections of the S.A. Branch. The powers and duties

- 8 -

the Branch Councll are contained in

S.A.

Branch Rule 16.

They need not be referred

to in detail.

It is requlred to

meet monthly

on the 4th Tuesday

in each month "or at such

other time" as the majority

of members may decide or when

summoned by the Executive. In

addition, the

S.A.

Branch

Rules contain provisions relating to a conference

of the S.A.

Branch and to the powers

of that conference,

S.A. Branch Rule

16A. while special meetings

of members have power to exercise

control over the Branch Council; see

S.A.

Branch Rule

19.

In addition, a ballot of members of the Branch may be held

under S.A. Branch Rule 35 or under the Clerks' Union Rule In each case, the result of the ballot is binding on the S.A.

32.

Branch. S.A. Branch Rule	22	relates to the President. He
presides at all meetings	of	the Branch, but except in the

case of elections, he possesses a casting vote only. He

to be consulted in

all matters of urgency and shall give

directions on all such matters. Under

S.A. Branch Rule 24,

the Secretary is responsible for the proper carrying on of the Branch and acts as general supervisor for and on behalf

of the Branch. Under

S.A.

Branch Rule 8, a member may resign

his membership of the Clerks' Union

in the manner therein

prescribed.

S.A. Branch Rule 10 contains provisions relating

to a register of members.

S.A.

Branch

Rule

11 is of

importance and is set out in full:

- 9 -

11. PURGING THE REGISTER

The Branch Executive may

direct the

removal from the resister of the name of

member

who :

owe

S more

than one year

contribution.

has failed for the space of one year

or more to pay any levy or fine or

who appears to be no longer covered

by the Constitution.

Whose present address or place of employment cannot be ascertained by the secretary by reasonable enquiry.

Who, although employed in

a clerical

capacity,

the opinion of

the Branch Executive,

particularly provided for by some other Industrial Union which is prepared to accept him as a member.

Any person whose name

has been so removed

from the register shall thereupon cease

to be a member or to have any rights or

privileges of membership.

Any person shall be liable to pay all contributions, fines, levies and other moneys due to the Union up to the date of

removal of his name from the register.

Before removing the name of any member

from the register in accordance with this

rule the member shall (except in the case

of removals pursuant to sub-clause ( 4 ) of

paragraph (a) hereof) be notified of the Executive's intention to remove his name. Such notification shall specify the

ground or grounds upon which action is to

be taken and shall

be sent by post to

the

member concerned to hls last known address as shown on the register of the Union.

If such member fails within

14 days to

show cause why

his

name should not be

removed from the register the Executive

may direct that his name	be removed
without further enquiry.

- 10 -

(f) Any member whose name

has been removed

from the register under the provisions

this Rule

may appeal to

the Branch

Council.

Doubts having arisen as

to whether the applicant

was eligible to be a member

the Clerks' UnIon, the

Secretary notified employees

of the S . A . Branch not to accept

payment of Union dues from the applicant. The Secretary, in

giving those Instructions, had misunderstood the effect of

the S . A .

Branch Rules and was in error. On

26 October 1982,

the applicant obtained a rule in matter No. 9 of 1982 calling on the Secretary and the Assistant Secretary to show cause why orders should not be made directing that they recognize

the applicant as a member of the Clerks' Union. That matter

came on for hearing on

6 and 7 July 1983 and was adjourned to

29 July 1983. Unfortunately, on each of those three days the parties to the hearing of that rule to show cause proceeded

on the erroneous assumption that

relevant issue was

whether, having regard to the nature

of the applicant's then

employment, he came within the conditions of eligibility of membership of the Clerks' Union. The true issue, as appears from the reasons for ~udgment of the Full Court of the

Federal Court

of Australia given on

21 October 1983 was

whether the applicant was in fact and in law a member of the

Clerks' Union. As a result

of the erroneous assumption, much

evidence, including an inspection

the applicant's then

place of work, was given to the Court

on each of those three

- 11 -

days. On the basis of that evidence, the trial

Judge

made

the announcement on 29 July 1983 which announcement has been

set out in full earlier

in these reasons.

The Branch Executive met on Wednesday,

July

1983.

The then four officers

of the S . A . Branch attended.

At that time

Mr.

Knight

did

not occupy the office

President. The purpose of the meeting was to consider the

question of commencing proceedings under

S . A .

Branch Rule 11

to have the applicant's name removed from the register

members.

draft letter to the applicant had been prepared

by	the Secretary. The meeting considered extracts from the

reasons for judgment of the trial Judge in matter

S . A . No. 15

of 1981 and extracts of the transcript of evidence given in

matter S . A . No. 9 of 1982 relating to the nature of the then

employment of the applicant. The

meeting

resolved

unanimously, in accordance with

S . A .

Branch sub-rule ll(d),

to advise the applicant of its intention to remove his name from the register of members on the ground "that he appears to be no longer covered by the Constitution as provided by

Rule ll(a)(3)", to adopt the letter prepared by the Secretary and to authorize lt to be sent to the applicant. The letter was dated 13 July 1983 and was received by the applicant on

14 July 1983. The letter enclosed a copy

of the whole of

S . A .

Branch Rule

11.

The letter made reference to sub-rule

ll(d) and notified the applicant that the Executive intended to remove his name from the register of members pursuant to

- 12 -

sub-rule ll(aI(3) which was set out. The letter referred to the decision of the trial Judge in matter No. 15 of 1981 and

to evidence given on oath by the applicant	on 7 July 1983 in
matter No. 9 of 1982. The last paragraph	of the letter was
as follows:

"Any reply 'within

14 days' should be received

by me by 5.00 p.m. on Wednesday, 27th July

1983 at the above address."

By letter dated

16 July 1983, the then solicitors

for the applicant wrote to the solicitors for the respondents

Krantz and Haseldine, the respondents

in matter

No.

9 of

1982. The letter referred to the correspondence comprising

two

letters relating to the removal

the name

the

applicant from the register of members. The other letter	of
13 July 1983 need not be referred to in detail. The letter

from the then solicitors

for the applicant suggested that the

action by the Branch Executlve "could well constltute

Contempt of Court'' and in any event was

vexatious and

precipitate action". It referred to matter

No. 9 of 1982 and

sought an undertaking that

no action be taken by the Branch

Executive "before the adjourned date" being 29 July

1983.

The letter contained a notice that applications might be made seeking interlocutory orders. On 18 July 1983 oral undertakings were qiven on behalf of the respondents Krantz

and Haseldine. It

not necessary to refer to motions

seeking interlocutory orders. On 21 July 1983 the solicitors

- 13 -

for the respondents Krantz and Haseldine wrote

to the then

solicitors for the applicant. The last two paragraphs	of
that letter were as follows:

"We confirm the undertaking given to you by

telephone on 18th July that no action would be

taken by the Executive in respect

this

matter before 29th July. We trust that this

is all that you require at this stage.

(Please note that the above undertaking is not

intended to relieve Mr Prichard

the

obligation of responding within fourteen (14)

days as indicated

the letter of the

Executive to him).

On 29 July 1983, the trial Judge

in matter No. 9 of

1982 announced that on the evidence

he was of the view that

the applicant was not eligible to

be a member of the Clerks'

Union. The transcript

that announcement did not become

available to the parties until some fourteen days later.

29 July 1983 the trial Judge

in matter

No.

15 of

1981

declared by order that Mr. Knight had been duly elected

President of the S . A .

Branch.

As a result of these orders, the respondent Krantz considered it necessary that the Branch Executive meet as

Soon

possible.

The signature of the

President

was

required for a number of purposes including banking and entry

certificates. It was reasonable that a meeting of the Branch

Executive, as the Executive Committee

of the Branch Council,

be held as soon as possible. The Secretary did not

know the

- 14 -

ddress or telephone number of

Mr. Knight.

On Fris

day, 29

July 1983 he discussed the matter with the other officers

the

S.A.

Branch and arranged for a meeting of the Branch

Executive to be held at 9 a.m.

on Monday, 1 August 1983. On

the morning of Saturday, 30	July 1983, the respondent
attended at the office of the	S.A. Branch. He ascertained

the address of

Mr. Knight. He could find no record

telfphone number in the name of Mr. Knight. He enquired	of
Telecom directory assistance but could find no record of a

telephone number in the name of Knight. In fact, there

1s a

telephone in the home of Mr. Knight but It is not listed 111 his name, nor in the name "Knight". The respondent arranges for a telegram to be sent to Mr. Knight. The telegram was

delivered by taxi and was delivered to Mr. Knight before

noon on Saturday, 30 July.

The telegram was addressed to

Mr.

Knight and was as follows:

"Meeting of Branch Executive called

9 a.m.

Monday 1st August 1983 at Union office stop

Endeavoured to

and

unable contact you by

telephone stop Ali other members

Branch

Executive desire

and agree to calling

o€

meeting stop If you desire to phone my home

number is 31 6539.

KRANTZ

Mr.

Knight rang the respondent Krantz at about

p.m. on Sunday, 31 July 1983. It is not necessary to set out

the content of that conversation in detail.

,NO mention was

made of the removal of the name

of the applicant from the

- 1 5 -

make arrangements concerning important matters arising from

the fact that Mr. Knight was now the President of the

S . A .

Branch. Mr. Knight said that he could not attend and that

objected to the meeting being held at that time. The Court

is	not satisified that there was any valid reason why Mr.

Knight could not attend that meeting. Later

the Sunday

evening Mr. Knight rang the respondent Fellowes and had	a
long discussion relating to the removal of the applicant's

name from the register

of members.

The Branch Executive met at

9 a.m. on Monday,

August

1983.

The minutes

of that meeting contain a full

record of what

occurred.

All

the

officers

the

S . A .

Branch,

except Mr. Knight,

attended

the

meeting.

They

conflrmed and ratifled the calling of the meeting. A report of the orders of the Court made on 29 July 1983 was given,

but in the report the reference to the announcement in matter

No. 9 of 1982 was that the Court said "that Prichard was not

a member of the" Clerks' Unlon.

A report was given of the

objection taken by Mr. Knight to the calling of the meeting.

Under the heading "Purglng the Register

- Mr. M. A. Prichard"

relevant correspondence was referred to

and particular

reference was made to the fact that no reply had been made by

the applicant to the letter

July

1983,

except the

correspondence from his then solicitors which stated that the

applicant

"would

not

3e replying

personally

the

- 16 -

correspondence ... with

.in the period of fourteen days or

within any other period"

The meetlng unanimously passed the

resolution set out at the beginning of these reasons.

A letter dated 1 August 1983 from the S.A. Branch

to the applicant set out that resolution and stated that the

Secretary had acted upon the resolution. It is noted that

the letter

dated 1 August 1983 is

Exhibit J in

these

proceedings and is identifled as that letter "with annexure".

Stapled to the letter is

an extract of part of the transcrlpt

in matter No. 9 of 1983 settlng out the announcement made by

the trial Judge on

29 July 1983.

That part of the transcript

did not become available to the parties untll well after

August 1983 and so the extract could not have been annexed to

the letter. Further, the letter makes no reference to any

annexure. The letter is the original letter received by

the

applicant shortly after 1 August 1983 and the annexure mist

have been stapled to that letter after it had been received

by the applicant.

The applicant has not exercised the right conierred

S . A .

Branch Rule

ll(f) to appeal to the Branch Council.

Pursuant to Federal Rule

27(9) of the Clerks'. Union the

applicant has lodged an appeal to the Federal Executive

the Clerks' Union against the decision

of the S.A.

Branch

Executive that his name

removed

from

the reglster

members.

Wednesday,

10 August 1983 the

S.A.

Branch

- 17 -

Council "confirmed the action of the Branch Executive in

purging Mr. Michael Anthony Prichard from membership	of the
Union".

In addition to the matters already mentioned, the

applicant relies upon a copy

"The Clerk" a newsletter

published by the

S . A .

Branch. The respondent Krantz is the

editor of that newsletter. The issue

No.

1983, May,

consains a summary of the legal proceedings commenced by the

applicant either

his own or in conjunction with others

involving

the S.A. Branch

and a

State

registered

union

corresponding to the

S.A. Branch.

Before

considering

the

matters

ralsed

submissions, the Court should note that it

flnds

the

respondent Krantz is a witness

truth and accepts his

evidence. There is very little' conflict between his evidence	I
I
and the evidence given by the applicant and Mr. Knight, but	l

where there is conflict the Court prefers the evidence	of the	i
I

respondent

Krantz.

In partlcular, the Court accepts

his

evidence relating to the consideration of the matters relating to the removal of the	absence of bad faith in	his	i
!
::

applicant's name from the register

of members and the

inclusion of the summary of legal proceedings in "The Clerk".	;
;;

In support	of	his claims, the applicant relied on a	1
8

number of contentions.	He	contended	that	the	S . A .	Branch	$
4
k

Rules contravene sub-section 140(1) of the Act in that they	+;
F
g
1;

- 18 -

failed

make provisions required by the Act and the

regulations. Even if that was

so,

rule upon whlch the

respondents

relied

would

thereby

become

invalid.

Accordingly, no further reference is made to this contention.

He contended further that the election

the respondents

Krantz and Assistant Secretary respectively

Haseldine to the offices

Secretary

and

the

S.A.

Aranch was

inlfalid

and

therefore the action taken by the Branch

Executive

which

they

partlcipated

was

invalid.

That

election was conducted as an officially conducted ballot,

sub-section

141(9) of the Act, and thus, under sub-section

141 ( 5 ) an order cannot be made that would have the effect treating that electlon as invalid. Accordingly,

no further

reference is made

to this contention.

The applicant contended that

S . A .

Branch Rule

11,

as well as S.A. Branch Rules

17, 18 and 19 each contravened

sub-section 140

(1) of the Act and thus could not be relied

upon by the respondents to support the action taken by the Branch Executive in removing his name from the register of members. He contended that each of those rules imposed upon

members of the

S.A.

Branch conditions, obligations or

restrictions which, having regard to the objects of the Act

and in particular the

ob~ect

contained in paragraph 2(f), and

the purposes of the registration of organizations under the Act, were offensive, unreasonable or un~ust; see paragraph

140(l)(c) of' the Act.

He made

a number of detailed

- 19 -

submissions in support of that contention. The Court

has

considered each of those submissions

but does not

find it

necessary to repeat them in these reasons for judgment.

The methods adopted to determine issues

of the kind

raised by this contention are discussed in a number

of recent

cases in the Federal Court

Australia, but

for present

purposes reference is made to Wright

v. McLeod, Federal Court

of Australia,

28 November

1983,

unreported, per Evatt and

Northrop JJ.	The principles of law to be applied need not be
repeated.

The S . A . Branch Rules 8 and 11 are designed to give

effect to the requirements

of S. 144 of the Act and Reg.

115(l)(d)(viii).

S.A.

Branch

Rule

11 confers

administrative power on the Branch Executive. It prescribes

a detailed procedure to be followed before the name of a

_ _

member can be removed from the register

members.

InitiatlVe may come from the Branch Secretary pursuant	to his
duty to be responsible for the proper carrying on	of the

Branch and

as general supervisor for and on behalf

of the

Branch. When a matter relating to the purging of the register of members is first brought before the Branch

Executive, the Executive is required

consider whether

there is material

to suggest that one or more

of the grounds

set out in sub-rule ll(a) may be satisfied. There is no need

for notice

of this first step

to be given

to the member

- 20 -

concerned. This step is admlnistrative in character and this

is the power which the Executive must exercise to set in

motion the subsequent procedures prescribed by Rule

11.

Those procedures bear many similarities to the procedures

under the Act whereby a member of an organization is able to

obtain a rule to show cause under

S . 140 or 141 of the Act.

Some of the grounds specified

in sub-rule ll(a) may give rise

difficult

questions.

The

applicant

argued

that

tha

fourteen-day notice requlrement was too restricted

and

illustrated this by reference to a case where a member might

be on leave and might not be able to show cause wlthin the

fourteen days. This argument is rejected. Some time limit

must be imposed and it cannot be said that

a fourteen-day

period

is oppressive, unreasonable or

un~ust.

For present

purposes the relevant ground is that set out in paragraph

(3). The Court is satisfied that there was material before the Branch Executlve at its meeting on 13 July 1983 which

justified it

commencing procedures based upon that

paragraph. It is important to note that those procedures are

not in the nature of charges for misconduct where procedures

to be followed in quasl-criminal matters are to be applied;

see for example the provisions of S.A.

Branch Rule 38 which

empower the Branch Council to impose a fine and/or suspend or

expel any member

the Branch on the grounds speclfled in

that rule. In the present case, there is no prosecutor

laying a charge and the matters discussed in cases such as

Cains v. Jenklns (1979)

46 F.L.R.

278 and on appeal (1979)

- 21 -

F.L.R. 188 have no application. The Branch Executlve itself calls upon the member concerned to show cause why his name should not be removed from the register. It is not requlred to act in a quasi judicial manner at that stage of the

procedure.

S.A. Branch sub-rules

ll(d) and (e) prescribe

procedures to be followed before action is taken to remove

the name

a member from the register of members. If a

member responds to the notification of intention, the Branch Executive is requlred to consider the matters raised by that

response. At that stage

the proceedings some of the

principles of natural justice may be imported, but

in the

present case

no response was made, the applicant

did not

attempt to show cause and therefore under sub-rule ll(e) the

Branch Executive was not required to make further enquiry.	A
right of appeal is given by sub-rule ll(f).

The Court finds that S.A.

Branch Rule 11 of itself

does not contravene sub-section

140(1) of the Act.

The applicant submitted further that the quorum

three persons at meetings of the S.A. Branch Executive,

S . A .

Branch Rule

17, contravened sub-section 140(1)

of the Act.

He stressed the

fact.

that two persons had power to make

decisions adversely affecting

a member.

Even

if that

submission

was

correct,

does

not

affect

the

present

- 22 -

. application where four members

voted in favour of the

resolution to remove the name

the applicant from the

event, the Branch Executive, as

the Executive Committee of the Branch Council, is subject to

the direction

and control of the Branch Council; see

S . A .

Branch Rule 18.

If necessary, the Court would decide that on

the material before it in these proceedings,

S.A. Branch Rule

17 does not contravene sub-section 140(

1) of the Act.

The

challenge to S.A.

Branch Rules

18 and 19 likewise is

rejected. The challenge to those rules is not relevant to

any issue in this application.

The applicant challenged the validity

the

meetings at which the decisions attacked were made. Under S.A. Branch Rule 17, the Branch Executive meets "on the second Tuesday in each month or at such other time as it may

decide". The relevant meetings were not held on a Tuesday

but were held at a time determined by the Branch Executive but not pre-determined by the Branch Executive. The

applicant referred

the structure

of the rules which

provides for meetings of the Branch Executive on the second Tuesday of each month and for meetings of the Branch Council

on the fourth Tuesday

of each month.

That is so, but the

Executive has power to meet at such time as it may decide and

in this case the Executive approved the meetings. In any

event, the Branch Council has confirmed the action taken by

the Executive.

- 23 -

the facts found, the Court

is satisified that

the meetings of the Branch Executive were called validly

and

in accordance with the

S.A.

Branch Rules. Nothing vitiates

the

resolutions

passed

those

meetings.

None

of the

members of the Branch Executive acted mala fide. There are

no facts proved upon which the principles discussed in Allen

V. ffownsend (1977) 31 F.L.R. 431 per Evatt and Northrop JJ.

at pp.483-89 can be applied in this application. In truth,

there is much

be said for the view that the Branch

Executive would not be

acting in the best interests of the

S.A. Branch if

it believed, on reasonable grounds, that the

applicant, who was causing the

S.A.

Branch to incur large

amounts of money in respect of legal costs, was not covered

by the Constitution of the Clerks' Union and failed to take

action under S.A.

Branch Rule 11 to have his name removed

from the register

members. The fact that the Branch

Executive did

does not support a contention that its

members failed to exercise that power bona fide. Likewise,

there is no basls and no facts proved to justify a finding of

bias against the respondent Krantz

or against any

of the

other respondents, members of the Branch Executive.

In the present case

it must be remembered that the

vital decision was made at the meeting of the Branch

Executive on

13 July

1983. The epplicant, through his then

solicitor, determined not to show cause why

his name should

- 24 -

not be removed from the register

of members. He took

show cause. In fact,

Executive. In those circumstances the Branch Executive was

not required to make further enquiry into the matter before

removing the applicant's name from the register of members.

caused notice

of his

steps

determination not to show cause to be given to the Branch fides of the members of the Branch Executive and the absence

of bias against the applicant

those members, those

findings are not strictly necessary. On the facts

this

case there was no proceedlng at which the question of natural justice being applied in the hearing and determination of a 'show cause' matter came before the Branch Executive. On any

view, in the absence of showing cause, it is difficult to see

how there could be a denial of the requirements of natural

justice. Notice had been given

the applicant. He had

been given an opportunity	to be heard but had not taken that
.-

opportunity. The powers of the Executlve Committee cannot be

thwarted by the absence

of action taken

by the applicant.

It	must be noted also that the Court in these

proceedlngs is not actlng as a court

of appeal to determine

the merits of the decision taken by the Branch

Executive. In

particular, In these proceedlngs, the Court should not

and

does not express any opinion

011 the question of whether the

applicant is "covered by the Constitution" of the Clerks'	I
!'
Union.

- 25 -

fo l lows , t he re fo re , t ha t t he ru l e t o

show

cause,

i n so fa r

a s

(b) and (c ) are

concerned,

should

discharged

and orders made accordingly.

[1983] FCA 352

29 Nov 1983