Rennie, Gordon Andrew v Curley, Sean
[1997] FCA 765
•12 August 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - registered organisations - rules - construction of - whether rules of CPSU/SPSF Queensland branch allowed appointment of proxies to meetings of branch council - whether relevant rule evinced an intention regarding use of proxies at meetings of branch council - whether absence of machinery provisions dealing with proxies fatal to construction contended for - effect of failure to recognise proxy on subsequent business conducted at branch council meeting
Workplace Relations Act 1996 ss 3(g), 209
Harben v Phillips (1883) 23 Ch D 14
McLeish v Kane (1978) 36 FLR 80
Campbell v The Australian Mutual Provident Society (1906) 7 SR (NSW) 99
Egan v Maher (1978) 20 ALR 421
Darroch v Tanner (1987) 16 FCR 368
GORDON ANDREW RENNIE, JOHN AXAM, PETER McKAY, CLIFTON MILES, ALAN SNOW, IAN HOLMES, DAVID BRENNAN, BRENDAN MOFFAT, DENNIS BAILEY -v- SEAN CURLEY, JOHN ANDERSON, MICHAEL CONWAY, HELEN BORRADALE, BOB ELLIS, GARY ABLETT, JULIE DAVIES, GREG SINGH, TERRY CRIMSTON and SUE CARLOS, ATHOL CAIRN KELVIN GOODALL, K. BATT, YOLANDA FILLIP, JIM WALTON, PETER KEOGH, R. TEYMANT, D. ROBINSON, B. ELLIS, D. ROBERTSON, G. KELLY, LEIGH DELANEY, G. VINES, KAREN GREEN, NEIL BAKER, J. McMAHON, J. HADAWAY, MARGARET WARNER, KAY ANASTASSIADIS, STEPHEN PINCHES, ERYL BRADY, JOHN DOYLE, I. JORDAN, FRANCIS VAN DATEL, BRIAN WEBB, R. DAVIS, BILL BRENNAN, JANET GOOD, FRANK NIMMELL, SUZANNE WALSH, CHRIS WENKE and CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
QG 65 of 1997
MARSHALL J
MELBOURNE (HEARD IN BRISBANE)
12 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QG 65 of 1997 ) GENERAL DIVISION )
BETWEEN: Gordon Andrew Rennie, John Axam, Peter McKay, Clifton Miles, Alan Snow, Ian Holmes, David Brennan, Brendan Moffat and Dennis Bailey
ApplicantsAND: Sean Curley, John Anderson, Michael Conway, Helen Borradale, Bob Ellis, Gary Ablett, Julie Davies, Greg Singh and Terry Crimston
First RespondentsSue Carlos, Athol Cairn Kelvin Goodall, K. Batt, Yolanda Fillip, Jim Walton, Peter Keogh, R. Teymant, D. Robinson, B. Ellis, D. Robertson, G. Kelly, Leigh Delaney, G. Vines, Karen Green, Neil Baker, J. McMahon, J. Hadaway, Margaret Warner, Kay Anastassiadis, Stephen Pinches, Eryl Brady, John Doyle, I. Jordan, Francis Van Datel, Brian Webb, R. Davis, Bill Brennan, Janet Good, Frank Nimmell, Suzanne Walsh, Chris Wenke
Second RespondentsCPSU, The Community and Public Sector Union
Third Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN BRISBANE) DATED: 12 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The first respondents are directed to perform and observe the rules of the third respondent by treating the purported appointment of Gary Ablett to the office of Branch Councillor on 20 May 1997 as null and void.
2.The first respondents are directed to perform and observe the rules of the third respondent by treating the purported appointment of Bob Ellis to the office of delegate to Federal Council on 20 May 1997 as null and void.
3.The first respondents are directed to perform and observe the rules of the third respondent by treating as resolutions of the Branch Council the following resolutions:
(a)That the Queensland Branch Council bind the Queensland delegates to the Federal Council of the State Public Services Federation Group of the Community and Public Sector Union to oppose any motions which have the effect of introducing a national subscription rate or national membership fee prior to 1 July 1998.
(b)That the Queensland Branch Council bind the Queensland Branch delegates to the Federal Council of the State Public Services Federation Group of the Community and Public Sector Union to oppose any moves to increase the capitation dues by more than 10% prior to 1 July 1998.
4.Gregory Vines, one of the second respondents, is directed to perform and observe the rules of the third respondent by not declaring the vote on the following motion carried by Federal Council on 3 July 1997:
“That commencing from 1 July 1997, the annual subscription for membership of the Union which shall be payable by SPSF Group members shall be $185.04 per member, payable in monthly instalments of $15.42 per member PROVIDED THAT if a member is liable to pay subscription or membership fees of less than $185.04 per annum for membership to an Associated Body, then the annual subscription which shall be payable by each such member for membership of the Union shall be $90.70 payable in monthly instalments in the sum of $7.50 PROVIDED FURTHER THAT the preceding proviso shall not operate if the Associated Body has reduced the relevant subscriptions to less than $185.04 on or since 1 July 1995.
That the annual subscriptions fixed pursuant to paragraph 1 shall continue to apply until a new rate is fixed pursuant to the Rules.
That the annual subscriptions fixed pursuant to paragraph 1 shall be dealt with as follows.
(a)out of subscriptions paid by any member of any of the Signatory Bodies $5.00 per year will be used to fund the Federal Fund and the remainder shall be dealt in accordance with the Rules and the relevant provisions of the Deed; and
(b)out of subscriptions paid by any other member of the Group $5 will be used to fund the Federal Fund and the remainder of those subscriptions shall be paid to the Branch Fund of that member’s Branch and no part of such subscriptions shall be applied directly or indirectly towards any payment to, for or on behalf of any of the non-Signatory Bodies which has not entered into a legally binding arrangement with the CPSU as to the treatment of members and subscriptions unless such payment is a payment for services provided by that Body to the Union at the Union’s request.
Non-Signatory Bodies means that Associated Bodies which have not executed the Deed with the CPSU which was executed in July 1995. The term includes any legal entity outside the Union which is controlled or partly controlled by any of the non-Signatory Bodies.”
5.The first respondents are directed to perform and observe the rules of the third respondent by voting against any resolution before the Federal Council of the SPSF Group of the third respondent which imposes a national subscription or membership fee prior to 1 July 1998.
6.The first respondents are directed to perform and observe the rules of the third respondent by voting against any resolution before the Federal Council of the SPSF Group of the third respondent which increases capitation dues by more than ten per cent prior to 1 July 1998.
7.The amended rule to show cause is otherwise discharged.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QG 65 of 1997 ) GENERAL DIVISION )
BETWEEN: Gordon Andrew Rennie, John Axam, Peter McKay, Clifton Miles, Alan Snow, Ian Holmes, David Brennan, Brendan Moffat and Dennis Bailey
ApplicantsAND: Sean Curley, John Anderson, Michael Conway, Helen Borradale, Bob Ellis, Gary Ablett, Julie Davies, Greg Singh and Terry Crimston
First RespondentsSue Carlos, Athol Cairn Kelvin Goodall, K. Batt, Yolanda Fillip, Jim Walton, Peter Keogh, R. Teymant, D. Robinson, B. Ellis, D. Robertson, G. Kelly, Leigh Delaney, G. Vines, Karen Green, Neil Baker, J. McMahon, J. Hadaway, Margaret Warner, Kay Anastassiadis, Stephen Pinches, Eryl Brady, John Doyle, I. Jordan, Francis Van Datel, Brian Webb, R. Davis, Bill Brennan, Janet Good, Frank Nimmell, Suzanne Walsh, Chris Wenke
Second RespondentsCPSU, The Community and Public Sector Union
Third Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN BRISBANE) DATED: 12 AUGUST 1997
REASONS FOR JUDGMENT
On 6 June 1997 the Court granted a rule calling upon the respondents to show cause why certain orders should not be made to secure performance and observance of the rules of the third respondent. The order of the Court of 6 June 1997 was amended by consent on 11 June 1997 at the directions hearing. The hearing of the application pursuant to s 209 Workplace Relations Act 1996 (“the Act”) occurred on 8 July 1997. The applicants were represented by Mr Boccabella of counsel. The first respondents were represented by Mr Herbert of counsel. Mr Kenzie QC appeared for those of the second respondents who appeared in the matter. Mr Howells of counsel appeared for the third respondent.
THE PARTIES
The third respondent (“CPSU”) is an organisation of employees registered under the Act. It is divided into two groups, one of which is the “SPSF Group”. The SPSF Group has branches in each State. The applicants and the first respondents are members of CPSU in its SPSF Group who are attached to the Queensland branch (“the branch”). The second respondents are members of the Federal Council of the SPSF group of CPSU.
FACTUAL BACKGROUND
The management and control of the affairs of the branch is vested in the Branch Council. The Branch Council consists of the President, Vice-President, Secretary, Assistant Secretary and Treasurer (“the Branch Executive”) and delegates to Branch Council. The delegates are elected on a proportional basis from three electorates:
“financial members who work in Higher Education”
“financial members who work in Health”
“financial members who work in neither Higher Education or Health”
A meeting of the Branch Council was scheduled to be held at 6 pm on 20 May 1997. On 12 May 1997, prior to the scheduled Branch Council meeting, Mr Bailey, a Branch Council delegate, was admitted to hospital. He was diagnosed as having a heart condition requiring quadruple by-pass surgery. The surgery was arranged for 20 May 1997, the same day as the scheduled Branch Council meeting. Mr Bailey was discharged from hospital on 15 May 1997 and was re-admitted on 19 May 1997. Mr Bailey underwent surgery at 4 pm on 20 May 1997 and remained in intensive care until 4 pm on 22 May 1997.
Prior to his surgery on 17 May 1997, Mr Bailey had prepared and signed a document in the following terms:-
“Secretary
SPSF-CPSU
Dear Mr Curley,
I hereby appoint Brendan Moffat as my proxy to the Branch Council meeting of Tuesday 20 May 1997.
D.J. Bailey”
The proxy document was collected by Mr Probin on 17 May 1997. He was instructed by Mr Bailey to deliver the proxy to Mr Moffat, with copies to be sent to Mr Rennie (the Assistant Secretary) and Mr Curley (the Secretary). Mr Moffat had been contacted on the previous day, 16 May 1997, by Mr Probin who informed him that Mr Bailey was ill. Mr Moffat agreed to exercise Mr Bailey’s proxy after a request for him to do so by Mr Bailey was made via Mr Probin. Mr Moffat received the proxy document at 5.45 pm on 20 May 1997.
Mr Moffat attended the Branch Council meeting on 20 May 1997. At the commencement of the meeting, Mr Rennie informed the President, Mr Bor, that Mr Moffat “held the proxy for Dennis Bailey”. Mr Bor ruled that the proxy could not be exercised.Mr Rennie moved dissent from the ruling of the President. The ruling was upheld. The ruling was at odds with the practice in the previous two years of proxies being accepted at Branch Council.
During the course of the meeting, the Branch Council voted to fill a casual vacancy allegedly arising within its ranks. Mr Ablett was elected to fill the casual vacancy. The vote in favour of his election was eight (8) to seven (7) with one (1) member abstaining. Later in the meeting the Branch Council voted to fill a casual vacancy allegedly arising in an office of branch delegate to Federal Council. Mr Ellis was elected to fill the casual vacancy. The vote in favour of his election was nine (9) to seven (7) with one (1) member abstaining. The meeting went on to deal with other motions which are referred to later in these reasons.
THE PROXY ISSUE
Mr Boccabella and Mr Kenzie submitted that Mr Bor wrongly rejected Mr Bailey’s proxy in favour of Mr Moffat. They submitted that Mr Moffat was entitled to attend the Branch Council meeting and vote on any issue arising at that meeting. Such an entitlement, it was said, arose as a result of rule 13 of the rules of the branch. That rule is headed:
“QUORUM REQUIRED FOR MEETINGS OF BRANCH COUNCIL”
and provides as follows:
“A quorum for meetings of Branch Council shall be a majority of incumbent Branch Council members or their duly appointed proxies, excluding any further proxy held by any person present.”
Mr Boccabella submitted that although rule 13 was inelegantly expressed, it provided a source of power in a Branch Council member to appoint a proxy. He submitted that his construction of rule 13 was more consistent with a pertinent object of the Act than the contrary view. He referred the Court to s 3(g) of the Act which provides in essence that a principal object of the Act is to ensure that organisations are “representative of and accountable to their members, and are able to operate effectively”. It was put, in substance, that a construction of the rule which permitted the use of a proxy furthered the representative nature of the organisation by allowing the interests represented by the person unable to attend the meeting to be represented by a factional ally of her or his choosing.
Mr Boccabella referred to the machinery provisions in Rule 12 governing the use of proxies at Branch Executive meetings. Rule 12 provides that:
“12 - PROXY VOTING ON BRANCH EXECUTIVE
(i)Any member of the Branch Executive, as defined in Rule 6(i) of these Rules, who is unable to be present at the whole or part of a meeting of Branch Executive may appoint another member of Branch Council to act as their proxy. A Branch Executive member appointing a proxy shall notify the Branch Secretary or Branch President in writing of such appointment prior to, or at, that meeting.
(ii)A financial member appointed as a proxy shall have all the powers of the Branch Executive member and in exercising a vote shall act in accordance with any direction of the Branch Executive member by whom they have been appointed proxy.
(iii)A Branch Executive member who is appointed as proxy for another Branch Executive member shall be entitled to exercise any vote or votes exercisable by the member whose proxy they carry, in addition to any vote or votes they are entitled to exercise on their own behalf.
(iv)No person shall act as a proxy for more than one Branch Executive member at any meeting of Branch Executive.”
Mr Boccabella submitted that rule 12 provided a different method of dealing with proxies at Branch Executive meetings to that applying for Branch Council meetings but that the absence of machinery provisions in rule 13 did not detract from it being a source of power for proxies to be appointed. Mr Boccabella also relied upon the “custom and practice” that had been established in the branch over the last two years of accepting proxies at Branch council meetings.
Mr Kenzie submitted that rule 13 was no different from a provision which simply said that “proxies will be permitted” but which did not go on to detail all the procedures and processes which would be necessary to perfect the granting of a proxy. Like Mr Boccabella, Mr Kenzie submitted that the rules should be construed consistently with the objects of the Act. He further submitted that Branch Council was competent to provide for its own procedures regarding the acceptance of proxies in the absence of any detailed procedures in the rules.
Mr Herbert contended that rule 13 did not confer a right on any person to vote by proxy at Branch Council.
Initially, Mr Herbert contended that rule 13 permitted proxies but only for the purpose of making up a quorum. He submitted that the giving to such proxies of a bare right to attend and be counted in a quorum would give some meaning to rule 13 provided that the words “if any” were notionally inserted after the words “or their duly appointed proxies”. Later in his submissions Mr Herbert contended that any proxies would need to be “duly appointed” before being used for the limited purpose of making up a quorum. His entire argument was based, in essence, upon the lack of a machinery provision in the rules which governed the granting of proxies at Branch Council meetings. He said that the Court should not say what “duly appointed” means if the rules are silent on that issue. On his reading of rule 13 the words after the word “members” are “otiose”.
Mr Herbert referred the Court to the historical background behind rule 13. In essence, that background is that a proposed rule 11, which was intended to provide machinery for the appointment of proxies, was not certified by the Industrial Registrar because of a concern in the Industrial Registrar that any proxy so appointed, as proposed rule 11 was drafted, would be entitled to take part in a collegiate election without first facing the electorate.
Mr Howells informed the Court that CPSU’s view was that for persons to be appointed as proxies there would need to be a specific power for such appointments conferred by the rules. He submitted that such power was found in some branch rules and in the rules of the federal SPSF Group of CPSU.
CONCLUSION ON THE PROXY ISSUE
There is no power at common law for a member of a body to appoint a proxy. This position has been widely recognised at least since the judgment of the English Court of Appeal in 1883 in Harben v Phillips (1883) 23 Ch D 14. In Harben at 35-36, Bowen LJ said:
“The first observation which occurs to me is this, that there is no common law right on the part of a member of a corporation to vote by proxy. We know, of course, that in many cases a man may do through another person what he may lawfully do himself. That rule does not carry one very far, because when examined it will be found simply to amount to this, that a man may do for another person all acts such as in their nature can properly be and are intended to be done by a delegate, so that it amounts to very little more than an identical proposition. But when persons agree to act together in the conduct of a business, the way in which that business is to be carried on must depend in each case on the contract, express or implied, which exists between them as to the way of carrying it on. Now, in the first place, at common law a proxy could not be used by a member of a corporation unless there was some specific provision which enabled him to do so. When you come to statutory corporations you must look at the statute itself, and the rules which are created under it, to see whether it is the intention of the statute or the rules that a proxy should be used, and, if so, in what form it should be used.”
The task for the Court, therefore, is to examine the rules of the branch and determine whether it is the intention of those rules, first, that a proxy should be used and if so, second, in what form.
In my opinion, rule 13 of the branch rules evinces an intention in the rules that a proxy may be used at meetings of Branch Council. It is a source of power for the use of a proxy. The contrary view would give no meaning to the following words in rule 13:
“... or their duly appointed proxies, excluding any further proxy held by any person present.”
In McLeish v Kane (1978) 36 FLR 80, 86, a Full Court of this Court said of the rules it was called upon to construe:
“The rules are not easy to interpret and no doubt have grown over the years with changing emphasis on particular provisions. We think, however, that if such an interpretation is fairly open they should be construed to give a rule a meaning rather than holding it meaningless with no effect at all.”
In Cox v Robertson [1980] IASCR 369, 373, Evatt J applied the above passage in McLeish and said that:
“In my view the same reasoning also applies to part of a rule.”
I agree with the view expressed by Evatt J. I see no logical reason why any distinction should be made between striving to give a rule meaning and striving to give part of a rule meaning. In Cox Evatt J was called upon to give meaning to a proviso forming part of the rule which he was construing.
It is not to the point that the rules provide no machinery provisions for the acceptance of a proxy. I accept Mr Kenzie’s submission that Branch Council is competent to determine its own procedures where the rules are silent as to procedure. Having determined that it is the intention of the rules to allow a proxy vote, the Court should be reluctant to determine that the absence of the prescription of “what form”, in the words of Bowen LJ, negates its prior conclusion regarding the intention of the rules to provide for proxies.
In Campbell v The Australian Mutual Provident Society (1906) 7 SR (NSW) 99, 120, Walker J gave an example of a sensible procedure which the directors of the relevant company were able to take regarding proxies in the absence of any such procedure in its articles of association. He said:
“To fix a short time before the meeting for the production of proxies, so that the investigation of voting power (involving no doubt reference to various books and documents containing a very large number of entries) might be completed and marked on the proxies, thus enabling the meeting to proceed to the business before it, is in my judgment a wise and reasonable arrangement which the directors (apart from the by-law) would have inherent power to make.”
Further, this Court has recognised that the objects and powers of an organisation should be interpreted broadly “so that any action which can fairly and reasonably be regarded as falling within those powers and objects will be valid”. See Scott v Jess (1984) 3 FCR 263, 287 per Gray J in the context of expenditure of funds and use of resources. See also Tanner v Maynes (1985) 7 FCR 432, 441, where Evatt and Northrop JJ adopted the abovementioned views of Gray J expressed in Scott v Jess. Applying that principle to the power of management and control of the branch vested in the Branch Council, I am of the view that the Branch Council can mould its own procedures for the use of proxies in its meetings in the absence of a machinery provision in the rules. It appears that it had adopted some type of procedure in the last two years having regard to the evidence of acceptance of proxies at Branch Council in that time. However, in making that observation I am not having regard to that “custom and practice” in construing rule 13 and I reject Mr Boccabella’s submission that I should so do. Custom and practice cannot prevail over a provision in the certified rules of an organisation. See Re Watson (1986) 14 IR 335, 339 per Keely J applying Demas v Pearson (1951) 73 CAR 3, 5 per Kelly CJ in the Court of Conciliation and Arbitration. However, here custom and practice is a neutral consideration given that it is consistent with the correct interpretation of the rules.
I am also fortified in my conclusion regarding the interpretation of rule 13 by the fact that it is an interpretation which promotes the object sought to be achieved by s 3(g) of the Act. Persons who have been elected to a position on the Branch Council, especially delegates thereto, represent their electorate. The electorate is not fully represented if any such member is unable to attend Branch Council meetings. The acceptance of proxies also enhances the prospect that a quorum will be achieved at a meeting of Branch Council. Pertinently, in Egan v Maher (1978) 20 ALR 421, 490, Smithers J said:
“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 a 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 such meetings.”
I agree with the views of Smithers J set out above. I am of the view that Mr Bor acted contrary to the rules of the Branch in refusing to accept the proxy which Mr Moffat held for Mr Bailey.
THE EFFECT OF THE COURT’S VIEWS ON THE PROXY ISSUE
Mr Moffat’s evidence was that after the proxy he held was not recognised, he remained at the meeting. In his affidavit he said:
“There was then debate at the Meeting about the filling of a casual vacancy for a Queensland Branch Delegate position by Mr Gary Ablett. If I had been able to exercise the proxy vote I would have voted against the filling of that casual vacancy.”
The wrongful exclusion of Mr Moffat from voting at the meeting had the effect that the motion to fill a casual vacancy on Branch Council was carried whereas, if Mr Moffat had been permitted to vote, the vote would have been tied and the motion would have been lost. The election of Mr Ablett as a Branch Council delegate was effected in circumstances where the relevant meeting was not conducted in accordance with the rules of CPSU. The resolution pursuant to which he was appointed is void and of no effect.
It, therefore, is not necessary for the Court to determine the question as to whether or not there was in fact a casual vacancy on Branch Council given that the term of office of current Branch Councillors has expired. That is the same question which faced Gray J in Price v Hodgson (1992) 41 IR 178, 181, but which his Honour also found unnecessary to determine.
In his affidavit Mr Moffat said that:
“I am further aware from my attendance at the Meeting that a motion was then moved that Mr Bob Ellis fill the vacant Federal Council Delegate position. Had I been able to exercise my proxy vote I would have voted against that motion for the filling of that casual vacancy.”
The motion to appoint Mr Ellis as a Federal Council Delegate was carried by nine (9) votes to seven (7). Mr Ablett voted in favour of the motion. Mr Moffat was not permitted to vote. If Mr Ablett’s vote was excluded and a vote against the motion was cast by Mr Moffat, the voting on the motion would have been tied and therefore the motion would have been lost. The election of Mr Ellis as a Federal Council Delegate was also effected in circumstances where the rules of CPSU were not complied with. The resolution appointing him to that office is void and of no effect. It is also unnecessary for the Court to determine the question as to whether or not there was a relevant casual vacancy capable of being filled.
At the meeting on 20 May 1997 there was a motion moved concerning a “national subscription” motion to be moved at a meeting of Federal Council scheduled for 13 June 1997. That motion was carried by the same margin and in the same voting circumstances as the motion to elect Mr Ellis. It suffers from the same vice and the resolution it gave effect to is void. The “national subscription motion” is set out later in these reasons.
Two further motions were moved by Mr Clinton Miles. The effect of those motions if carried would have been to direct branch delegates to the Federal Council to vote against the “national subscription” motion at Federal Council. Mr Moffat’s evidence was that if he had been able to vote he would have voted in favour of the motions. Those motions were lost by eight (8) votes to seven (7) with Mr Ablett voting against them and Mr Moffat not being permitted to exercise his vote which he would have cast in favour of the motions. Because of the failure to allow Mr Moffat to vote and the wrongful acceptance of Mr Ablett’s vote, the motions were defeated when they would have been carried had the rules of the Branch been complied with.
ORDERS
The rule to show cause in this matter, dated 6 June 1997, as amended on 11 June 1997, calls upon the respondents to show cause why:
“1.An order ought not be made, directing the first respondents to perform Rule 13 of the Queensland Branch Rules of the SPSF Group of the CPSU (“the branch rules”) by recognising the proxy of Brendon (sic) William Moffatt (sic) at the meeting of the Queensland Branch Council on 20 May 1997.
2.An order ought not be made, directing the first respondents to perform Rules 64 D and 56 of the rules of the SPSF Group of the CPSU (“the SPSF rules”) by treating the purported appointment of Gary Ablett to the position of Branch Councillor as null and void;
3.An order ought not be made, directing the first respondents to perform Rules 64 D and 56 of the SPSF rules by treating the purported appointment of Bob Ellis to the position of delegate to Federal Council as null and void;
4.An order ought not be made, directing the first respondents to perform Rule 5(v) of the branch rules by treating as carried a vote on the motions -
‘THAT THE QUEENSLAND BRANCH COUNCIL BIND THE QUEENSLAND DELEGATES TO THE FEDERAL COUNCIL OF THE STATE PUBLIC SERVICES FEDERATION GROUP OF THE COMMUNITY AND PUBLIC SECTOR UNION TO OPPOSE ANY MOTIONS WHICH HAVE THE EFFECT OF INTRODUCING A NATIONAL SUBSCRIPTION RATE OR NATIONAL MEMBERSHIP FEE PRIOR TO 1 JULY 1998.’
‘THAT THE QUEENSLAND BRANCH COUNCIL BIND THE QUEENSLAND BRANCH DELEGATES TO THE FEDERAL COUNCIL OF THE STATE PUBLIC SERVICE FEDERATION GROUP OF THE COMMUNITY AND PUBLIC SECTOR UNION TO OPPOSE ANY MOVES TO INCREASE THE CAPITATION DUES BY MORE THAN 10% PRIOR TO 1 JULY 1988 (sic).’
5.An order ought not be made, directing such respondents who are members of the Federal Council of the SPSF Group of the CPSU to perform Rules 54B A., B., C of the SPSF rules by not dealing with any motion concerning any alteration of the rules of the Group and/or any motion dealing with subscription or capitation fees until the elections for the Queensland Branch Council are completed and new delegates are elected to the Federal Council from Queensland;
6.An order ought not be made, directing such respondents who are delegates to the Federal Council of the SPSF Group of the CPSU to perform Rules 25B of the SPSF rules by not dealing with any motion concerning the fixing of any national subscription until this rule to show cause has been determined by the Court;
7.An order ought not be made, directing such respondents who are delegates from Queensland to the Federal Council of the SPSF Group of the CPSU to perform Rules 25B of the SPSF rules by voting against any resolution before the Federal Council imposing a national subscription or membership fee prior to 1 July 1998 and/or increasing capitation dues by more than 10% prior to 1 July 1998;
8.An order ought not be made, declaring Rule 56 of the SPSF rules contravenes s. 196 of the Workplace Relations Act 1996 to the extent it permits a casual vacancy to be filled after the electoral process to fill that position has started.
9.Consequential or incidental orders to the above relief, ought not be made.
10.Such further and/or other order as the court considers appropriate, ought not be made.
11.An order ought not be made, directing Sean Curley to perform Rule 25 B(v) of the SPSF Rules by supplying the auditor with details of the financiality of the 17,325 members of the Queensland branch of the SPSF so as to obtain proper audit certification.”
Below I deal with each of the orders proposed by the applicants.
Proposed Order 1.
In Darroch v Tanner (1987) 16 FCR 368, the Full Court said at 374:
“In our opinion the power conferred by s 141(1G) to ‘give directions for the performance ... of any of the rules ... by any person who is under an obligation to perform...those rules’ does not empower the court to give directions designed to overcome the effect of a past breach of a rule unless there is, on a proper construction of the rules, a continuing obligation to observe the rules, and the direction is given to secure the performance of that obligation under the rules.”
The failure to accept the proxy held by Mr Moffat is a past breach of the rules. No useful purpose is served by directing the first respondents to recognise the proxy at a meeting on 20 May 1997. That is not to say that other orders may not be made which recognise the wrongful nature of the failure to accept the proxy.
Proposed Order 2
I did not find it necessary to determine whether the particular rules excluded the possibility of Mr Ablett filling any vacancy (if one existed) on the Branch Council. Rather than make an order in the form sought, it is more appropriate to make one in the following terms:
1.The first respondents are directed to perform and observe the rules of the third respondent by treating the purported appointment of Gary Ablett to the office of Branch Councillor on 20 May 1997 as null and void.
Proposed Order 3
Consistently with the order regarding Mr Ablett it is would be appropriate to make an order in the following terms:
2.The first respondents are directed to perform and observe the rules of the third respondent by treating the purported appointment of Bob Ellis to the office of delegate to Federal Council on 20 May 1997 as null and void.
Proposed Order 4
It is appropriate having regard to these reasons for judgment to order that:
3.The first respondents are directed to perform and observe the rules of the third respondent by treating as resolutions of the Branch Council the following resolutions:
(a)That the Queensland Branch Council bind the Queensland delegates to the Federal Council of the State Public Services Federation Group of the Community and Public Sector Union to oppose any motions which have the effect of introducing a national subscription rate or national membership fee prior to 1 July 1998.
(b)That the Queensland Branch Council bind the Queensland Branch delegates to the Federal Council of the State Public Services Federation Group of the Community and Public Sector Union to oppose any moves to increase the capitation dues by more than 10% prior to 1 July 1998.
Proposed Order 5
On 11 June 1997 at the directions hearing in the mater it was ordered by consent as follows:
“The respondent Gregory Vines or any person acting in his capacity not declare any vote at Federal Council to be held on 13 June 1997, on any motion where any member of Federal Council requires a poll to be taken. Provided that any vote shall be declared if all Queensland delegates’ votes if cast as a block would not affect the result. ...”
Mr Vines, the Federal President of the SPSF Group of CPSU, gave evidence that the Federal Council meeting scheduled for 13 June 1997 was adjourned to 3 July 1997 in Sydney. At that meeting the following motion (“the national subscription motion”) was put to the meeting:
“That commencing from 1 July 1997, the annual subscription for membership of the Union which shall be payable by SPSF Group members shall be $185.04 per member, payable in monthly instalments of $15.42 per member PROVIDED THAT if a member is liable to pay subscription or membership fees of less than $185.04 per annum for membership to an Associated Body, then the annual subscription which shall be payable by each such member for membership of the Union shall be $90.70 payable in monthly instalments in the sum of $7.50 PROVIDED FURTHER THAT the preceding proviso shall not operate if the Associated Body has reduced the relevant subscriptions to less than $185.04 on or since 1 July 1995.
That the annual subscriptions fixed pursuant to paragraph 1 shall continue to apply until a new rate is fixed pursuant to the Rules.
That the annual subscriptions fixed pursuant to paragraph 1 shall be dealt with as follows.
(a)out of subscriptions paid by any member of any of the Signatory Bodies $5.00 per year will be used to fund the Federal Fund and the remainder shall be dealt in accordance with the Rules and the relevant provisions of the Deed; and
(b)out of subscriptions paid by any other member of the Group $5 will be used to fund the Federal Fund and the remainder of those subscriptions shall be paid to the Branch Fund of that member’s Branch and no part of such subscriptions shall be applied directly or indirectly towards any payment to, for or on behalf of any of the non-Signatory Bodies which has not entered into a legally binding arrangement with the CPSU as to the treatment of members and subscriptions unless such payment is a payment for services provided by that Body to the Union at the Union’s request.
Non-Signatory Bodies means that Associated Bodies which have not executed the Deed with the CPSU which was executed in July 1995. The term includes any legal entity outside the Union which is controlled or partly controlled by any of the non-Signatory Bodies.”
Mr Vines’ evidence was that:
“As the votes exercisable by the Queensland delegates if cast as a block could affect the outcome of this motion, in accordance with the first Order made by the Court on 11 June 1997 I did not declare the vote.”
In lieu of order 5 as set out in the amended rule to show cause, Mr Boccabella seeks an order that the vote on the resolution referred to above and carried on 3 July 1997 by Federal Council of the SPSF Group of CPSU never be declared. The obligation to declare the vote if it had been possible to do so would have fallen on Mr Vines therefore it is appropriate to order as follows:
4.Gregory Vines, one of the second respondents, is directed to perform and observe the rules of the third respondent by not declaring the vote on the following motion carried by Federal Council on 3 July 1997:
“That commencing from 1 July 1997, the annual subscription for membership of the Union which shall be payable by SPSF Group members shall be $185.04 per member, payable in monthly instalments of $15.42 per member PROVIDED THAT if a member is liable to pay subscription or membership fees of less than $185.04 per annum for membership to an Associated Body, then the annual subscription which shall be payable by each such member for membership of the Union shall be $90.70 payable in monthly instalments in the sum of $7.50 PROVIDED FURTHER THAT the preceding proviso shall not operate if the Associated Body has reduced the relevant subscriptions to less than $185.04 on or since 1 July 1995.
That the annual subscriptions fixed pursuant to paragraph 1 shall continue to apply until a new rate is fixed pursuant to the Rules.
That the annual subscriptions fixed pursuant to paragraph 1 shall be dealt with as follows.
(a)out of subscriptions paid by any member of any of the Signatory Bodies $5.00 per year will be used to fund the Federal Fund and the remainder shall be dealt in accordance with the Rules and the relevant provisions of the Deed; and
(b)out of subscriptions paid by any other member of the Group $5 will be used to fund the Federal Fund and the remainder of those subscriptions shall be paid to the Branch Fund of that member’s Branch and no part of such subscriptions shall be applied directly or indirectly towards any payment to, for or on behalf of any of the non-Signatory Bodies which has not entered into a legally binding arrangement with the CPSU as to the treatment of members and subscriptions unless such payment is a payment for services provided by that Body to the Union at the Union’s request.
Non-Signatory Bodies means that Associated Bodies which have not executed the Deed with the CPSU which was executed in July 1995. The term includes any legal entity outside the Union which is controlled or partly controlled by any of the non-Signatory Bodies.”
It is unnecessary, at this stage, to make formal orders directing that “any person acting in Mr Vines’ capacity” also not declare the vote. Hopefully, good sense will prevail. Any such declaration by any other acting chairman would, of course, be void.
Proposed Orders 6, 8 and 11
These orders are no longer pursued.
Proposed Order 7
A result flowing from these reasons for judgment is that the motion binding Queensland Branch delegates to Federal Council to vote against “any means which have the effect of introducing a national subscription rate or national membership fee prior to 1 July 1998” which was moved on 20 May 1997 but lost is to be treated as if it was carried and had become a resolution of Branch Council. The same applies to the motion regarding capitation fees. It is therefore appropriate to order as follows:
5.The first respondents are directed to perform and observe the rules of the third respondent by voting against any resolution before the Federal Council of the SPSF Group of the third respondent which imposes a national subscription or membership fee prior to 1 July 1998.
6.The first respondents are directed to perform and observe the rules of the third respondent by voting against any resolution before the Federal Council of the SPSF Group of the third respondent which increases capitation dues by more than ten per cent prior to 1 July 1998.
Proposed Orders 9 and 10
These orders are unnecessary.
No orders were sought against the third respondent which it appears was joined to allow it to make any submissions which it desired to make. A similar course was permitted by Gray J in Bailey v Krantz (1984) 55 ALR 345, 354. Apart from the making of the six orders referred to above, the Court will otherwise discharge the amended rule to show cause.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated:
Counsel for the Applicant: L. Boccabella Solicitor for the Applicant: Quinlan Miller & Treston Counsel for the First Respondents: A. Herbert Solicitor for the First Respondent: Carne & Herd Counsel for the Second Respondents those of whom entered an appearance R Kenzie QC
Solicitor for the Second Respondents Jones Staff & Co
Counsel for the Third Respondents S. Howells Solicitor for the Third Respondents Gill Kane & Brophy Date of Hearing: 8 July 1997 Date of Judgment: 12 August 1997
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