Rolph, John Charles v Transport Workers Union of Australia

[1984] FCA 109

Re: JOHN CHARLES ROLPH
And: TRANSPORT WORKERS' UNION OF AUSTRALIA
No. A.C.T. 2 of 1983
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Neaves J.

CATCHWORDS

Industrial Law - Commonwealth - Registered organization - Rules - Resolutions by special meeting of branch that branch secretary guilty of substantial breach of the rules, gross misbehaviour and gross neglect of duty - Office of branch secretary declared vacant - Whether proceedings in breach of the rules - Whether a denial of natural justice - Validation by operation of statute - whether application of validating provision would do substantial injustice.

Conciliation and Arbitration Act 1904, sections 171F and 171G

Australian Workers' Union v. Bowen (No. 2) (1948) 77 C.L.R. 601

Norman and Moran v. National Dock Labour Board (1957) 1 Lloyd's Rep. 455

Re Compaction Systems Pty. Ltd. and the Companies Act (1976) 2 N.S.W.L.R. 477

HEARING

CANBERRA

#DATE 17:4:1984

ORDER

The Court orders that the application be dismissed.

JUDGE1

This is an application by John Charles Rolph ("the applicant") for an order under section 171G of the Conciliation and Arbitration Act 1904 ("the Act"). The particular order sought is an order declaring that the application of section 171F of the Act to certain motions declared carried, and a certain further declaration made, at a special meeting of the Tasmanian Branch of the Transport Workers' Union of Australia ("the Union") held on 7 August 1976 would do substantial injustice having regard to the interests of the Union, members or creditors of the Union or persons having dealings with the Union (sub-section 171G(1)). The effect of such a declaration, if made, is that section 171F does not apply, and is deemed not to have applied, in relation to the motions declared carried and the further declaration made at that special meeting.

The application as originally filed also sought an order under section 171G of the Act in relation to the application of section 171B but the applicant did not proceed with that part of the application and the application was amended accordingly.

Section 171F of the Act, so far as material, provides -

"(1) Subject to this section and to section 171G, upon the expiration of 4 years from -

(a) the doing of an act -
(i) by, or by persons purporting to act as, a collective body of an organization or branch of an organization and purporting to exercise power conferred by or under the rules of the organization or branch; or
(ii) . . . .

(b) . . . .

(c) . . . .
the act . . . . shall, for all purposes, be deemed to have been done in compliance with the rules of the organization or branch."

The expression "collective body" is defined in section 171A to mean -

"(a) in relation to an organization - the committee of management or any conference, council, committee, panel or other body of or within the organization; and

(b) in relation to a branch of an organization - the committee of management or any conference, council, committee, panel or other body of or within the branch."

The motions declared carried at the meeting on 7 August 1976 were motions -

that the applicant was guilty of committing a substantial breach of the rules of the Union;

that the applicant was guilty of gross misbehaviour;

that the applicant was guilty of gross neglect of duty;

that a vote of no confidence against the applicant be recorded; and

that in future the Committee of Management not accept the applicant's nomination for any position whatsoever in the Tasmanian Branch of the Union.

Each of the above motions was declared to have been carried unanimously. The further declaration to which the application relates was a declaration by the chairman of the meeting that the position of Branch Secretary of the Tasmanian Branch of the Union previously held by the applicant was vacant.

Before examining what took place at the meeting and the events leading up to it, it is necessary to refer to certain of the rules of the Union that were in force at the relevant time.

The objects of the Union (which was, and is, an organization registered pursuant to the Act) as set out in rule 2 were, in part -

"The objects of the Union shall be to uphold the rights of the combination of labour and to promote, foster and maintain the industrial organization of all transport workers into one union; and to promote the best industrial interests of all the members in any matter including affiliation with any joint body comprised of trade unions and approved by resolution of the Federal Council."

Then followed a series of lettered paragraphs to which it is for present purposes unnecessary to refer. Any member who acted contrary to the objects of the Union as set out in rule 2 was to be deemed to have failed to abide by the rules of the Union (rule 2A).

Subject to the provisions of the Act, the supreme control of the Union was vested in a Federal Council constituted by a representative or representatives from each branch (called Federal Councillors) and the Federal Secretary and the Assistant Federal Secretary (sub-rule 5(a)). The Federal Council was to elect a Federal Committee of Management (sub-rule 5(c) and rule 23). Provision was made for the constitution of branches and for the election within each branch of branch officers (including a Branch President and a Branch Secretary) and a Branch Committee of Management which, subject to the rules, was to have control of all business of the Union within the area over which it was constituted to operate (sub-rules 5(f) and rules 6 and 30).

Rule 25A provided -

"Notwithstanding anything whatsoever to the contrary in any of the Rules no person elected to any office within the Union shall be dismissed from office unless he has been found guilty, in accordance with the Rules, of misappropriation of the funds of the Union, a substantial breach of the Rules of the Union or gross misbehaviour or gross neglect of duty or has ceased, according to the Rule (sic) of the Union, to be eligible to hold the office."

Rule 37, so far as material provided -

"(c) The Branch President or Branch Secretary upon receipt of a petition signed by 100 or more financial members, shall call a special meeting of the Branch to hear specific charges which shall be clearly set out in the petition against the Branch Committee of Management as a whole, or any one or more members thereof.

. . . .

(e) At any meeting held in accordance with this Rule the actions of those charged shall be considered and he or they shall be heard in defence. It shall be competent for such meeting to carry a motion of no confidence in any members, or all, of those charged.
(f) Whenever a motion of non-confidence has been carried in accordance with this Rule, the Chairman of the meeting at which such motion was passed shall declare vacant the position or positions held by the member or members affected by the motion and nominations to fill such position or positions shall be called for by advertisement in the daily press, and the provisions of Rules 33 and 34, in so far as applicable, shall apply in the election to fill the position or positions affected. . . . . . . . .

(g) No petition presented in accordance with this Rule shall be acted upon unless, at the time of being signed, it is prefaced with the provisions of Rule 58(e).

(h) No motion under this Rule shall be deemed to be carried or acted upon unless two-thirds of the members voting thereon have voted in favour of the motion."

Rule 33 provided for nominations for office within a branch to be received by the Branch Returning Officer appointed pursuant to rule 35. Rule 34 provided for the conduct of branch elections.

Rule 43 provided for the holding of meetings. Sub-rules (f), (g) and (l), so far as material, provided -

"(f) Ordinary meetings of each Branch Committee of Management shall be regularly held at a time and place determined by it. Provided such ordinary meetings shall be effectively held at least every six months. . . . . . . . .

(g) Special meetings of a Branch Committee of Management may be held from time to time to determine any matter which requires urgent attention.

The special meeting shall be convened by the Branch Secretary by written notice to each member of the Branch Committee of Management. Such notice shall clearly show the time and place of the meeting and the nature of the business to be determined and it shall be conveyed by hand or telegram or postal mail provided the method of conveyance used shall have regard to the time and place of the meeting.

The Branch Secretary shall act to convene special meetings when the events set out hereunder arise:
(i) When the Branch President and the Branch Secretary agree a meeting is desirable or necessary.
(ii) When a majority of the members of the Branch Committee of Management make a written request to the Branch Secretary or the Branch President.
Provided if the Branch Secretary is unable or fails otherwise to convene a special meeting the Branch President is empowered to act for that purpose.

. . . .

(1) All meetings other than Branch Committee of Management shall start not later than 8 p.m., provided that a quorum is present at that time. If no quorum is present at 8.15 p.m., or fifteen minutes after the time set down for the opening of the meeting the meeting shall lapse. All meetings shall close not later than 10 p.m., unless otherwise determined by resolution for the purpose of concluding business under discussion. No meeting shall continue after 10.30 p.m. under any circumstance."

By virtue of sub-rule 44(f), at a special meeting called by petition in accordance with rule 37, not less than 75 per cent of the members who signed the petition were required to be present at such meeting and the total number of members present was to be not less than 100 in any branch in which the membership exceeded that figure. At the relevant time the membership of the Tasmanian Branch was a little less than 3,000.

Rule 46 set out the rules of debate. Its provisions included the following -

"(c) No discussion shall take place on any motion or amendment unless such motion or amendment is duly proposed and after the mover is finished speaking, it is seconded. Any number of amendments may be proposed and discussed simultaneously with the motion.

(d) When a motion shall have been duly proposed and seconded, the Chairman shall at once proceed to take the vote thereon, unless some member rises to oppose it, or to propose an amendment; but no amendment shall be in order unless notice be given to move same before the proposer of the motion has replied."

Sub-rule 58(e) provided -

"Should any member who signs a petition in accordance with Rule 37 fail to attend the meeting called as a result of such petition, he shall be fined a sum not exceeding ($20) by the Branch Committee of Management of the Branch of which he is a member, unless he provides a satisfactory reason to the Branch Committee of Management for non-attendance at the said meeting."

The applicant was elected to the office of Branch Secretary - Treasurer - Federal Council Representative of the Tasmanian Branch of the Union in or about December 1973. Sub-rule 61(a) of the rules of the Union provided for that office to be referred to in the rules as the office of Branch Secretary. For convenience I shall adopt that abbreviation. In the ordinary course of events the applicant's term of office would have continued until December 1979 when the position would have been the subject of a further election.

On 26 April 1976 the applicant, as Branch Secretary, received a petition expressed to be pursuant to rule 37 of the rules of the Union and appended to which were the signatures of 153 persons purporting to be financial members of the Tasmanian Branch. After setting out the text of sub-rule 58(e) as required by sub-rule 37(g), the petition read -

"Pursuant to Rule 37 of the Rules of the Transport Workers Union of Australia we the undersigned being, together with members who have signed identical requests, in aggregate in excess of 100 financial members hereby require you to convene a special general meeting of the Transport Workers Union of Australia, Tasmanian Branch, to hear the specific charges against the Branch Secretary, John Charles Rolph, as set out below and to take such decisions as may be required thereon and the rules may permit:-

John Charles Rolph being the Branch Secretary of the Tasmanian Branch of the Transport Workers Union of Australia (being an Organisation of employees registered under the Conciliation and Arbitration Act 1904, as amended,) was guilty of and did commit a substantial breach of the rules of the said Organisation or was guilty of gross misbehaviour or was guilty of gross neglect of duty by the following conduct:-

PARTICULARS

1 The said John Charles Rolph did on or about the 14th day of March, 1976 dismiss a paid employee, Mrs. Eleanor Margaret Hunter without the authority of the Branch Committee of Management of the Transport Workers Union of Australia Tasmanian Branch contrary to Rule 30 sub rule (f) of the Rules of the Transport Workers Union of Australia.

2 Additionally or alternatively, the said John Charles Rolph did contrary to the objects of Rule 2 of the Transport Workers Union of Australia fail to uphold the principles of the combination of labor and to promote foster and maintain the industrial organisation of all workers in that he employed non-union labor in employing one Pam Lee to perform the work of other employees on strike and later locked out.

3 Additionally or alternatively, the said John Charles Rolph did contrary to the objects of Rule 2 of the Transport Workers Union of Australia fail to uphold the principles of the combination of labor and to promote foster and maintain the industrial organisation of all workers in that he employed non-union labor in employing one Lindy Hill from 8th December, 1975 for a period of approximately 3 months in a non-union capacity.

4 Additionally or alternatively, the said John Charles Rolph did contrary to the objects of Rule 2 of the Rules of the Transport Workers Union of Australia failed (sic) to uphold the principles of the combination of labor in that he dismissed Mrs. Eleanor Margaret Hunter while she was on strike over conditions of employment and working conditions.

5 Additionally or alternatively, the said John Charles Rolph did contrary to Rule 43 of the Rules of the Transport Workers Union of Australia fail to convene a meeting of the Branch Committee of Management when requested by notice given on the 20th March, 1976 to the President by the majority of the said Committee of Management so to convene a meeting as a matter of extreme urgency.

6 Additionally or alternatively, the said John Charles Rolph did lock out one Eleanor Margaret Hunter on and after the 29th day of March, 1976 from her place of work at the offices of the Transport Workers Union of Australia, Tasmanian Branch at Trades Hall, 219 New Town Road, New Town.

7 Additionally or alternatively, the said John Charles Rolph did lock out one Eleanor Margaret Hunter on and after the 29th day of March, 1976 from her place of work at the offices of the Transport Workers Union of Australia, Tasmanian Branch at Trades Hall, 219 New Town Road, New Town contrary to an order of J.W. Miley made at Hobart on the 26th day of March, 1976 pursuant to the provisions of Section 50 of the Industrial Relations Act 1975.

8 Additionally or alternatively, the said John Charles Rolph did contrary to the Poisons Act 1971, as amended, bring on to the premises of the offices of the Transport Workers Union of Australia Tasmanian Branch at Trades Hall, 219 New Town Road, New Town a prohibited substance within the meaning of the said Act.

9 Additionally or alternatively, the said John Charles Rolph did knowingly present to the Branch Committee of Management a photocopy of an Auditor's Report signed by S.P. Dwyer A.A.S.A. for the year ending 31st December, 1972 knowing that the said report had deleted from it certain words to wit:

I In the second paragraph after the word 'opinion' first occurring the words 'and subject to the qualification below the statement of income and expenditure'

II The third paragraph of the said report which paragraph reads as follows:-

'The qualification to which I refer, is in respect of Rule 38(e)(v) which deals with the payments of accounts and which gives the Branch Committee of Management certain powers. The Branch Committee of Management acting on this has passed a resolution that all regular recurring expenses or accounts may be paid without prior reference to it; in my opinion this is too broad, and I feel the Branch Committee of Management should define the expenses or accounts to which their resolution refers, if for no other reason than the sake of clarity.'

10 Additionally or alternatively, the said John Charles Rolph did credential to represent the Transport Workers Union of Australia Tasmanian Branch at the conference of the Australian Labor Party Tasmanian Section persons who were not members of the Transport Workers Union of Australia and persons who were not eligible for membership thereof and stated in writing to the Australian Labor Party Tasmanian Section that these persons were chosen at a duly convened meeting of the Union held on 23rd day of September, 1975 when in fact no such meeting took place.

We request that the meeting be held at the Trades Hall, 219 New Town Road, New Town on 7th May, 1976 commencing at 7.30pm. If within seven days of receipt of this petition you have not taken the required measures to convene the meeting, take notice that it is intended to take such measures as are available under the Rules and/or the Conciliation and Arbitration Act to ensure that the special general meeting of the Branch is held."

The special meeting not having taken place, proceedings were commenced in the Australian Industrial Court by rule to show cause issued on 3 May 1976 at the instance of seven members of the Branch Committee of Management. The proceedings sought orders under section 141 of the Act against the Branch President (Mr. Harding) and the Branch Secretary (the present applicant) that they perform or observe the rules of the Union by convening a special meeting of the Branch Committee of Management for the purpose of taking decisions concerning the arrangements for the special meeting of the Branch the subject of the petition and by attending and remaining in attendance at that meeting.

On 11 May 1976 an assurance was given to the Court by Mr. Harding and the applicant that, subject to the petition being found to be in proper form and in accordance with the rules, the special meeting of members would be called promptly. In the event the meeting was not called, Mr. Harding and the applicant claiming that the petition did not conform with the rules.

The matter was further heard before the Court on 10 June 1976 and subsequent days. The rule to show cause was amended to permit an order to be sought that Mr. Harding and the applicant perform or observe the rules of the Union by convening a special meeting of the Tasmanian Branch at such time and place as might be determined by the Branch Committee of Management. The issue litigated before the Australian Industrial Court was whether the petition had been signed by 100 or more financial members as required by sub-rule 37(c). The Court concluded that it had and on 25 June 1976 made an order that Mr. Harding convene and conduct as chairman a special meeting of the Tasmanian Branch to be held at 6.30 p.m. on 16 July 1976 at the Polish Hall, New Town, Hobart, and gave various detailed directions for advertising and conducting the meeting.

A meeting was held pursuant to the Court's order. What took place at the meeting is referred to in the judgment of the Australian Industrial Court in Rowling v. Harding (1976) 27 F.L.R. 369 at pp. 374-6. In the event the meeting closed at 10.30 p.m. (see sub-rule 43(1)) without having completed the hearing of the specific charges contained in the petition. At the time the meeting closed the applicant was addressing it in relation to the matters alleged against him.

Further proceedings then ensued in the Australian Industrial Court. The matter came on for further hearing on 27 July 1976 and on 28 July 1976 the Court gave directions as follows -

"A. That the respondent, Harding; do perform and observe the rules of the organisation by convening a special meeting of members of the Tasmanian Branch to be held at 10.00 a.m. on the 7th day of August, 1976 at the Hobart Town Hall to hear specific charges set out in the petition signed by one hundred or more financial members of the Tasmanian Branch of the organisation being exhibit 'B' in these proceedings.

B. That the Respondent, Harding, at the expense of the Tasmanian Branch of the organisation, convene and conduct as Chairman the said meeting in accordance with the rules of the Union and in particular rules 25(A), 32, 37, and 46 in accordance with the following directions -

1. NOTICE of the said meeting shall be given by advertisement in the form of the first schedule hereto to be inserted in the issues for the 31st day of July, 1976 and the 6th day of August, 1976 of the Hobart Mercury, the Launceston Examiner and the Burnie Advocate newspapers.

2. ADMISSION to the meeting shall be only upon presentation to the Deputy Industrial Registrar, Mr. Coates, or an assistant or assistants nominated by him of a 1976 membership medallion or an official receipt issued on or before the second day of July, 1976 for the full amount due from the member concerned in respect of his contribution for membership of the Tasmanian Branch for 1976.

3. THE Respondents, Harding and Rolph, shall by 5.00 p.m. on Thursday the 5th day of August 1976 forward to the said Deputy Industrial Registrar six copies of a list of financial members of the Branch as at the 2nd July, 1976 arranged in alphabetical order. Upon a member presenting his medallion or receipt seeking admission to the meeting, the said Deputy Industrial Registrar or his assistant shall tick the name where appearing on the said list. The Respondent, Rolph, and the applicant, Mayne, may each by notice in writing to Mr. Coates appoint scrutineers equal in number to Mr. Coates and his assistants.

4. THE Respondent, Harding, shall declare the meeting open as soon after 10.00 a.m. as he is advised that 114 of those members who signed the petition are present at the meeting.

5. THE Respondents shall arrange for copies of the said Petition to be available for members at the meeting and shall advise members of this at the opening of the meeting.

6. THE Respondent, Harding, shall use his best endeavours to conduct the meeting in accordance with the rules having regard to the implied provision that the requirements of natural justice shall be observed and to conduct the meeting so far as possible in an orderly and effective manner with a view to the carrying out of the business of the meeting. The Respondent shall in particular accept any motion duly proposed and seconded and any amendment properly proposed to any such motion as to the procedure to be adopted at the meeting. The respondent, Harding, shall accept any motion of dissent moved in accordance with Rule 46(m) and take such steps as are appropriate to allow the motion of dissent to be dealt with. The Respondent, Harding, shall accept any motion for the adjournment of the meeting moved in accordance with Rule 46(n) and allow the same to be put to the meeting.

7. AT the conclusion of the debate and discussion on the charges in the said petition, if any resolution is moved finding the Respondent, Rolph, either guilty or not guilty of any charge or charges the Respondent, Harding, shall put the resolution to a vote. If a resolution finding the Respondent, Rolph, guilty of any one or more of the charges specified in Rule 25(A) and a motion of no confidence in the Respondent, Rolph, is then moved and seconded, the Respondent, Harding, shall then allow such motion to be put to the meeting. Such a resolution or motion shall be deemed to be carried only if two-thirds of the members voting thereon have voted in favour of the motion.

8. A full transcript of the proceedings of the said meeting shall be made by Mr. Nicholas John Armstrong or such other person as the said Deputy Industrial Registrar may appoint. The Deputy Industrial Registrar shall arrange for a transcript to be prepared and a copy thereof shall be given to the Respondent, Rolph, and to Mr. C.W. Mayne.

9. PARAGRAPHS 6 and 7 shall be read by the Respondent, Harding, as soon as convenient after the meeting opens."

The Court reserved liberty to the parties to apply to the Court for such further or other directions as they might be advised.

The Court, by majority, held that the orders originally sought in the rule to show cause issued on 3 May 1976 should not be made, the Branch President and the Branch Secretary being under no obligation to call a special meeting of the Branch Committee of Management for the purpose of taking decisions concerning the arrangements for the special meeting of the Branch to consider the charges against the applicant. The Court, however, ordered that the rules of the Union be performed and observed by the holding of an ordinary meeting of the Branch Committee of Management at 9.30 a.m. on 31 July 1976.

The applicant was made aware on 28 July 1976 of the orders made by the Australian Industrial Court on that day. By letter dated 30 July 1976 addressed to Mr. Harding the applicant, referring to the order requiring a meeting of the Branch Committee of Management to be held on 31 July 1976, said -

"I seek therefore that the record should show that I totally and completely reject such unjustifiable action of such Court, and I make it abundantly clear hereby that any respect that I may have held or expressed in or to such Court in this matter, I now without any reservations whatsoever withdraw and revoke the same forthwith, and give notice hereby that I shall and do stand in contempt of such a rape of justice. With serious regard and consideration of this matter and its implications I therefore and do hereby tender and give notice of my resignation forthwith, from the elected office of BRANCH SECRETARY-TREASURER- FEDERAL COUNCIL REPRESENTATIVE in the Tasmanian Branch of the 'TRANSPORT WORKERS' UNION OF AUS- TRALIA' an organisation of employees registered and incorporated under the Australian 'Conciliation and Arbitration Act, 1904-1976.'

"This action by myself in this matter, will allow such office to be contested and determined by each and every eligible member of the Union, by manner of a secret postal ballot."

Mr. Harding replied by letter dated 4 August 1976 which the applicant received probably on 5 August 1976 but certainly prior to 7 August 1976. The reply read -

"I am in receipt of your letter dated July 30th 1976 in which you spoke of resignation from the elected office of Branch Secretary Treasurer, Federal Council Representative in the Tasmanian Branch of the Transport Workers Union of Australia.

"As you will no doubt be aware under the rules of our Branch you are obliged to give 28 days notice in writing of your intention to resign.

"I desire to point out that insofar as you intended your letter to be an actual tender of resignation that the same has not been and cannot be accepted as an actual resignation.

"In the circumstances, unless by return mail you indicate to the contrary your letter will be treated as due notice under the rules of your intention to resign after the expiration of 28 days from the 30th July the date of your letter.

"In the meantime, the General Meeting of the Branch will, as ordered by the Court, be held at 10.00 a.m. at the Hobart Town Hall on Saturday morning August 7th, 1976. You are still a member of the Branch and the meeting will proceed as ordered. If you wish to be heard in your defence you should attend."

On 4 August 1976 Messrs. Jennings, Elliott and Stanwix, Solicitors for the applicants in the proceedings in the Australian Industrial Court to which I have referred, addressed a letter to Mr. M.N. Cooper, one of the applicants in those proceedings, giving advice in relation to the meeting to be held on 7 August 1976. I do not find it necessary to refer to the detail of that letter.

There is in evidence before me a transcript of the proceedings of the meeting on 7 August 1976. After some preliminary remarks Mr. Harding, as chairman, declared the meeting open. Mr. K.A. Crisp, a member of the Branch Committee of Management, presented the case in support of the petition. He began by reading the petition to the meeting. He then called Mr. R.W.F. Young, a member of Messrs. Jennings, Elliott and Stanwix, Solicitors, to speak to the meeting in relation to the allegation in paragraph 9 of the particulars set out in the petition. After Mr. Young had spoken and answered questions put to him by members, Mr. Crisp read to the meeting a statutory declaration made by Mr. J.J. Foley directed to the matter referred to in the same paragraph of the particulars. Reference was also made in connection with that allegation to statutory declarations made by Mr. M.N. Cooper and Mrs. E.M. Hunter but these were not read to the meeting. That of Mr. Cooper was said to be in similar terms to that of Mr. Foley. Mrs. Hunter was called before, and spoke to, the meeting.

A member from Launceston then suggested to the chairman that a vote be taken whether the applicant was guilty or not guilty of the matter alleged in paragraph 9 of the particulars before considering material relating to other paragraphs of those particulars. The transcript of the meeting then records the following -

"CHAIRMAN: But prior to doing that I suggest, maybe, that we find out if John Charles Rolph is in the building and he be given a chance, or an opportunity, to answer that charge. I think this is a reasonable request with due regard to natural justice. So I'll ask somebody please - Clarrie Mayne, would you please ascertain if John Charles Rolph is within the precincts of the hall?

VOICE: John Charles Rolph is not available.

CHAIRMAN: Gentlemen, you have heard the report John Charles Rolph is not in attendance to defend himself so I will now accept any resolution that you may wish to put to the chair."

Mr. M.N. Cooper gave evidence before me, which I accept, as to what occurred when the chairman asked that it be ascertained whether the applicant was within the precincts of the hall. Mr. Cooper said -

"Mr. Parish, who was one of the members attending the meeting, and has a pretty good voice, was asked to - I do not know whether he was asked there and then, but it was his responsibility to do any calling that had to be done. He did that in the hall, down the stairs and on the steps of the Town Hall. It was reported by him that John Charles Rolph was not present."

The motion that the meeting "hear each charge in its entirety to the extent of voting on it before we proceed to another charge" lapsed for want of a seconder. A motion that "all charges be heard and at the conclusion of all charges a vote be taken" was then carried.

Mr. Crisp referred the meeting to material relating to what was alleged in paragraph 1 of the particulars, namely the action of the applicant in dismissing Mrs. E.M. Hunter, a paid employee of the Union, on or about 14 March 1976 without the authority of the Branch Committee of Management, an action said to be contrary to sub-rule 30(f) of the rules of the Union. That subrule provided -

"All paid Officers, Organizers and employees of a Branch shall be subject to the control and direction of the Branch Committee of Management as expressed through the Branch Secretary."

In relation to that allegation Mr. Crisp referred the meeting to the relevant rule and the reasons given by the applicant to the Branch Committee of Management on 13 March 1976 to support the dismissal of Mrs. Hunter. The meeting was informed that the Committee did not regard the reasons advanced as sufficient but that, notwithstanding this expression of view by the Committee, the applicant on the following day signed a notice of dismissal and handed it to Mrs. Hunter. Statements by Mr. T. Goodsell and Mr. W.S. Bevan were read to the meeting as was the notice of dismissal signed by the applicant on 14 March 1976 and a further notice of dismissal given on 29 March 1976. Mrs. Hunter also answered questions relating to the matter put to her by Mr. Crisp but it is apparent that much of what Mrs. Hunter said related to the reasons given by the applicant to support the notice dated 29 March 1976 and not the notice referred to in paragraph 1 of the particulars.

Mr. Crisp made passing reference to paragraph 2 of the particulars and then referred to paragraph 3 thereof, reading in support of that paragraph a letter addressed to the Branch Committee of Management by the Tasmanian Branch of the Federated Clerks' Union of Australia.

In relation to paragraph 4 of the particulars, Mrs. Hunter answered questions put to her by Mr. Crisp and by members from the floor.

Mr. Crisp made a statement to the meeting as to paragraph 5 of the particulars and Mrs. Hunter spoke concerning paragraphs 6 and 7. Mr. Crisp then made short statements concerning paragraph 8 and paragraph 10 and in relation to the latter paragraph referred to credential forms. Mr. W. Bevan also spoke to the meeting in relation to paragraph 10.

Mr. Crisp concluded what he wished to say to the meeting in the following words -

". . . what in fact we do find is that the Secretary has sacked without authority, without due cause has engaged in lockouts, has employed non-union labour and has not attempted in any way to resolve the dispute. It sounds like an employer, one of the worst you could find, we are talking about. I find it very distressing to find that in fact we are talking about a Union Secretary. So without further ado I will turn it over to the meeting now to exercise their prerogative to vote on any of these matters."

The first four of the motions to which I have already referred, that is to say, the motions relating to the applicant's guilt on the charges of committing a substantial breach of the rules of the Union, of gross misbehaviour and of gross neglect and that of no confidence, were put separately to a vote and each was carried unanimously. The chairman then, pursuant to rule 37, declared vacant the position of Branch Secretary of the Tasmanian Branch of the Union. The motion concerning the non acceptance in the future by the Branch Committee of Management of any nomination from the applicant for any position in the Tasmanian Branch was then put and carried. The meeting was then closed.

In consequence of the office of Branch Secretary being declared vacant, an election for that office was held. On 24 September 1976 Mr. K.A. Crisp was declared elected unopposed. On 17 November 1976 Mr. Crisp submitted his resignation which, under the rules, took effect at the expiration of 28 days thereafter. Mr. M.N. Cooper was appointed to administer the Tasmanian Branch pending the holding of a further election. He was elected unopposed as Branch Secretary in or about May 1977 and was re-elected to the position in 1979 and again in 1982.

Sub-section 171G(2) provides that the Court may make an order under sub-section (1) on the application of the organization, a member of the organization or any person having a sufficient interest in respect of the organization. The applicant's standing to make the present application was not challenged.

To support the contention that what was done at the meeting on 7 August 1976 by way of finding the applicant guilty of the charges laid against him was not a proper exercise of the power conferred upon the meeting by or under the rules of the Union, the applicant asserted that there had been a failure to perform or observe rule 25A, sub-rule 37(e) and rule 46 and that there had been a failure to comply with the applicable principles of natural justice. Stated in that way the question whether there had been a failure to comply with the applicable principles of natural justice appears to be a separate question from that concerning the failure to perform or observe the rules. In truth, however, they are but different aspects of the same question. For the principles of natural justice that are applicable arise as a necessary implication from the terms of the rules themselves. The rules, on their proper construction, require, and this was not the subject of dispute, that a person in the situation of the applicant have proper particulars of that which is alleged against him and an adequate opportunity to present his defence and that the meeting called to consider his guilt reach its decision honestly and in good faith.

The general principles to be applied are conveniently set out in the following passage in the judgment of Dixon J. (as he then was) in Australian Workers' Union v. Bowen (No. 2) (1948) 77 C.L.R. 601 at p. 628 -

"It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive".

See also Norman and Moran v. National Dock Labour Board (1957) 1 Lloyd's Rep. 455.

Attention was directed to the form of the petition in that it stated in the alternative the charges alleged against the applicant followed by 10 paragraphs described as "Particulars". It was submitted that the petition was defective in that it did not convey to the applicant which of the alternative charges was being alleged against him and in that it did not identify which of the particulars related to each of the alternative charges alleged. Further, it was said that the particulars, even if found proved, were not sufficient to sustain any of the alternative charges.

In my opinion the petition provided a sufficient foundation for the proceedings of the special meeting of the branch of the Union held on 7 August 1976. That is not to say that the form of the petition may not properly be the subject of criticism. It is, in my view, undesirable that charges be stated in the alternative. Further, the particulars of each charge should be set out in such a way that the person charged can be under no doubt which specific incidents are relied upon as supportive of each charge. However, having said that, I am satisfied that the petition was adequate to convey, and did convey, to the applicant the specific matters which were alleged against him and I am left in no doubt that he fully understood what it was that he had to meet. I am also satisfied that the specific matters alleged against the applicant were such that they could, if proved, properly found the charges alleged. Whether those matters were proved and, if so, whether they amounted to a substantial breach of the rules, gross misbehaviour or gross neglect of duty was, of course, a matter for the special meeting to determine.

It was submitted by the applicant that, as not more than one third of the members of the Tasmanian Branch of the Union resided in the Hobart district, the meeting should not have been held in that city. He also submitted that he had inadequate time for the preparation of his defence. As has already been said, the meeting was held pursuant to the order of the Australian Industrial Court made on 28 July 1976. The Court fixed the time and place of the meeting. The applicant was represented by counsel before that Court and so far as appears no objection was raised as to the venue of the meeting or the date upon which it was to be held. Having regard to the history of the matter and, in particular, to the circumstance that the applicant had received the petition some months before and had at the special meeting held on 16 July 1976 embarked upon his defence to some of the allegations set out in the petition, there is, in my view, no substance in the submissions.

Next it was said that the meeting held on 7 August 1976 did not hear his defence. Allied to this was a submission that the meeting should have been adjourned to a later date so that it might hear the applicant in his defence or at least so that it might ascertain and consider the reasons for the applicant's non-attendance on 7 August 1976.

The rules, on their proper construction, do not mean that a special meeting of a branch cannot proceed to deal with matters raised in a petition presented under rule 37 if the person charged refused to put forward any material in his defence. The rules mean no more than that the meeting must afford to the person charged an adequate opportunity to put such material before it. The applicant did not argue that the meeting was precluded from proceeding because of his absence from the meeting but contended that, because he was not present, the meeting should have been adjourned to a later date so that he might then present his defence or, alternatively, so that the meeting might consider why he did not attend on 7 August 1976.

It is clear that the applicant was aware on 28 July 1976 that the meeting was to take place on 7 August 1976 and that its purpose was to consider the charges laid against him. He was familiar with the rules of the Union and was well aware that the meeting would consider the question of his guilt or innocence of the charges and that, if found guilty, the meeting could result in the office of Branch Secretary which he then held being declared vacant.

The applicant gave evidence before me of what he referred to as a concerted and concentrated attack on himself in the office of Branch Secretary, an attack which included harrassment and threats to himself and his family. He said that by reason of those matters and the heavy work load arising from industrial disputation involving the Union, he was not in a fit physical or psychological state to attend the meeting on 7 August 1976. He further said that he had spent some part of that day in bed though he agreed that he had not consulted a medical practitioner concerning his illness prior to the meeting. He said he did so later in August or September 1976 and was diagnosed as suffering from glandular fever. No medical evidence was called to support any of these statements. In the course of cross-examination by counsel for the Union the following exchange took place -

"Q. You resolved some time before 7 August that you would not attend the general meeting?
A. Yes.

Q. When did you come to that conclusion? A. I would be unable to say.

Q. Certainly it was on or before Thursday 5 August?
A. I could not really say - likely to be before that date, I would think."

The applicant also referred to the decision not to attend the meeting as a tactical decision.

The applicant's conduct in relation to the hearing of the charges alleged in the petition is of a pattern. The meeting held on 16 July 1976 was to commence at 6.30 p.m. but it did not commence until some time later because of the difficulty of ensuring that only those qualified to attend did so. Under the rules the meeting could not continue beyond 10.30 p.m. and the applicant took the view that if he could ensure that the meeting did not reach a conclusion on the charges before that time the meeting would close and the petition would lapse. In fact the meeting did close without having heard the whole of the charges and, indeed, without having heard all that the applicant wished to say on the three paragraphs of the particulars that were then before the meeting. I am satisfied that, when the Court ordered that a further meeting be held to consider the charges alleged in the petition, the applicant resolved that he would not attend in the expectation that the meeting would in some way miscarry and proceedings could be taken to have any decisions taken set aside. The applicant made no attempt to notify the meeting that he could not be present or to seek an adjournment of the meeting.

I am satisfied that the applicant was afforded a proper and adequate oportunity to present his defence to the petition and that he chose not to avail himself of it. In those circumstances I cannot agree that the meeting was precluded from proceeding. Further, the meeting was under no obligation to adjourn to ascertain the reasons why the applicant did not attend.

The applicant also sought to impugn the proceedings of the meeting held on 7 August 1976 by drawing attention to the absence in the rules of the Union of any right of appeal against the findings made by the meeting. In my opinion there is no substance in this submission. Nor is there, in my view, substance in the further submission made by the applicant that he was denied natural justice for the want of an express warning that if he did not attend the meeting consideration of his guilt of the charges laid against him would proceed in his absence with the possible consequence of his removal from office. I have no doubt that it was obvious to him that this would be the course events would take if he chose not to attend.

It was also submitted that the meeting voted on motions not duly proposed and seconded by members in accordance with rule 46 of the rules of the Union. There is no doubt that there was some confusion over the form of the motions upon which the meeting was to vote. After Mr. Crisp completed what he wished to say in support of the charges, a motion was put by Mr. Glover, seconded by Mr. Webberly, that a vote be taken whether the applicant was guilty or not guilty of all the charges against him. An amendment was moved by Mr. Mayne, seconded by Mr. Parish, to the effect that a separate vote be taken in respect of each of the three charges. That amendment was carried. A motion was then put by Mr. Mayne, seconded by Mr. Parish, that the applicant be found guilty or not guilty of committing a substantial breach of the rules of the Union. That motion was carried but it was then pointed out that the vote did not determine whether the applicant was guilty or not guilty. The mover of the motion then apparently clarified the matter with the minute secretary. The transcript of the meeting then records as follows -

"CHAIRMAN: The mover of the motion and seconder have sorted it out now and it has been moved by C. Mayne and seconded by R. Parish and I put it to you as they request that I do - Do you find John Charles Rolph guilty of committing a substantial breach of the Rules of the Transport Workers' Union of Australia? All those that do so find please raise their right hand.

CHAIRMAN: Gentlemen, you may lower your hand now. All those who wish to find him not guilty of that charge will you please raise your left hand. Well gentlemen, on the first charge there is a unanimous decision that you have found John Charles Rolph guilty of committing a substantial breach of the Rules of the Transport Workers' Union. The second charge is Do you find John Charles Rolph guilty of gross misbehaviour? If you find John Charles Rolph guilty of gross misbehaviour would you please raise your right hand. Gentlemen, if you find John Charles Rolph not guilty would you please raise your left hand. Gentlemen, it is again a unanimous decision.
On the third count, gentlemen, do you find John Charles Rolph guilty of gross neglect of duty? If you do so please raise your right hand. Gentlemen, do you find John Charles Rolph not guilty of gross neglect of duty? If so please raise your left hand. The decision is again unanimous."

The transcript does not expressly record Mr. Mayne and Mr. Parish as the mover and seconder of the motions concerning the applicant's guilt on the charges of gross misbehaviour and gross neglect of duty but, in my opinion, the correct interpretation to be placed on what took place at the meeting is that Mr. Mayne moved and Mr. Parish seconded each of the three motions concerning the applicant's guilt that were passed unanimously. In any event, even if this were not the true position the meeting by its unanimous expression of opinion waived any irregularity in the manner in which the motions were put before it.

The applicant further submitted that, in resolving that the Branch Committee of Management not accept any future nomination of the applicant for an office within the branch, there had been a failure to perform or observe the requirements of rule 33 which provided for nominations for an office within the branch to be received by the Branch Returning Officer.

In my opinion it is beyond argument that the resolution could be no more than an expression of the will of the meeting. It could not bind the Branch Returning Officer who, had he declined to accept a nomination of the applicant based solely upon the resolution, would have been in breach of his duty and might have been restrained from so acting. It is, however, apparent on the evidence before me that the Branch Returning Officer did not, on the occasion in 1977 when the applicant nominated for the position of member of the Branch Committee of Management, act upon the view that he was precluded by the resolution from accepting such nomination. The nomination was in fact accepted and the applicant was defeated at the ensuing election. No instance has been proved in which an attempt to nominate the applicant for an office within the branch has been frustrated by reference to the above resolution. In my opinion the resolution was one which could have no effect but it has not been shown to have been one that it was outside the power of the meeting to entertain as being contrary to any of the rules of the Union.

For these reasons I conclude that the applicant has failed to establish that there was any relevant failure to perform or observe the rules of the Union, including the implied principles of natural justice to which I have referred.

Had I been of the contrary view, the question would have arisen whether the applicant had satisfied the Court, in terms of sub-section 171G(1), that the validation effected by section 171F upon the expiration of 4 years from the holding of the meeting would do substantial injustice having regard to the interests of the organization, members or creditors of the organization or persons having dealings with the organization.

The legislative scheme enacted in sections 171B, 171F and 171G is to be contrasted with that provided by section 171C. In the case of the latter provision the Court is empowered, where it finds invalidity as defined in section 171A, to make such order as it thinks fit to rectify the invalidity. Before making such an order the Court must satisfy itself that such an order would not do substantial injustice to the organization or to any member or creditor of the organization or to any person having dealings with the organization. On the other hand sections 171B and 171F are designed to validate automatically by operation of the statute acts which would otherwise be invalid or in conflict with the rules of the organization. The Court's power is to preserve the invalidity or conflict with the rules but it may only do so if satisfied that the validation would work substantial injustice having regard to the matters mentioned in sub-section 171G(1).

Guidance as to the meaning of the word "injustice" in this context is to be gained from the following passage in the judgment of Bowen C.J. in Eq. (as he then was) in Re Compaction Systems Pty. Ltd. and the Companies Act (1976) 2 N.S.W.L.R. 477, a case concerning the application of section 366 of the Companies Act, 1961 (N.S.W.). His Honour at p. 493 said:

"In my view, the word 'injustice' in this provision requires the Court to consider any real, and not merely insubstantial or theoretical, prejudice which will be suffered by, for example, a member by the making of an order, and to weigh this in the scales against the prejudice to the company, other members and creditors, if an order be not made. In other words, it is insufficient to show that there may be some prejudice to a member if, on a consideration of the whole matter, the overwhelming weight of justice, as it were, is in favour of making the order: see Re Australian Continental Resources Ltd. (1976) 10 A.C.T.R. 19 at pp. 33, 34 per Blackburn J.; see also Re Castlereagh Securities Ltd. and the Companies Act (1973) 1 N.S.W.L.R. 624."

The applicant has failed to satisfy me that the validation which, on the view that there had been a failure to perform or observe the rules of the Union, would already have been effected by the operation of section 171F has given rise to substantial injustice in the relevant sense or that to allow that state of validation to continue would work substantial injustice in the future. First, the applicant has had ample opportunity during the period of 4 years to which section 171F refers to take whatever legal steps were open to him consequent upon the alleged non-conformity with the rules of the Union. On two occasions, one in September 1976 and the other in May 1978, he prepared and swore affidavits as a basis for such proceedings but in neither instance did he pursue his legal remedies. Secondly, there is no way in which he could now be re-instated as Branch Secretary of the Union and, indeed, he does not seek that relief. Thirdly, it is in the interests of the Union and its members that, having regard to the lapse of time since the events of 1976, there be an end to the disputation concerning the validity of the meeting and the resolutions that were then carried. While it is understandable that the applicant continues to feel a sense of injustice at his treatment during the period in question culminating in the events of 7 August 1976, I am satisfied that it is not in his own best interests, just as it is not in the interests of the Tasmanian Branch of the Union and its members, for the matter to be further pursued after the lapse of so many years.

The application is dismissed. I make no order as to costs.