Somaghi v Minister for Immigration, Local Government and Ethnic Affairs

[1991] FCA 389

IN THE FEDERAL COURT	1
)
OF AUSTrnIA	1 No. Q1 17 of 1991
QUEENSLAND DISTRICT REGISTRY)	)
1
INDUSTRIAL DIVISION	1
BETWEEN:

WALTER WiJXOLPI RUTHERFORD

Applicant

- and -

GEOFFREY PHILLIP BRAHIM AND ORS

Respondents

JUDGE :	Heerey J.
PLACE :	Brisbane
DATE :	09 JUL1991

- 24 June 1991 F E D E M COURT OF

AUSTRALIA PRINCIPAL REOISTRY

EX TEMPORE ReASONS FOR JUDGMENT

proceeded to hear the charges, notwithstanding what were said	to be defects in the laying of the charges, and
notwithstanding the fact that a general meeting of the branch had directed the branch committee of management not to hear the charges, and that the requisite number of members had signed a requisition for a plebiscite on the issue.
It is said that those decisions were ignored and the branch committee of management then proceeded to hear the charges. The hearing is the subject of strong criticism. It was described by Mr Hall as amounting to a "bear pit" mainly concerned with invective, and it did not amount, Mr Hall said, to a bond fide hearing.

Mr Murdoch of counsel for the respondents seeks an adjournment

of the trial of this proceeding in the following circumstances. In this proceeding Mr Walter Malcolm Rutherford attacks his removal as Secretary of the Queensland branch of the National Union of Storeworkers, Packers, Rubber and Allied Workers.

In the course of opening his case for the applicant, m Hall of counsel outlined the basis on which this attack is made. It appears that certain charges were brought against the applicant and the branch committee of management of the union

.

Subsequently the applicant appealed to the national executive of the meeting and that body, on Monday of last week, brought down a flnding which in essence cleared the applicant of some of the charges, but upheld others. Mr Hall makes complaint about the conduct of that hearing by the national executive. It is said that the proceeding was conducted as a rehearing, and ignored the attacks that, as I have mentioned, were made on proceedings conducted by the branch committee of management.

Secondly, it was said that the hearing by the national executive was oppressive in that it extended over four days

with very lengthy sitting hours, commencing on most days at	8:30am in the morning and extending to 10 o'clock at night.
In essence, the case put for the applicant is that if the respondents seek to justify the removal by pointing to the decision of the national executive as curing any defects in the proceedings before the branch committee of management, then it is said, for the reasons referred to, the national executive decision itself was invalid. These issues relating to the validity of the national executive meeting have emerged at a late stage, which of course is explained to a large degree by the fact that the meeting did not conclude until Monday of last week.
It appears that a notice of motion was filed at 1:20pm last Friday. This merely stated that the respondents would move for an order that the applicant's application be dismissed. There were apparently late on Friday afternoon some draft aff idavits served on the respondents' solicitors. I have not been referred to the actual terms of these, but according to Mr Murdoch they contained "mild criticism" of the proceedings in the national executive, and not as strong as that which emerged today.
M r Murdoch, in support of his application for an adjournment,
says that his clients will not have adequate opportunity to meet the case that is made in respect of the complaints concerning the national executive meeting. I think I must accede to Mr Murdoch's application. One must proceed from the basis that, in appropriate circumstances, a decision by a domestic appellate tribunal within an organisation may, and I underline may, cure defects whether by breach of the rules of natural justice or otherwise which have taken place. Therefore, plainly, the validity or otherwise of the decision of the national executive meeting is going to be an important and perhaps critical issue in these proceedings.
It is also clear that the attack on the national executive
meeting will involve some factual questions. The bald statement of the times taken for the hearings does appear a
little surprising, but without a fair and proper assessment of evidence from both sides one could not make any proper finding as to whether or not the conduct of the hearing amounted to oppression, or whether it was defective for some other reason. The members of the national executive who were concerned are scattered all over Australia, and obviously some time would be needed for them to mount an adequate defence.
It does not seem to me appropriate to allow this matter to proceed on the basis that if the attack on the decision of the branch committee of management fails, it will then not be necessary to consider the merits of the national executive meeting, particularly having regard to the fact that there are only three days set aside for this proceeding anyway. I think it would be unfair to all concerned for the matter to proceed on this, as it were, tentative and conditional basis.
I should add that it was Mr Hinkley of counsel who appears for the union itself who initially raised the difficulties caused by the involvement of the national executive meeting as an issue in these proceedings. Mr Hinkley complained that this involved a last minute attack on the rules of the organisation for-which he appeared, and also he did not have instructions to appear for the individuals concerned in the decision.
The matters that Mr Hinkley raised do have some force, but at the stage that we had reached, Mr Hinkley himself made no application for an adjournment of the proceeding. It was left to Mr Murdoch to make that application and I uphold his application for the reasons I have mentioned.
That being so, it appears that regrettably the matter cannot proceed, but I will invite counsel to suggest any appropriate directions that can be made to ensure a comprehensive resolution of these issues as soon as possible. If it's
matters to be discussed and also perhaps counsel and those convenient, I might leave the bench again to enable those instructing them can make some contact with the registry.
So I should imagine that should take about 10 or 15 minutes, but I will be available when counsel are ready to proceed. Thank you.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Counsel for the Applicant:'	Mr D Hall with Miss J Dick
Solicitors for the Applicant:	Poteri Woods
Counsel for the Respondents:	Mr J Murdoch with Mr D O'Connor
Solicitors for the Respondents:	Sciacca and Associates
Counsel for the Intervener:	Mr R Hinkley
Solicitors for the Intervener:	Ryan Carlisle Thomas