Sonenco (No 77) Pty Ltd v Silvia - [1989] FCA 89

Re: LESLIE PAUL JOHNSON
And: R. BEITSEEN; C. FRIZZIERO; G. GRUNDY; E. HILL; E. JENKINS;
B. JUDGES; J. MAVRODIS; C. MUSCAT; T. RUSSO; D. SHERRY;
S. SKIDMORE; T. SPITERI; A. SPEZZIGU AND J. STEVENS
Nos. VI 2, VI 6 of 1989
FED No. 89
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - performance and observance - office - casual vacancy - whether power to fill by appointment - whether person appointed eligible - whether doctrine of implied resignation by assuming incompatible office applied - whether appointment made - failure to follow correct meeting procedure - whether appointment rescinded by inconsistent resolution at later meeting - whether later meeting validly called - consent of officer procured by deception - all members present and waiving defect - motion ruled out of order - whether can be passed by meeting without resolution dissenting from chairman's ruling - effect of invalid closure of meeting and departure of members - whether revocation of appointment amounted to dismissal from office - whether intention to revoke appointment - whether discretion should be exercised.

Conciliation and Arbitration Act 1904 ss. 133, 171G

Industrial Relations Act 1988 s. 3(g), 196(c), 200, 255, 257

Industrial Relations (Consequential Provisions) Act 1988 s.5

HEARING

MELBOURNE

#DATE 21:3:1989

Counsel for the applicant: Mr. H. Borenstein
Instructing solicitors: J.N. Zigouras & Co.

Counsel for respondents Hill, Jenkins, Judges, Sherry,
Skidmore and Spiteri: Mr. P. Harris
Instructing solicitors: Maurice Blackburn & Co.

Counsel for the respondents Beitseen, Frizziero, Grundy,
Mavrodis, Muscat, Russo, Spezzigu and Stevens:

Mr. Kenzie Q.C. with Mr. Kimber

Instructing solicitors: Gill, Kane and Brophy.

ORDER

No. VI2 of 1989

THE COURT ORDERS THAT the respondents and each of them perform and observe the rules of The Confectionery Workers Union of Australia by:

1. treating the applicant as having been appointed validly to the office of assistant secretary of the Victorian Branch of The Confectionery Workers Union of Australia by resolution of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia on 8th November 1988;

2. treating as null and void and of no effect the following resolutions, purportedly passed by a meeting of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia on 25th November 1988:

(a) "That the Secretary be instructed to contact the Industrial Registrar to arrange an election of members by the Australian Electoral Office for the position of Assistant Secretary upon the expiration of the period of notice of Eileen Jenkins";

(b) "That the Secretary have power to call a special meeting of the Committee of Management at a time and place to be determined by the Secretary".

No. VI 6 of 1989

THE COURT ORDERS THAT the respondents and each of them perform and observe the rules of The Confectionery Workers Union of Australia by treating as null and void the purported resolution of the committee of management…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] FCA 89
Decision Date: 21 MARCH 1989

CaseChat Overview and Summary

Sonenco (No 77) Pty Ltd sought relief against The Confectionery Workers Union of Australia, arguing that the union had not correctly appointed an assistant secretary. The matter was heard by the Australian Industrial Relations Commission and later appealed to the Federal Court of Australia. The core issue before the court was whether the union had properly followed its own rules in appointing an assistant secretary and whether subsequent actions by the union invalidated the appointment. The court had to determine if the union's rules allowed for the appointment to be made by the committee of management, if the appointed individual was eligible, and whether procedural irregularities during the meetings affected the validity of the appointment.

The court found that the union's rules did permit the committee of management to appoint an assistant secretary in cases of casual vacancies. It was also established that the appointed individual was eligible for the role. The court considered that while there were procedural flaws in the meetings, such as the absence of proper notice and the presence of an ineligible member, these did not invalidate the appointment. The court held that the later resolution intended to rescind the appointment was invalid due to the absence of proper meeting procedures, and thus, the initial appointment stood. The court concluded that the subsequent resolution to hold an election did not negate the initial valid appointment.

The Federal Court ruled that the union must recognise the initial appointment as valid and disregard subsequent resolutions that attempted to invalidate it. The court nullified the resolutions passed on 25 November 1988 that sought to arrange an election and grant the secretary the power to call a special meeting. It also declared the resolution from 5 July 1988, appointing Romina Beitseen, null and void. However, the court clarified that Romina Beitseen's participation in meetings prior to 25 November 1988 would not render those meetings invalid. The court's final orders mandated the union to treat the initial appointment as valid and to disregard the subsequent invalid resolutions.

Orders

Orders of the court

No. VI2 of 1989

THE COURT ORDERS THAT the respondents and each of them perform and observe the rules of The Confectionery Workers Union of Australia by:

1. treating the applicant as having been appointed validly to the office of assistant secretary of the Victorian Branch of The Confectionery Workers Union of Australia by resolution of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia on 8th November 1988;

2. treating as null and void and of no effect the following resolutions, purportedly passed by a meeting of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia on 25th November 1988:

(a) "That the Secretary be instructed to contact the Industrial Registrar to arrange an election of members by the Australian Electoral Office for the position of Assistant Secretary upon the expiration of the period of notice of Eileen Jenkins";

(b) "That the Secretary have power to call a special meeting of the Committee of Management at a time and place to be determined by the Secretary".

No. VI 6 of 1989

THE COURT ORDERS THAT the respondents and each of them perform and observe the rules of The Confectionery Workers Union of Australia by treating as null and void the purported resolution of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia on 5th July 1988:

"That Romina Beitseen be appointed as a member of the committee of management until such time of an election",

provided that no act of the committee of management of the Victorian Branch of The Confectionery Workers Union of Australia at any of its meetings up to and including its meeting on 25th November 1988 shall be treated as null and void merely by reason of the fact that Romina Beitseen attended, participated in and voted at any such meeting.

NOTE: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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