Spanswick, Robert Grant v Gorman, Michael Joseph

IN THE FEDERAL COURT OF AUSTRALIA )

INDUSTRIAL DIVISION	)	NO. 30 of 1978
1

NEW SOUTH WALES DISTRICT REGISTRY 1

IN THE MATTER of the Conciliation and

Arbltratlon ~ c t ,

1904

AND IN THE MATTER of an application

pursuant to Section 141 of the said Act

BETWEEN ROBERT GRANT SPANSWICIZ

Claimant

AND	MICHAEL JOSEPH GOFWAN, HAROLD TAYLOR, CECIL CLARKE, BARRY BECIZERLEY, PETER PHILLIP BENNETT ALBERT NIIIOT, GERALD WEIGHT, ROBERT MOORE and D. KENNEDY

Respondents

ORDER

JUDGE MMING ORDER:

J.B. SWEENEY J.

DATE OF ORDER:

11 ~ u l y ,

1979

WHERE MADE:

Sydney

THE COURT ORDERS THAT:

The matter be adjourned to a date to be fixed.

IN THE FEDERAL COURT OF AUSTRALIA )

)

INDUSTRIAL DIVISION	)	NO. 31 of 1978
)
NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the conciliation and

Arbitration Act, 1904

AND IN TIlE MATTER of an application pursuant to Sectlon 140 of the said Act

BETWEEN ROBERT GRANT SPANSWICI<

Claimant

AND THE CUSTOMS OFFICERS'

ASSOCIATION OF AUSTRALIA

(FOURTH DIVISION)

Respondent

ORDER

JUDGE MAKING ORDER: J.B. SWEENEY J.

DATE OF ORDER:	11 July, 1979
WHERE MADE:	sydney

THE COURT ORDERS THAT:

The matter be adjourned to a date to be fixed.

IN THE FEDERAL COURT OF AUSTRALLA )

)

INDUSTRIAL DIVISION	)	NO. 7 of 1979
)
NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the conci lia t ion and

~rb~tration

~ c t ,

1904

AND IN THE MATTER of an appllcation by

THE CUSTOMS OFFICERS ASSOCIATION OF

AUSTRALIA (FOURTH DIVISION) pursuant to

Section 17112 of the sald Act

ORDER

JUDGE MAKING ORDER: J.B. SWEENEY J.

DATE OF ORDER:	11 JU~Y,	1979
WHERE MADE:	Sydney

THE COURT ORDERS THAT:

The matter be adlourned to a date to be flxed

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION

NEW SOUTH WALES DISTRICT REGISTRY

IN THE MATTER of the Concillatlon and

Arbitration Act, 1904

AND IN THE MATTER of an application pursuant to Section 141 of the said Act

BETWEEN ROBERT GRANT SPANSWICK

claimant

Respondents

AND IN THE MATTER of an application

pursuant to sectlon 140 of the said Act

BETWEEN ROBERT GRANT SPANSWICI<

Claimant

AND

THE CUSTOMS OFFICERS' ASSOCIATIO&

OF AUSTRALIA (FOURTH DIVISION)

Respondent

(NO. 31 of 1978)

km IN THE MATTER of an application by

THE CUSTOMS OFFICERS ASSOCIATION OF

AUSTRALIA (FOURTH DIVISION) pursuant to

Section 171C of the sald Act

J.B. SWEENEY J.

REASONS FOR JUDGMENT

These matters commenced with applications by Mr. Robert spanswick (the claimant) who is a member of the Customs

Officers ~ssociation

of Australia (Fourth Division)(the

organization) and Secretary of the New South Wales Branch

of the organization.

In these applications, No. 30 of 1978 sought orders under s.141 of the Conciliation and Arbitration Act, 1904 (the Act), while in the second, No. 31 of 1978, the Claimant

sought orders under s.140 of the Act.

The flrst application related to the validity of certain meetings of bodies within the organization, while the second sought declarations that rules of the organization were in contravention of s.140(1) of the ~ct.

When the matters came on for hearing there had been flled an

application by the organization pursuant to s.171C of the ~ct.

They were all listed for hearlng on 11 May, 1979.

It was

then common ground that many of the rules of the organization

contravened the Act and it appears that no real attempt had

been made in the past to amend the rules to comply with various

and changing requlrements of the Act and regulations.

When the s.171C application came before the court an order was made that the appllcatlon and supporting documents be served on each person holding or purporting to hold office as branch secretary with a request that such person take steps to bring

the application to the notice of members.

In addltion an order

was made for advertisement of the fact of the application in

The ~ustralian

newspaper on Saturday, 31 March, 1979 and

Saturday, 7 April, 1979.

At the same time it was agreed

between the parties that the Respondents should circulate

to each member or purported member of the federal executive

and to each branch secretary a draft revision of the rules

of the assoclation which had been made by the association's

legal advisers and that he should thereafter convene a

meeting of such members to conslder among other things the

draft alterations of the rules of the association.

~ h l s meeting was held and there emerged from it a draft set

of rules and in substance the court was then asked in the

s.171~ application to valldate the making of such rules and

to stand over the other two applications.

Prior to the

meeting referred to, the New South Wales branch of the

organization had itself prepared a draft set of rules and

these dlffered somewhat from the draft adopted by the meeting

of the purported members of the federal executive.

When the matter came back for hearing, Mr. Macken appeared sought and was granted leave to intervene.

for the organization and all the Respondents with the exception

of Mr. Bennett, a member of the New South Wales branch.

~t was agreed that the s.171C application should be dealt

with first and the other two matters adjourned. By this time

the parties had further considered the two draft sets of rules

and had reached agreement on a number of polnts.

~t was not disputed that there had been an irregularity in

the management of the affairs of the organization. The

evidence showed that during 1978 the Industrial Registrar

had drawn the attention of the organization and Mr. Gorman

to the condition of its rules, many of which clearly contra-

vened s.140. The organization or some of its officers had then sought legal assistance and retained Mr. Gaynor of

Renwick and Gaynor to draft a new set of rules.

This was

interrupted by Mr. Gaynor's unfortunate death and the task

was subsequently continued and completed by Mr. Macken.

It was beyond doubt that lrregularlties had occurred in that a number of the rules were lnvalid and that invalidities had occurred by reason of elections being held and activities

undertaken under invalid rules. Neither the Claimant nor the occurred. Although steps had been taken in accordance with directions to ensure wide publicity to the application under s.171C there were no appearances other than those I have indicated.

The organization sought orders in substance validating the set of rules which had been adopted by the purported meeting of the federal executive and subsequently amended in discus-

sions with the claimant and Mr. Bennett.

The Claimant and

Mr. Bennett while agreeing that orders should be made under

s.l71C, opposed the validation of the whole of those rules

but were agreeable to an order which validated them wlth

the exception of certain rules which they claim could cause

substantial injustice to members of the New South Wales branch.

Ultimately the following exchange appeared:

"Mr. Macken:

... but I think the substance of

both sides, and I think I may presume to speak

for my learned friend on this, is that we believe

that the matter should stand or fall according to

the rule matter, on the question of the rules

themselves.

Mr. Kenzie: Yes, I agree with that your Honour ...

His Honour:

That would mean I would be asked to

deal with 171 baslng my decision on my view as to

the propriety of the rule.

Mr. Kenzie: On my understanding, your Honour, that is so.

His Honour: IS that your view?

Mr. Macken:

I accept that position your Honour, yes.

H ~ S

Honour: It is not a course I like very much.

I have not given it enough thought.

I am not very

happy with the thought of the court virtually making

rules.

Mr. Macken: Perhaps in agreeing to what my learned friend said then I was understanding him in a sense differently to what he intended, but as I understand

it the position is that the body itself had validly

or invalidly adopted a set of rules, and the substantive

oblection to that is that they should not be validated

by your Honour, in part at least, because in part at

least, to do so would bring into being rules which

could cause substantial injustice to the organization

or any party. we say that the rules, if validated,

would not have that effect, and what I thought I was

agreeing to was that I would be perfectly happy to

have that issue decided by comparing the rules as

adopted wlth the rules as proffered by those who make

that objection by way of ease in demonstrating that

the rules would not have the effect that my learned

friend's clients fear."

1t seems clear to me from a perusal of the present registered

rules of the organization and from what has been said that

irregularities have occurred and I think they are incurable

except by an order under s.171~ or like sections, and while deciding precisely what the rules should be and continue to regard that as primarily a task for an organization, I think in this case I should adopt the course proposed.

The hearing then continued and the two sets of rules were placed before me. I have considered both the submissions by Mr. Macken and those by Mr. Itenzie and Mr. 13ennett as to

the particular rules to which objection is taken.

The first rule in question is r.Zl(c) which gives the federal conference power to "delegate to the federal executlve such of its powers as it may from time to time think fit except the power to amend or rescind rules". Exception is taken to

this power to delegate by the New South Wales branch.

think in all the circumstances that the federal conference should have power to ensure that some of its functions may be exercised by the federal executlve but it may well be

that at this stage of the rehabilitation of the organization federal conference to allocate such specific duties to the federal executive as "it may from time to time think fit".

this should be limited and it would I think be appropriate

at this stage for the provision in the proposed New South

This New South Wales provision has been taken from r.38(a) of the New South Wales proposal.

r.28(c) and (d) conference. Under r.26 a delegate may be given directions by the branch council. The real objection taken to the rule is that there is no obligation on the proxy to act in

accordance with directions given him.	I think there should
be added to r.28(c) the following:

"but in exercising a vote he shall act in accordance

with any direction given him by the person he repre-

sents or glven to such person or to him by the branch

council pursuant to r.26."

r.29 ship of the organlzation and the principal objectlon made appears to be that the interests of the smaller branches are likely to be prejudiced by virtue of the fact that the federal officers are more likely to come from the larger branches. This no doubt is true but no smaller branch appeared to make the oblectlon. I think there are distinct advantages in the national officers playlng an active role in the conference

The substantial question ralsed here is whether officers of

the organlzation should be entitled to vote at the federal

conference. The federal conference conslsts of ten delegates

appointed by branches and the four officers. The branch

delegates vary in approximate relationship to their member-

ship but no objectlon is taken to the numbers of delegates.

and do not think that the provision for them to have a vote

at the conference would work any injustice to members of the

New South Wales branch.

r.35(a) and (c) federal conference and federal executive when so determined

in the manner prescribed in r.35(a).

The postal ballot is

to be by letter or telegram sent on not less than seven days

notice to each person entitled to participate.

The oblec-

tion taken by the Claimant is that the method provided does on which a decision of either the executive or conference may be required and that to hold a meeting in such circum- stances might well impose an undue financial burden on the organization. A further suggestion was made by Mr. Bennett that if it were necessary to take such a decision of the federal executive it should be done by telephone hookup. The cost of this would be considerable but it would be a

not allow for an exchange of views between the delegates and

the Claimant has submitted, as approved by the New South

Wales branch, a very detailed mode of taking such a ballot.

method by whlch views could be exchanged.

In my view the

solution lies in a combination of the methods.

If the matter

to be dealt with was one which required a decision within

ten days of the matter coming to the federal office then in

my opinion a telephone hookup should be arranged by the

General Secretary and after discussion votes recorsed.

If however it was a matter which did not requlre an answer within that period then r.35(c) should provide for a notice of the taking of the ballot and the question to be submitted to be given ten days prior to the closing of the ballot and provision should be made for any person entitled to vote ln the ballot to forward to the General Secretary any material relevant to that question together with sufficiellt coples for

distribution to the other persons entitled to vote.

should then be the duty of the General Secretary to distribute

that material to all persons entitled to vote.

After the

expiry of ten days from the notice of the taklng of the ballot

the ballot should be taken by telegram. I£ a rule j.n such

form is submitted to me I will regard it as a rule proper to

be validated in these circumstances.

rr.38(a) and 39

These rules deal with the powers and composition of the

federal executive. The rules as submitted by the organization

provlde for a federal executive consisting of the four officers

and one representative of each branch while the other set of

rules seeks a federal executive consisting only of the four

officers. The first set of rules provides for dutles of the

federal executive which are the types of duties normally found in union rules. Under the Act and regulations it is necessary

that there should be a committee of management.

It has been

described as the organ of the organization whose functions are

characteristically those of management, that is to say, of

carrying on the affairs and business of the association.

acts on behalf of the association in matters pertaining to the administration, negotiation and transaction of its day

to day busmess.

I think the federal executive should

properly consist of the officers and one delegate from each

branch and with one exception I think the powers given to it

in the rules of the organization are appropriate. However

in view of the allegations and counter-allegations made but

without in any way expressing a view as to their accuracy, not have power to delegate generally to the federal executive and in lieu of r.38(5) there should in my view appear the following:

"carry out any specific duty allocated to it by

federal conference"

I have had regard to r.38~(3) of the draft submitted by the

Claimant in so holding.

r. 44 those made in r.28.

For the reasons indicated in dealing with r.28(c) and (d)

r.22(e) does not wlth sufficient precision impose a duty to report to the branches on the activities of the federal executive and

federal conference and federal officers.

I think in all the

circumstances it is desirable that such a duty should exist

and it should be imposed upon the General Secretary.

I therefore think that r.59(q) should be re-numbered 59(r)

and that 59(q) should read:

"Within slx weeks after any meeting of the federal

executive or federal conference forward minutes

of such meetings to each branch and to each member

of the executive or conference as the case may be.

Within one week after the taking of a postal or telephone ballot of the federal conference or federal executive he shall advise the branches of such ballot and of the result thereof.

Each three months he shall forward to each branch

a report of his activities and any other activities

of the off lcers.

During the hearing there was discussion on this rule and it was agreed that it should not be validated in this form.

A rule in or to the following effect should be adopted:

"Each officer and delegate to the federal conference or federal executive shall upon his election advise the General Secretary of his address and thereafter shall advise him of any change in address. The

posting of or service of any notlce at such address

shall be deemed sufficient notice or service."

It will be noted that in some cases I have left the organiza- tion to draft the appropriate rule, indicating what I think

it should contain.

I want to emphasise once again that in

my vlew it is not desirable for the Court to draft rules for

an organization. This is peculiarly the task of the organiza-

tion itself. Where I have departed from this it is because

the course has been agreed to.

~f rules in the form I have indicated are submitted to me

I wlll make an order as asked validating the making of

them and the other rules in Exhibit B annexed to Mr. Gorman's

affidavit sworn on 28 March, 1979.

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[1979] FCA 69

11 Jul 1979