Squires, Lesley Andree v Pike, Lyne

[1981] FCA 151

Re: LESLEY ANDREE SQUIRES, VIRGINIA McDOWELL and HELEN MONCKTON
And: LYNE PIKE, JOAN WURST, BELLE SUNNER, S. BROAD, A. BURKE, S. BUSSELL, H.
COOKE, B. COOPER, S. HALL, X. HEALY, D. JENKINS, P. RYAN, J. McDONALD, G.
McLAREN, D. RENNISON, J. STREET, J. WATTS, R. WILLIAMS, A. OEDING and THE
AIRLINE HOSTESSES' ASSOCIATION
No. V 7 of 1981
Industrial Organisation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fox J.

CATCHWORDS

Industrial Organisation - Change of Rules - No Transitional Provision Affecting Branch Councils - Validity of Resolutions of Incoming Council - Attempts to Validate - Purported Removal of Some Members of Council - Reference Under Order 29, Rule 2.

Conciliation and Arbitration Act, 1904, ss. 171B, 171C, 171D

Federal Court Rules, O.29, r.2

HEARING

MELBOURNE

#DATE 15:9:1981

ORDER

THE COURT ORDERS THAT the questions raised for decision under order 29, rule 2 be answered as follows:

Question (1) (a)(i) No

(ii) Yes

(iii) No

(iv) No.

Question (2) (a)(i) No

(ii) Yes

(iii) No

(iv) No.

JUDGE1

The Airline Hostesses' Association is an organisation of employees registered under the Conciliation and Arbitration Act, 1904. A new set of rules for the Association was certified by the Deputy Industrial Registrar on 9 October 1980. There was a transitional rule which provided in effect that the Federal Executive in office under the old rules would remain in office until the Federal Council under the new rules was constituted. There was not, however, any similar provisions under the new rules in relation to the Branch Committees in office under the old rules. Rule 6(b) of the new Rules is as follows:

"A branch of the Association shall be autonomous in matters relating to the affairs of the Branch but shall be subject to the control of the Federal Council in matters affecting more than one branch or the interest (sic) of the Association as a whole."

In about March and April 1981 a dispute arose among members of the Association as to whether there was at that time a governing body of the erstwhile Overseas Branch, and if so, what it was and who were members of it.

The applicants Lesley Andree Squires and Virginia McDowell and the individual respondents, except Lyne Pike and A. Oeding, were declared to be elected unopposed to the Overseas Branch on 27 January 1981 by the Returning Officer of the Australian Electoral Office. The applicant Lesley Andree Squires was declared elected as President and the remaining two applicants as councillors. The respondent Joan Ellen Wurst was declared elected as Vice President and the respondent Isabella (Belle) Sunner was declared elected as Secretary. Joan Ellen Wurst was elected unopposed as the branch delegate to the Federal Council. The Branch Council as declared to be elected was constituted by more members than the earlier Overseas Branch Committee and some members were different. The former "Chairman" was not a member of the new "Branch Council". Under the new rules, persons elected were to take office from the date of the next Annual General Meeting (rules 17(d) and 17(n)(iii)). What purported to be a meeting of the Overseas Branch Council held on 25 February 1981 purported to elect Helen Monckton to the Branch Council, under a rule of the new rules enabling vacancies on the Council to be filled. A resolution at the same meeting decided to charge her with "gross misbehaviour". Lyne Pike is accepted as being, and as having been at all material times, the Federal President of the Association. It is unclear how it is claimed, if it is claimed, that A. Oeding is a member of the Overseas Branch Council. She was apparently regarded as the Branch Returning Officer. Later meetings of what purported to be the Branch Council, which took place before any meeting occurred which could be called an Annual General Meeting, purported to remove the applicants from office.

In an endeavour to repair the situation apparently affecting Branches, the Federal President of the Association, purported to act under rule 24(e) of the Rules of the Association. This is in the following terms:

"The Federal President shall:
. . .
(e) in matters of emergency act to safeguard the interests of the Association."

She issued a document dated 21st April 1981, in the following terms:

"TO: ALL BRANCH COUNCILS
FROM: FEDERAL PRESIDENT

In view of the extraordinary circumstances outlined below, the Airline Hostesses' Association is faced with an emergency and therefore I, Lyne Pike, Federal President of the A.H.A., pursuant to the powers conferred on me by reason of Rule 24 (e) of the rules of the A.H.A. hereby assume said powers.
My assumption of powers under the said Rule is imperative to safeguard the interests of the A.H.A. and its members as a whole.

Rule 21(e) of the said rules confers upon the Federal Council of the A.H.A. the power to make a determination wherein the rules themselves are silent.

The rules of the Branch Councils of the A.H.A. are silent as to what body is the managing/governing/controlling body of a Branch, following the date when the former Branch Council goes out of office, that is between the date when each of the former Branch Council members go out of office and the new Branch Council members takes office.

Pursuant to the emergency powers vested in me by virtue of Rule 24 (e) above and in accordance with the general policy of the A.H.A. as evidenced by the rules of the A.H.A. and the "de facto" situation that has arisen following elections and the going out of office of the former members of the Branch Councils, I HEREBY DETERMINE that during the period beginning from when the silence in the rules (referred to above), arose and terminating when the new Branch Council members validly take office in accordance with the rules of the A.H.A., that the Council-Elect of each Branch of the A.H.A. shall have, perform, exercise, and be entitled to have, perform and exercise all the powers, duties and functions of a Branch Council of the A.H.A. as set out in the Rules of the A.H.A. which relate to the powers, duties and functions of a Council of a branch of the A.H.A. to the same extent and in the same manner as if the said Branch Council had in fact taken office at the date on which the silence in the rules arose. In the meantime the A.H.A. is seeking legal advice as to whether or not the Federal Council of the A.H.A. can in this extraordinary situation validly vote in accordance with Rule 21 (e). If this legal advice is to the effect that the Federal Council of the A.H.A. could so vote then within 21 days of the receipt of such advice I will, within the scope of my powers as Federal President take all possible steps necessary to ensure that the Federal Council of the A.H.A. is given the opportunity to vote in relation to the determination set out above be taken.

Lyne Pike
Lyne Pike, Federal President."

On 19 May 1981 the applicants obtained a rule to show cause related to the above purported removals from office, and some specific matters have been abstracted to be dealt with pursuant to Order 29, rule 2 of the Rules of Court. The mattes thus raised are as follows:

"1. (a) Upon the proper construction of the relevant rules of the Airline Hostesses Association as in force at the date when the applicant Squires was purportedly removed from office as Branch President of the Overseas Branch of the said Association namely 3rd March 1981 by purported resolution of Branch Council of the said Branch:

(i) Were the respondents (or sufficient of them to provide a quorum) present and voting for the said purported resolution for the removal from office of the said Squires on 3rd March 1981 entitled to take part in a meeting of the said Branch Council held for such a purpose on that day?

(ii) If the answer to (i) is no, was the said purported resolution of Branch Council of the said Branch for that reason null and void and of no legal effect?

(iii) If answer to (ii) is yes, having regard to the provisions of sub-s.(6) of section 171B of the Conciliation and Arbitration Act, 1904 was the said purported resolution validated by operation of section 171B of the said Act?

(iv) If the answer to (iii) is no, was the said purported resolution of Branch Council validated by the making of a direction in that behalf by the Federal President in exercise of the powers conferred on the holder of that office by sub-rule (e) of rule 24?

2. (a) Upon the proper construction of the relevant rules of the Airline Hostesses' Association as in force at the date when the applicants McDowell & Monckton were purportedly removed from office as members of the Branch Council of the Overseas Branch of the said Association namely 26th March 1981 by purported resolution of Branch Council of the said Branch:

(i) were the respondents (or sufficient of them to provide a quorum) present and voting for the said purported resolution for the removal from office of the said McDowell and the said Monckton on 26th March 1981 entitled to take part in a meeting of the said Branch Council held for such a purpose on that day?

(ii) If the answer to (i) is no, was the said purported resolution of Branch Council of the said Branch for that reason null and void and of no legal effect?

(iii) If the answer to (ii) is yes, having regard to the provisions of sub-s. (6) of section 171B of the Conciliation and Arbitration Act, 1904 was the said purported resolution validated by operation of section 171B of the said Act?

(iv) If the answer to (iii) is no, were the said purported resolutions of Branch Council validated by the making of a direction in that behalf by the Federal President in exercise of the powers conferred on the holder of that office by sub-rule (e) of rule 24?"

Relevant facts have been agreed, or are not in dispute, and to these I have referred, or will refer.

It is conceded on behalf of the respondents that unless the meetings and resolutions of the Branch Council which are referred to have been validated by s.171B of the Act, or rule 24(e) of the Federal rules, that they are, and remain, invalid. The question, then, is as to the effect of these provisions, and I shall take them in turn.

Section 171B

This is a long section, sub-section (1) of which is the part essentially relied on. It is as follows:

"Subject to this section and to section 171G, all acts done in good faith by -

(a) a collective body of an organisation or branch of an organisation or by persons purporting to act as such a collective body; or

(b) a person holding or purporting to hold an office or position in an organisation or branch,

shall be valid notwithstanding any invalidity that may afterwards be discovered in -

(c) the election or appointment of the collective body or any member thereof or of the persons or any of the persons purporting to act as the collective body;

(d) the election or appointment of the person holding or purporting to hold the office or position; or

(e) the making or the alteration of a rule of the organisation or branch."

(s.171G is not relevant in the circumstances which happened).

The section is one of several introduced in 1974, in a New Part, Part IXA, the heading to which is "Validating Provisions for Organizations". Sections 171C and section 171D provide for the Court making validating orders in certain circumstances, but s.171B is self-operating.

The types of defect to be cured are those set out in paragraphs (c), (d) and (e). The defects relate respectively to the body or person which, under the sub-section is required to have acted in good faith. What the sub-section presupposes is an act done, which is afterwards discovered to be invalid, and which, therefore may possibly have been regarded as valid at the time of the act.

In the present case, the absence of a Branch Council was a result of the constitution itself. Probably as the result of an oversight, no provision was made for there to be one at the time in question, namely when the expulsions took place. There was no Branch Council and no one to convene one. On one conceivable view, the former Branch Committee was still in existence, but it is unnecessary to decide on the correctness of this view. What was done proceeded on the basis that there was no Branch Committee or governing body, (other than the Branch Council) and it is sufficient if I accept that approach for present purposes.

Referring directly to the language of paragraph (c), there was no relevant defect in the election or appointment of the Council, and no other paragraph of the sub-section is applicable.

Sub-section (6) of s.171B is as follows:

"Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty upon, a member of an organisation which would not have been valid if this section had not been enacted."

It has been held that "member" includes office-holder (Egan v Harradine (1975) 25 FLR 336). Consistently with that decision, the sub-section should not in my opinion be given a narrow construction. I am therefore of the view that this sub-section would operate to prevent validation, even if sub-section (1) were to be applicable to the circumstances of the case.

Rule 24(e)

The Federal President who acted was a person whom I take to have been elected under the new rules; at all events she was not the person who was Chairman under the previous rules. The Federal Council (under the new rules) consists in part of branch delegates, elected at the time of the branch elections (rules 27, 28(a)). It has been assumed, and I proceed on the basis, that the Federal President had been duly elected, and was holding office at the time the notice or determination was issued.

I have already set out rule 24(e). Reference is made in the determination purporting to be made thereunder to rule 21(e), the full terms of which are as follows:

"Without limiting the generality of the preceding Rule the Federal Council shall have power to:

. . .

(e) determine anything wherein the Rules are silent."

Counsel on both sides have submitted that I should understand the determination as a direct application of rule 24(e), and not as one working through rule 21(e). I do this, although the result would not be different were the other approach followed.

It seems to me that the President was not by her determination doing an "act", nor was it made in an "emergency". She was in fact trying to fill a gap (or "silence") in the Constitution of the Association. She was by a broad and general provision adding to, or qualifying, the rules. She purported to validate actions retrospectively and give them validity prospectively. There was not an emergency in any proper sense; the situation had existed since the new rules had come into force.

I am therefore of the view that the sub-rule could not be relied upon to give effect and validity to the resolutions in question of the Branch Council.

I therefore answer the questions asked as follows:

Question (1) (a)(i) No
(ii) Yes
(iii) No
(iv) No.

Question (2) (a)(i) No
(ii) Yes
(iii) No
(iv) No.

I understand that these answers will dispose of the whole of the matters raised in the proceedings, but the Court will hear argument on that matter, and on the question of costs.