Stapleton, Damien v Field

[1984] FCA 274

Re: DAMIEN STAPLETON
And: FIELD & ORS.
No. I25 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA OF NEW SOUTH WALES

Lockhart J.

CATCHWORDS

Industrial Law - application for declaration that certain persons hold office until forthcoming union election - whether applicant "holding over" as relevant officer - validity of previous election - construction of Union rules - discretion of Court to grant relief sought - whether the application interlocutory in nature or a final hearing.

Conciliation and Arbitration Act, ss. 141, 165

HEARING

SYDNEY

#DATE 27:7:1984

ORDER

1. The rule nisi be discharged.

JUDGE1

As I have reached a firm view about the result of this matter I propose to give judgment now. I have been assisted in taking this course by the full submissions of counsel.

1. The applicant, Damien Stapleton, seeks an order pursuant to s. 141 of the Conciliation and Arbitration Act 1904 ("the Act") directing the respondents to treat him as Secretary of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association ("the Association") until the declaration of the next election for branch officers. An order is also sought to restrain the respondents from appointing anybody other than the applicant as Secretary in the meantime. The respondents are the Association and certain members and officers of the Association.

2. This application is but one round in a long and hard fought battle between the parties for control of the New South Wales Branch of the Association ("the Branch"). I suspect it may not be the last. The litigation relates to the 1982 election for officers of the Branch held as long ago as February 1982. The applicant became Secretary of the Branch in 1975, and in 1976 he became the Federal Secretary of the Association. He continued to hold the office of Branch Secretary until about March 1982. He still holds the office of Federal Secretary.

3. The applicant nominated for the 1982 branch elections for the position of Branch Secretary/Treasurer. A Mr. Simon Jenkins also nominated for the position. There were no other candidates. On about 24 February 1982 the Returning Officer declared the result of the election for Branch Secretary as follows: Mr. Jenkins - 819 votes; the applicant - 808. A total of 1648 members had apparently voted in the election, with some 21 votes declared informal.

4. Mr. Jenkins, who is the fourth respondent, was declared elected to the position of Branch Secretary. In March 1982 the applicant lodged an application for an inquiry into the election pursuant to s. 159 of the Act. The matter was duly referred to the Court. The application was heard by Evatt J. during 1982 and 1983 over many days ranging from 17 May 1982 to 30 September 1983.

5. On 11 March 1982 a Judge of this Court made ex parte orders preserving in office those persons who had held office before the 1982 Branch elections. Those orders remained in force until 4.15 p.m. on 16 March 1982. The applicant sought to have those orders continued on 16 and 17 March 1982; but Evatt J., who heard the application to continue the orders, declined to continue them.

6. During the course of the inquiry conducted by Evatt J. the applicant alleged that various irregularities had occurred in the conduct of the election for Branch officers. I need not refer to all of them; but they included allegations that some persons had been crossed off the roll of voters and consequently not sent ballot papers when, in fact, they were financial members; that some persons resident in New South Wales were not sent ballot papers, whereas other persons who were resident in a State other than New South Wales were sent ballot papers; that ballot papers were sent to some persons at their places of work and not their residential addresses; that certain persons were sent ballot papers at a time insufficient to allow those papers to be returned by post; and that certain of the successful candidates were ineligible to be elected pursuant to the rules of the Association.

7. The matter was heard by Evatt J. His Honour gave judgment on 31 August 1983. I need not stay to set out the findings of his Honour as they are reported in (1983) 50 A.L.R. 293. His Honour held that, having regard to the objects of the Act, certain of the conditions and restrictions which some rules of the Association imposed were unreasonable and unjust, in contravention of para. 140(1)(c) of the Act and therefore invalid. His Honour held that in all the circumstances a fresh election should be held.

8. Following the publication of his Honour's reasons for judgment, the matter was relisted for argument principally with respect to the appropriate orders to be made pursuant to s. 165 of the Act; and for that purpose further hearings took place on 16, 23, 29 and 30 September 1983. During the course of those hearings, and possibly earlier, counsel then appearing for the applicant submitted that, upon the proper construction of the Association's rules, the applicant was "holding over" as Branch Secretary as a result of his election to that office in the Branch election of 1978, which was the election immediately preceding the one in dispute, elections in the Association being triennial.

9. On 30 September 1983 Evatt J. made orders which it is important, so far as relevant, to set out in full. They appear at pages 320 and 321 of the report to which I have referred in the following terms:-
   
   

"(1) The court determines that irregularities have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association, hereinafter called the ATAEA, being an election for the offices of President, Vice-President, Secretary/Treasurer, Assistant Secretary and 12 executive members.

(2) The court orders that a new election be held pursuant to s. 165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:-

(a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with r42A(b)(ii) of the rules of the organization.

(b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of r42A(c) of the rules of the organization.

(c) Nominations to open on 29 June 1984.

(d) Nominations to close on 20 July 1984.

(e) The ballot where necessary to commence on 10 August 1984.

(f) The ballot to conclude on 31 August 1984.

(3) The court directs that the returning officer conducts the said election on the basis that:-

(i) That the words "and for a period of one calendar month thereafter" in certified r9(a) of the rules of the organization are deleted.

(ii) That the word "continuously" in r47(c) of the rules of the organization is omitted.

(iii) That all the words after the word "nomination" where first appearing in certified r47(c) of the rules of the organization are deleted.

(4) The court orders that until the new election is concluded each of the persons elected to the respective offices of President, Vice-President, Secretary, Treasurer, Assistant Secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 Februarry 1982 and each shall be a member of and shall be deemed for all purposes to have been a member of the executive of the New South Wales Branch of the organization since that date.

(5) The court orders that the costs of the following parties, namely, Mr. Stapleton, Mr. Jenkins, Mr. Taylor, Mr. Ford and Mr. Nelson be paid by the ATAEA.

(6) Liberty is granted to any party to apply on seven days' notice to the court and to the other parties to the proceedings.

(7) The exhibits in the matter may be handed out."

1. It is obvious that, in fixing those times for the election and the various antecedent steps, his Honour intended to synchronise the election with other elections to be held within the Association (see p. 311). His Honour said that he would publish his reasons for making those orders in due course.

2. Pursuant to the orders of Evatt J., Peter Wallace McGill held the office of Assistant Secretary of the Branch until 22 May 1984. On that day, at a meeting of the Executive of the Branch, the fourth-named respondent (Mr. Simon Jenkins) tendered a copy of a letter of his resignation as Branch Secretary. The letter was received by the Executive of the Branch which then resolved to accept the resignation with effect from 5.00 p.m. Thursday 24 May 1984. The Executive passed a resolution that Mr. McGill be appointed to the position of New South Wales Branch Secretary from 5.00 p.m. 24 May 1984.

3. On 30 May 1984 the applicant filed a notice of motion in the same matter as the election inquiry (number 9A of 1982) seeking an order declaring that he holds the office of Secretary of the Branch until the conclusion of the new election which Evatt J. had ordered. That motion came before Evatt J. on 8 June 1984, when his Honour took the view that the court was functus officio with respect to the matter, that it was improperly before the court and could not therefore proceed.

4. Although his Honour had intended to deliver reasons for judgment for the orders given on 30 September 1983, subsequently the Association sought, and obtained from the High Court of Australia a rule nisi calling upon Evatt J. to show cause why the order for costs should not be discharged (i.e. the order numbered 5). I was informed by counsel that the High Court has not yet heard the application for the rule nisi to be made absolute. Evatt J. took the view in June 1984 that, as this step had been taken by the Association, the High Court order nisi operated as a stay in relation to all relevant matters so that he could not proceed to publish his reasons for judgment. Accordingly, I do not have the benefit of those reasons today.

5. On 5 July 1984 a Judge of this Court made an order that the respondents show cause why the orders which I mentioned at the beginning of my judgment should not be made. The matter was heard by me yesterday and today.

6. Counsel for the applicant submitted that the Association's rules either expressly provide or contemplate that incumbent officers of the Association should continue to hold office beyond the period of three years until the result of the next election is declared. It was asserted that the 1982 Branch election was null and void and that no valid declaration of the result of that election has been made. Counsel submitted that, upon the proper construction and operation of the Association's rules, in particular sub-rule 18(a), the principle of "holding over" applied following the resignation of Mr. Jenkins as Branch Secretary on 24 May 1984, so that the applicant's tenure of that office revived and will remain until the declaration of the new election ordered by Evatt J. Counsel for the respondents submitted that the rules of the Association do not bear this construction. He submitted also that those same submissions were put to Evatt J. by counsel for the applicant during the hearing to which I have already referred on at least one occasion and, notwithstanding those submissions, his Honour made the orders of 30 September, including order 4. Submissions were also put to me on behalf of both parties relating to the exercise of the Court's discretion, if any, in this matter.

7. In my opinion the starting-point for this Court's consideration of the matter presently before it must be the orders made by Evatt J. on 30 September 1983. Those orders followed a lengthy inquiry conducted by his Honour into the 1982 election for offices of the Branch of the Association. Many irregularities were alleged. A great deal of evidence was adduced and lengthy submissions were made over a long period of time. His Honour decided that there were certain deficiencies in the rules which rendered the 1982 election 1982 void. By his orders of 30 September his Honour did not in terms order or declare that the election was void; but it is obvious from a reading of the orders as a whole, and from his Honour's reasons for judgment, that he had formed the view that the election was void, but did not think it necessary to pronounce a formal order to the effect. This is common ground between the parties.

8. His Honour then ordered that a new election must be held pursuant to s. 165A of the Act for all relevant offices in the Branch. He gave detailed and carefully considered directions to that end. Those directions envisaged the poll concluding on 31 August next. His Honour thus recognised that a little under 12 months would elapse between the date of his orders and the declaration of the poll. The orders, especially order number 4, were obviously designed to ensure that in the meantime the affairs of the Branch would be conducted by officers of the Branch and members of its Executive free from suggestions of irregularity surrounding their appointment. The orders reflect a plain intent on his Honour's part to ensure stability in the management of the Branch until its officers are elected following the conclusion of the new elections held by order of the Court. The orders manifest an intent that the Branch's affairs be conducted free of the internecine strife that has hitherto beset it with its attendant dislocation, uncertainty and expense. Order number 4 operated to appoint the President, Vice-President, Secretary, Treasury, Assistant Secretary and 12 members of the Executive of the Branch for all purposes and to deem them to have held their respective offices since 24 February 1982.

9. It was submitted by counsel for the applicant that Evatt J.'s orders do not necessarily indicate that his Honour rejected the applicant's submission then made to him (which was essentially the same submission made to me) namely, that the applicant "held over" as Branch Secretary by operation of the Association's rules. There is no necessary inconsistency between his Honour's orders and the acceptance of the construction of the rules of the Association contended for by counsel for the applicant; but the source of his Honour's order number 4 is s. 165 of the Act. If his Honour had accepted the construction of the rules contended for by the applicant he must, it seems to me, necessarily have treated s. 165 as authorising the Court to override the rules in that respect. I do not, of course, for one moment accept the construction of the rules contended for by counsel for the applicant. But his Honour's order is necessarily inconsistent with any right of the applicant to continue in office as Branch Secretary whether by "holding over" under the rules or otherwise. The two cannot operate together.

10. It was submitted by counsel for the applicant that the only source of the power to fill the vacancy caused by Mr. Jenkin's resignation as Branch Secretary is sub-rule 20(b); and it assumes that the appointment of the Secretary is made under the rules and not by order of the Court. I reject this submission. To give his Honour's orders of September 1983, especially order number 4, full force and effect necessarily requires, in my opinion, that the officers and members of the Executive appointed by his Honour until the declaration of the poll in August this year be given the same powers and authorities as if they had been elected under the rules, including the powers of filling extraordinary vacancies under sub-rule 20(b), and of otherwise managing the affairs of the Association. His Honour's order was, as I read it, intended to have teeth and not to be a mere paper tiger.

11. There was some challenge made by counsel for the applicant in argument before me as to his Honour's power to make order 4 or any like order. In my opinion I do not have to consider that argument because the starting point for any consideration of the application presently before the Court must be Evatt J.'s orders of 30 September. No appeal was lodged from them. They bind the Association and must be treated by this Court as valid orders. In any event, as at present advised, I would regard para. 165(3)(d) of the Act as a sufficient source of authority for the making of the relevant orders on 30 September. To my mind they answer the description of orders incidental or supplementary to or consequential upon other orders made under the section, including orders of the Court declaring elections to be void and orders directing the Industrial Registrar to make arrangements for other elections which the Court orders to be held. However, I do not have to express a final view on this and do not do so.

12. The Executive of the Branch accepted the resignation of Mr. Jenkins as Secretary and appointed Mr. McGill in his place. The rules of the Association authorised that appointment and no challenge is made to it by the applicant except for the "holding over" argument, to which I have referred. In my view it follows that the application must fail.

13. Evidence has been led by the parties, however, on questions relating to the discretion of this Court to grant the relief sought. The applicant's case is that he is more knowledgeable and experienced than Mr. McGill in the affairs of the Association and in the various industries from which it draws its members.

14. The respondents assert that the applicant mismanaged the Association's affairs in various respects during his tenure as Branch Secretary. There are allegations and counter allegations made which I need not mention except to say that I have considered them all. Each party denies most of the other party's allegations. In the end, I am not satisfied that the status quo should be altered. Until the poll is declared it is better that the management of the affairs of the Branch and the delicate matters relating to the forthcoming elections be attended to by the officers of the Branch, including the Secretary, who presently holds office. I should say that I take the status quo to be the management structure of the Branch that exists pursuant to, and that has arisen under, Evatt J.'s orders of September last.

15. Counsel on both sides approached this case on the footing that it is interlocutory in nature and not a final hearing, so that only a prima facie case need be established in the sense in which that has been discussed in cases too well known for me to mention, or that there is a reasonably arguable case to be tried, posing what is, in my view, on the facts of the case, simply another way of expressing the same test. Also on this view it is necessary to consider the balance of convenience.

16. I have some difficulty regarding this as in truth an application for interlocutory relief. It is an order calling upon the respondents to show cause; and what is sought against them is that they perform and observe the Association's rules in certain respects until the declaration of the next election for Branch officers, and refrain from taking certain action in the meantime. I think the proper view is that this is not an interlocutory hearing. It is a final disposition of the return of the order to show cause. However, I do not think that it matters which approach is taken because, in my opinion, it is more likely than not that the applicant's case will fail at a final hearing. So, I strictly need not consider the question of balance of convenience. Even if I did embark upon that exercise (and I have considered it for this purpose for reasons that I have already given in relation to the question of discretion) in my opinion the balance of convenience favours the refusal of interlocutory relief.

1. Finally, I should say that although the respective merits of the applicants, Mr. McGill and others were canvassed in evidence and argued before me, I propose to say nothing about them. The occasion does not require it and in view of the forthcoming elections, it is undesirable to comment. They should each have a chance to fairly put their cases to their electors untrammelled by any adverse or positive findings by the court on matters which I think the electors are best able to decide. Accordingly, the rule to show cause is discharged.