Thompson, N.W. v Hodder, E

[1989] FCA 738

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	NO. S1 6 OF 1989
)
INDUSTRIAL	DIVISION	1
B E T W E E N :

NEVILLE WILLIAM

THOMPSON & OTHERS

Appellants

A N D :

EROLL HODDER & OTHERS

Respondents

CORA?l:  KEELY, GRAY & RYAN JJ.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIZT)

KEELY J.: I agree that the appllcatlon for leave to appeal should be refused and wlth the reasons for judgment delivered by Ryan J.

conceded that to obtain an exerclse of the dlscretlon	favourable to the applicants they had to show that unless the
respondents are restrained from deallng wlth the charges agalnst the appllcants u n ~ i l after the hearing and determlnation of the appeal from the ludgment of Northrop J., the rlght of appeal belng exercised wlll be nugatory. In my vlew counsel for the appl~cants for leave have not shown that the judgment of O'Loughlin J. on those matters has been attended with sufficient doubt to warrant the grantlng of leave to appeal.
RYAN 3 . : By notice of motion filed in the South Australian Dlstrict Registry of thls Court, the appellants Nevrlle Wllllam Thompson, Leslle Ronald Blrch, James Patrlck Hughes and Neville Anthony Baker, sought that an order of Northrop J. made on 27 September 1989 be stayed pending the hearing and determlnation of an appeal against that order.
That order of Northrop J. discharged a rule nlsl calllng on the respondents to show cause why orders should not be made:

GRAY J.: I also agree wlth tne reasons for ludgment of Ryan J. and with the order that he proposes. Counsel for the

applicants for leave to apgeal conceded thac che declslon of

OrLoughlin J. from whlch leave to appeal was sought, was a declslon in the exercise of a d~scretion. Counsel also

"1. That the respondents and each of them

Australlan Workers' Unlon by dismissing	observe and perform the Rules of the
charges made by the Respondent John Dunnery against the appllcants Neville Wllllarn Thompson, Leslle Ronald Blrch, James Patrlck Hughes and Nevllle Anthony Baker upon the grounds set forth in the Affldavlt of Nevllle Willlam Thompson, sworn the 7th day of June, 1989 and flled herein.
2. That the respondent John Dunnery in his capaclcy as a member of the Australlan Workers' Unlon observe and perform the Rules of the sald Organisation by
withdrawing or alternatively not tendering
any evidence in support of the charges laid by him against the Applicants or any of them in the correspondence exhibited to the
Affidavit of Neville Willlam Thompson,
sworn the 7th day of June, 1989 and flled herein.
3. In the alterna~ive:
the Respondent Hodder observe and perform the Rules of the Australian Workers' Unlon by not sltting as a member of the Executive Council of the Australlan Workers' Union upon the hearlng and determination of the charges agalnst the Applicants."

The charges in question were formulated as follows:-

"A. As to the applicant Thompson -

(i) Gross Misbehaviour.

That you committed the act of gross mlsbehavlour in falsification of mrnutes of Branch Executive meetlng on 7 July 1988.

(li) Substantial Breach of the Rules.

That you represented a document purporting to be the minutes of the Branch Executive meetlng of the South Australlan branch of the Australian Workers' Union on 8 July 1988 to be a true and accurate record of the sald meetlng knowing those purported mlnutes

to be false and inaccurate.

(ill) Gross Mlsbehavlour.

That you represented a document purporting to be the mlnutes of the Branch Executive meetlng of the South Australian Workers' Unlon on 8 July 1988 to be a true and accurate record of the said meetlng knowlng those purported minutes to be false and ~naccurate.

B. AS to the applicant Birch -

(I) Substantial Breach of the Rules.

That you represented a document purportlng to be the minutes of the Branch Executive Meeting of the South Australlan branch of the Australian workers' Unlon on 8 July 1988 to be a true and accurate record of the said meeting knowing those purported minutes to be false and inaccurate.

(11) Gross Misbehaviour.

That you represented a document purporting to be the minutes of the Branch Execut~ve meeting of the South Australlan branch of the Australian Workers' Union on 8 July 1988 to be a true and accurate record of the said meeting knowlng that these purpor~ed

rnlnutes to be false and inaccurate.

(lii) Gross Mlsbehavlour.

That you committed the act of gross mlsbehavlour in falsification of mlnutes of the Branch Executlve meeting on 8 July 1988.

C. As to the applicants Hughes and Baker -

1 ) Substantial Breach of Rules.

That you represented a document purportlng to be the minutes of the Branch Executive meetlng of the South Australlan Branch of the Australian Workers' Union on 8 July 1988 to be a true and accurate record of the said meetlng knowing those purported minutes to be false and inaccurate.

(ii) Gross Misbehaviour.

That you represented a document purporting LO be the minutes of the Branch Executlve meeting of the South Australian branch of the Australian Workers' Union on 8 July 1988 to be a true and accurate record of the sald meetlng knowlng these purported rnlnutes to be false and inaccurate."

On 9 June 1989 von Doussa J. made these interlm orders on the application of the appellants:-

"1. The Respondent John Dunnery ln hls capaclty as a member of the Australian Workers' Unlon be restrained from taking any action or further actlon of any klnd whatsoever to prosecute the charges made by him against the Applicants or any of them In the correspondence exhlblted to the Affldavlt of Nevllle William Thompson pending the hearing and determlnation of the Rule to Show Cause.

2. The Respondents and each of them not

proceed to hear and determine the said charges made by the Respondent Dunnery against the Applicants or any of them pendlng the hearing and determlnation of the Rule to Show Cause herein."

Since those orders were expressed to enure pendlng the hearlng and determination of the rule to show cause, they ceased to have any effect on the discharge of that order. However, the motlon for a stay of Northrop J.'s order apparently proceeded on the assumption that if that order were stayed the lnterim orders made by von DOuSSa J. would be revlved, so as to preclude the conduct of a meeting of the

Executive Council of the ~ustrallan	Workers' Unlon whlch had
been convened to hear the charges a:	11 a.m. next Wednesday,
8 November 1989.

In substance, however, the applicants sought interlm orders restraining the Executive Councll from meetlng to hear the charges until after the hearlng and determlnation of the appeal from Northrop J. OtLoughl~n J. apparently approached

the motion with that percept~on of its substance, and, in my

view, thls Court should take the same approach.

On 31 October 1989 OrLoughlln J. refused the motion and after referring to 0. 52 r. 17 of the Rules of this Court, hls Honour said:-

"There is a body of case law to the effect that a judge wlll interfere and will make an order operating as a stay, if the appeal process would be rendered nugatory by virtue of the failure to stay the due execution of the judgment under appeal."

fir. Di Fazio, who appeared wlth Mr. Moloney for the applicants for leave to appeal from his Honour's order, conceded that to be an unexceptionable statement of the relevant law. However, he contended that hls Honour misapplied that law by faillng to realise that any remedy afforded by this Court after the Executive Counc~l had

presumptively found the applicants guilty of the respective

charges agalnst them, would only attach to the ultimate

fact which would necessarily underly the so-called

convictions, as they were called, and not to the findlng of

convictions.

In my view that contention cannot be sustained. If
thls Court, as a result of allowlng the appeal from Northrop
J. or in other proceedings challenging the propriety of the

proposed meetlng of the Executive Councll, were to order that the meetlng Itself or a resolutlon embodying a flnding of gullt against any of the applicants should be treated as null and void, the legal operation of such an order would be to deprlve that resolutlon, or the meetlng itself, lncludlng any finding of fact Inherent in the resolutlon, of any effect whatsoever. It would be as if the meeting had never occurred or as if the impugned resolution had never been carried.

It may be that a finding, although vold as a matter of law, can entall adverse soclal or electoral consequences for the party affected by the flnding or may hurt the feelings of that party. But, in my view a stay should only be granted where it IS shown that the applicant would suffer some Irreparable loss of a legal rlght if the stay were not granted.

I find nothlng to contradlct that vlew in the
observation of Isaacs J. In McBrlde v Sandland [No. 2.1

(1918) 25 CLR 369 where hls Honour observed, at 375 "that one

petitloner unless a stay was granted." essential was that a serlous inlury would result to the

The respondent in that case was clearly seeklng to
preserve a legal rlght to remain in possession of land.
Nevertheless, the Hlgh Court was apparently not persuaded

that the respondent would suffer Irreparable inlury from the loss of that rlght pendlng an appllcatlon for speclal leave to appeal to the Prlvy Council. A fortlorl, in my vlew, a stay should not be granted where the ln]ury polnted to by the

applicant as belng Irreparable does not lnvolve the loss of

any rlght recognised by the law.

Accordingly, I am not persuaded that the judgment of OfLoughlln J. of 31 October was "attended wlth sufflclent doubt" as that phrase was explained, for example, by Murphy J. In Niemann v Electronic Industries Ltd. [l9781 VR 431 at

442. I would therefore refuse the application for leave to

appeal.

I certlfy thls and the

foregoing seven pages to be a

true copy of the Reasons for Judgment hereln of their Honours Mr. Justlce Keely, Mr. Justlce Gray and Mr. Justice Ryan delivered on 6 November, 1989.

Assoclate: a G I A / d f i N E

Date: 27 November, 1989

Date of Hearing	: 6 November, 1989
Judgment Delivered	: 6 November, 1989
Solicltors for appellants	: Moloney & Partners

Counsel for the appellants : Nr. D1 Fazlo with Mr

Moloney

Solicitors for respondents : Turner & Freeman

Counsel for the respondents : Pir. J. P. Phillrps Q.C. with

Mr. Murdoch