Thompson v Ludwig

[1991] FCA 367

Re: NEVILLE WILLIAM THOMPSON
And: W. LUDWIG; J. DUNNERY; R. SMITH; M. O'SHEA; F. LAKE; J. TURLEY; V.J.
KEENAN; B. WILSON; V. JACOBS; E.J. BUTLER; B. MEIKLEJOHN;
I. CAMBRIDGE; E.R. HODDER; M. FORSHAW; F. PHILIPS; M. WALSH; J. COLLINS;
M. WARNEKE; R. HUTTON; P. TUCK; M. MALONEY and J. CLARENCE
No. V I13 of 1991
FED No. 367
Industrial Law
(1991) 37 IR 437

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - performance and observance - dismissal of unelected organiser - power of branch executive to dismiss any "Officer" only in specified circumstances - "Officer" defined for purposes of rules as including appointed and employed organisers, "unless the context otherwise required" - whether context otherwise required - whether unelected organiser an "Officer" even if definition not applied - whether denial of natural justice - failure to formulate charge or to give notice of precise conduct complained of - whether waiver of right to procedural fairness by continuing to contest proceedings in the belief that success was likely - discretion not to make an order - principles on which discretion exercised.

Words and phrases - "Officer".

Conciliation and Arbitration Act 1904 s.133(1)(f).

Industrial Relations Act 1988 ss.3,195(1)(c).

Industrial Relations (Consequential Provisions) Act 1988 s.5.

HEARING

MELBOURNE

#DATE 27:6:1991

Counsel for the applicant: Mr D. Staindl

Solicitors for the applicant: Gill Kane and Brophy

Counsel for the 3rd, 6th, 15th,
16th, 17th, 18th, 19th, 20th,
21st and 22nd respondents: Mr R. Hinkley

Solicitors for the 3rd, 6th, 15th,
16th, 17th, 18th, 19th, 20th, 21st
and 22nd respondents: Holding Redlich

Counsel for the 1st, 4th, 5th,
7th, 8th, 10th, 12th and 14th
respondents: Mr R. McClelland

Solicitors for the 1st, 4th,
5th, 7th, 8th, 10th, 12th and Turner Freeman, by their agents
14th respondents: Ryan Carlisle Thomas

ORDER

The Court orders that the rule to show cause is discharged.

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

JUDGE1

The Australian Workers' Union ("the Union") was for many years an organization, registered pursuant to the Conciliation and Arbitration Act 1904 ("the C and A Act"). Its rules were amended from time to time, and the amendments were certified by the Industrial Registrar, pursuant to the relevant provisions of the C and A Act. Upon the repeal of the C and A Act, on 1st March 1989, and the coming into operation of the Industrial Relations Act 1988 ("the Industrial Relations Act"), the Union was taken to have become registered under the Industrial Relations Act and its rules as then in force continued in force. See s.5 of the Industrial Relations (Consequential Provisions) Act 1988. Thereafter, the rules were further amended and the amendments were certified by the Industrial Registrar pursuant to the relevant provisions of the Industrial Relations Act.

1. It is apparent from an examination of the rules as presently in force, and of some of the amendments which have been made to them in the past, that many amendments have been made for the purpose of curing deficiencies which have been exposed in particular provisions. Often those amendments have been made without regard to their effects on other provisions of the rules. The result is a set of rules containing many inconsistent provisions and many provisions which cannot be interpreted with any confidence that the correct meaning has been ascertained. The absence of clarity in these rules has been largely responsible for a four day trial in the present matter, which has probably resulted in the Union incurring more costs than it would have if the rules had been amended so that they contained some consistent and discernible scheme.

2. The applicant has been a member of the Union for many years. In the early part of 1990, he held office as president of its South Australian branch. Under the rules, elections were held for numerous positions in both the South Australian branch and the Victorian branch in late 1989. The successful candidates in those elections took up office on 1st June 1990. The applicant stood for election unsuccessfully in the South Australian branch. He then entered into an arrangement with the members of the incoming branch executive of the Victorian branch that he would become an organiser with the Victorian branch.

3. The minutes of a meeting of the incoming Victorian branch executive on 4th June 1990 record the following:
   

"Hiring of New Officials

The question of new employees was raised. The new officials are: J. Stulpinas, A. Palma, A. Rix, A. Elliott, N. Thompson.

Moved that the following officials be appointed. J. Stulpinas - organiser A. Palma - organiser A. Rix - organiser N. Thompson - organiser A. Elliott - Office Manager/W.Care MOVED R. Smith, SECONDED J. Clarence

Carried Unanimously".

In fact, the applicant began his duties on Monday 28th May 1990, pursuant to an arrangement which the incoming team had made with the outgoing branch secretary and branch executive. He renewed his membership ticket on that day, purchasing his new ticket from the Victorian branch.

1. The applicant was given responsibility as an organiser for the bitumen industry and for concrete batching plants in the metropolitan area of Melbourne. He was involved in negotiations with respect to the relevant awards, and assisted an industrial officer from the head office of the Union, and an industrial officer from the Victorian branch, in appearing before industrial tribunals. At one stage, he went to Gippsland for a week, to assist a new organiser in organising shearers. At the request of the Victorian branch secretary, Mr Bob Smith, he attended a shearing competition at Shepparton to represent the Union.

2. On 17th January 1991 at about 4.45 p.m., a message was left by telephone at the applicant's home, that Mr Smith wanted to see him at the office of the Victorian branch at 8.45 a.m. the next day. The applicant received no notice about the subject of the meeting. He attended as requested and was told that a number of organisers had approached Mr Smith, complaining that the applicant was attempting to mount a campaign to challenge Mr Smith's position in the Victorian branch. Mr Smith accused the applicant of talking to organisers behind closed doors for this purpose, and told him that he had put those organisers in an untenable position. The applicant endeavoured to refute the allegations, describing the content of a conversation which he had conducted on 14th or 15th January with two organisers, Jurgis Stulpinas and Bruce Papworth, about problems which the applicant perceived concerning members of the Union employed by the Melbourne and Metropolitan Board of Works. The applicant gave a reason why he had closed the door of the organisers' office while this conversation was being held. Mr Smith then said that he had no alternative but to dismiss the applicant for "gross misconduct in accordance with the rules". He said that the applicant would receive one month's pay in lieu of notice and one month's severance pay and that he should give up his motor vehicle and cease to reside in a house owned by the Union in which he was then living. The entire conversation lasted no more than five minutes.

3. The applicant then requested that he be given the opportunity to raise the matter of his dismissal before the branch executive. The branch executive was meeting on that morning at 9.30. Some time after the meeting began, the applicant was invited into it. Mr Stulpinas was already there. The branch president, Mr Fred Phillips, advised the applicant that Mr Stulpinas had already given an account of the conversation he had had with the applicant on 14th or 15th January. The applicant asked whether he could be given an opportunity to hear from his accuser. Mr Phillips then asked Mr Stulpinas to repeat his account of the conversation. According to the applicant, the account given by Mr Stulpinas was similar to the applicant's own account of the conversation, but the conclusions which Mr Stulpinas drew from it were conclusions with which the applicant disagreed. The applicant then gave his account of the conversation and endeavoured to refute any suggestion that he was working against the interests of the Union. He claimed that he had been dismissed because he had voiced concerns about the administration of the branch. The applicant then left the room. It is unclear whether Mr Stulpinas also left. Mr Smith remained in the meeting. Mr Smith then moved that the action he had taken that morning in dismissing the applicant was justified, given the circumstances that led to it and, with the evidence that had been heard, that the action taken be upheld. This motion was seconded. A vote was taken. No votes were cast against the motion, but Mr Phillips wished to have it recorded that he did not support the motion. The applicant was then informed that the branch executive had upheld Mr Smith's decision to dismiss him.

4. On 26th January, the applicant informed Mr Errol Hodder, who was then the general secretary of the Union, that he intended to exercise his right of appeal under rule 43(c) of the Union's rules. He lodged his appeal formally by letter dated 29th January, which was followed by a letter dated 30th January, setting out the grounds of appeal. These were as follows:
   

"1. I absolutely and unequivocally deny any "misconduct".

2. I was given no notification

whatsoever from Bob Smith or the Victorian Branch Executive of any concerns they had regarding my

conduct prior to my termination.

3. I was not charged with any breach of the Rules of the Union.

4. I was denied natural justice.

5. Bob Smith and the Victorian Branch Executive, in so acting to terminate my employment, breached the Rules of the A.W.U.

6. My dismissal was harsh, unjust and unreasonable.

7. The concerns expressed by Bob Smith and the Branch Executive regarding my speaking to people behind closed doors were and are totally without foundation."

By letter dated 6th February 1991 to the applicant's solicitors, Mr Hodder advised that the appeal would be heard on 28th February. At the same time, Mr Hodder wrote to Mr Smith, advising him of the hearing date and saying:

"In the event that you wish to call evidence substantiating allegations of misappropriation of funds of the Union, or of a substantial breach of the rules of the Union, or of gross misbehaviour or gross neglect of duty, or if Mr. Thompson has ceased, according to the Rules of the Union to be eligible to hold office in the organisation, then I would ask that you please provide such material to me within seven (7) days as Mr Thompson should be afforded the opportunity of considering the material prior to the appeal."

Mr Smith did not comply with this request prior to the hearing of the appeal by the executive council.

1. At the meeting of the executive council on 28th February, Mr Hodder tabled all of the relevant correspondence. The meeting resolved as follows:
   

"That the procedure for the appeal be as follows: There be a presentation by Mr. Thompson of his appeal to the Executive Council in the presence of Mr Smith, and then Mr Smith to present his counter argument as to the appeal and then questions may be asked by members of the Executive Council of Messrs. Thompson and Smith. Following this, Messrs. Thompson and Smith will both leave the Executive Council meeting room to allow Executive Council to make its determination".

Mr Smith objected to the executive council hearing the appeal. It appears that there was a conflict between legal advice which had been received by the Victorian branch executive and legal advice received by the executive council on the question whether the executive council was entitled or obliged to hear the appeal. In view of the state of the rules of the Union, it is not surprising that this conflict of legal advice occurred.

1. The applicant was then invited into the meeting and advised of the procedure to be adopted. He presented his appeal by way of reading a written submission, copies of which he distributed to the members of the executive council. This submission touched on the inadequacy of any notice given to the applicant of what he would have to meet on 18th January, the failure to charge him in terms of rule 43(c), the failure to provide particulars of allegations made against him, denial of natural justice in several respects and the applicant's account of his conversation with Mr Stulpinas and Mr Papworth.

2. Mr Smith was then called upon to present his case. He proceeded to read written statements from five Victorian branch organisers and Mr Smith's secretary. There was some discussion as to whether these documents could be received. The meeting adjourned for a short time to enable the documents to be copied and distributed to all members of the executive council and to Mr Thompson. In addition to the conversation between the applicant and Mr Stulpinas and Mr Papworth, the statements dealt with allegations of other conversations involving the applicant, including conversations with organisers other than Mr Stulpinas and Mr Papworth. They also included allegations by Mr Smith's secretary that the applicant had been into Mr Smith's office on more than one occasion, looking at documents, without Mr Smith's authority.

3. After Mr Smith had presented his case, the applicant was given an opportunity to respond to it. He protested at being taken by surprise by the new material in the written statements, and referred to his inability to confront his accusers at that time. He did his best to refute the allegations against him. When he had finished, Mr Smith was given a further opportunity to respond. The executive council then adjourned for lunch. After the luncheon adjournment, members of the executive council asked questions of the applicant and Mr Smith, who gave answers. The applicant and Mr Smith then left the meeting and debate took place. A motion in the following terms was moved and seconded:
   

"That the appeal lodged by Neville Thompson against his dismissal in the first instance by the Victoria Branch Secretary Robert Smith, and confirmed by the Victoria Branch Executive on the 18th January 1991, be upheld, and that the Victoria Branch Executive be advised of this and that Mr Thompson be reinstated forthwith."

After further debate, the motion was put to the vote and defeated. The count was twenty-five votes in favour and thirty-eight votes against, the various members of the executive council exercising multiple votes in accordance with the numbers of members in the branches which they represented.

1. On 15th March 1991, the applicant was granted a rule to show cause in the present proceeding. The first fourteen respondents were the members of the executive council at that date. The remaining eight respondents, together with the third respondent (Mr Smith) and sixth respondent (Mr J. Turley) constitute the Victorian branch executive. On the return of the rule to show cause, Mr Staindl of counsel appeared for the applicant. Mr Hinkley of counsel appeared for all of the members of the Victorian branch executive. Mr McClelland, a solicitor, appeared for the members of the executive council other than Mr Smith and Mr Turley, for whom Mr Hinkley appeared, Mr Hodder, who is no longer the general secretary of the Union, and Messrs. Dunnery, Butler and Cambridge, who did not appear, but indicated to the Court through Mr McClelland that they would submit to any order which the Court might make.

2. Rule 43 of the rules of the Union provides as follows:
   

"43 - POWERS AND DUTIES OF BRANCH EXECUTIVE AND DELEGATE MEETINGS

Branch Executives or Delegate Meetings shall have power to:

(a) Decide any question solely affecting such Branch which may arise within the Rules of The Australian Workers' Union.

(b) Make, alter or rescind any by-laws for the guidance of, and generally to have absolute control of the affairs of such Branch, subject always to the Rules of The Australian Workers' Union, resolutions of Convention, or decisions of Executive Council.

(c) Dismiss from office any Officer who has been found guilty in accordance with the Rules of the Union of misappropriation of funds of the Union or of a substantial breach of the Rules of the Union or of gross misbehaviour or gross neglect of duty or if such Officer has ceased according to the Rules of the Union to be eligible to hold such office. Any Officer so dismissed by the Branch Executive shall have the right of appeal to the Executive Council or to Convention against such dismissal.

(d) By not less than two-thirds of the total number of the members of the Branch Executive by writing signed by them, exercise all the powers of the Branch Executive upon the Branch Secretary informing the members of the Branch Executive by post or receipted personal delivery of any matter in regard to which a decision is required. Provided that the powers of the Branch Executive shall not be so exercised in writing in connection with the following matters except as in paragraph (ii).

(i) Any matter relating to the dismissal of any member of the Branch Executive or of a representative of a Branch on the Executive Council or of a Vice-President of the Union or Delegate to Annual Convention.

(ii) Any matters relating to the appointment of any member of the Branch Executive or of a representative of a Branch on the Executive Council or of a Vice-President of the Union or Delegate to Annual Convention - except in the case of where a member of the Branch Executive or a representative of a Branch on the Executive Council or a Vice-President of the Union or Delegate to Annual Convention has been notified of the time and place to attend a meeting of the Branch Executive, Executive Council or Convention and that person is unable to attend the meeting as notified and providing that the person concerned notifies the Branch Secretary or Branch President to inform all members of the Branch Executive of his or her inability to attend at the notified meeting, the members of the Branch Executive may by voting confirmed by correspondence appoint another member of the Union to act in that person's capacity at the notified meeting.

(iii) The fixation of salaries of Branch Secretaries, District Secretaries, Divisional Secretaries and Organisers.

(e) Appoint as Branch Returning Officer, some person who is not:

(i) an unfinancial member of the Union;

(ii) the holder of any office in the Union;

(iii) an employee of the Union.

(f) Appoint an Acting Branch Secretary or District Secretary for a period of no longer than three calendar months to perform all of the duties of the Branch Secretary or District Secretary in the event of the Branch Secretary or District Secretary being required to be absent from duty on any approved leave. Any such person appointed in an acting capacity shall be a member of the Union and in addition shall be qualified to hold such position in accordance with Rule 68.

No Branch shall interfere with other Branches in any way."

If the applicant were an "Officer", for the purposes of rule 43(c), that provision appears to be the only one which would enable him to be dismissed. His dismissal could only be effected by the branch executive, upon it making the requisite finding. Further, it is clear that the principles of natural justice would be implied into the provisions of the rule, so that the power to dismiss could not be exercised unless the applicant were afforded procedural fairness. On the other hand, if the applicant were not an "Officer", it seems that the general powers of the branch executive under rule 43(b) would provide sufficient power to dismiss him from employment. It was so held in Newton v. Hogan (1971) 18 FLR 434, at a time when the rules gave an express power to the branch secretary to dismiss organisers in defined circumstances. It is unclear from the rules whether the branch secretary, who has a power under rule 48(a) to "exercise control over all employees", would have power to dismiss an employee in his own right. In the present case, however, Mr Smith's action was ratified by the branch executive.

1. The rules of the Union contain some relevant definitions in rule 89. The relevant provisions of that rule are as follows:
   

"In the interpretation of these Rules, the following words and expressions shall unless the context otherwise requires have the following meanings:

...

(f) "Office" shall include those positions referred to in sub-rule (g) and (h) of this Rule.

(g) "Branch Office" shall include the positions of Branch President, Branch Vice-Presidents, Branch Secretary, District Secretary, Delegates to Delegate Meeting, Queensland Branch, President and Secretary of the Mining Division of the Western Australian Branch, Branch Executive Councillors, Branch Vice-President on Executive Council, Branch Executive Committeemen and elected Organisers.

(h) "Officer" shall include those persons who hold a "Branch Office" as referred to in sub-rule (g) of this Rule and shall also include the President, General Secretary, Assistant General Secretary, Delegates to Convention, appointed or employed Organisers (who were members of the Union immediately prior to becoming such) and persons appointed as Officers who have been elected or lawfully appointed in accordance with these Rules.

...

(k) "Organiser" means a member elected in accordance with these Rules or appointed by a Branch Executive or Convention or the Executive Council to advocate the principles of unionism, to participate in the effective management of the affairs of the organisation or Branch, to participate in the enforcement of the Rules of the Organisation or Branch and to promote the organisation and enrolment of members.

(l) "Employed Organiser" means a member employed and paid to work at the direction of the Branch Secretary."

1. The application of the definition in rule 89(h) to the word "Officer" in rule 43(c) would produce the result that the applicant would fall within the provisions of that rule. This is because of the reference in the definition to "appointed or employed Organisers". That is the result for which the applicant contended. It is the result which must follow, unless, in the words of rule 89 "the context otherwise requires". Mr Hinkley embarked on an extended examination of the rules, and of the history of many of the provisions, in order to show that the context of rule 43(c) "otherwise requires".

2. There can be no doubt that a definition clause in terms of rule 89 contains a powerful expression of intention to apply in almost all circumstances in which the defined words are used. The opening words of rule 89 express this intention more strongly than does the wording used in most definition clauses, where phrases such as "unless a contrary intention appears" are common. They are a great deal stronger than the earlier definition clause used in the rules of the Union, which only required that the meanings given be used as a "guide". Such an intention cannot be set aside lightly.

3. The word "officer" is used in many provisions of the rules. Sometimes its initial letter is capitalised; there does not appear to be any consistent use of capital or lower case letters. In his examination of the rules, Mr Hinkley tended to look at the word "officer" in its context, to make submissions as to its likely meaning in that context, and then to pose the question whether the definition of the term in rule 89 was appropriate. In my view, that approach is incorrect. The definitions in rule 89 are intended, by the terms of that rule, to be the first resort in construing the rules. The framers of the rules are to be presumed to have intended that the definitions should apply throughout, except in the most unusual of circumstances. It cannot be denied that there are many occasions when the term "officer" is used in the rules in circumstances in which the application of the definition would produce strange results, but it is not for the Court to say that those results were not intended. A definition which is regarded as too easily excluded is not of much use, and the definitions in rule 89 are intended clearly to be used in the interpretation of the rules.

4. The first place to look for a context which "otherwise requires" is within rule 43 itself. Mr Hinkley argued that the terms of rule 43(d)(i) indicate an intention that rule 43(c) should apply only to those officers who are members of the branch executive or the executive council, or are delegates to the annual convention. Those terms could equally well indicate an intention that the powers contemplated in rule 43(c) may not be exercised by postal ballot in relation to certain of the officers, but may be so exercised in relation to the others. Merely because some officers are specified in a restriction on the use of a power, it cannot be said that the power itself is limited. If the meaning of the word "officer" is to be gleaned from within rule 43 itself, the word might include the returning officer, to whom specific reference is made in rule 43(e). No clear guidance can therefore be found in the terms of the rule.

5. It may be assumed safely that rule 43 came into the rules to satisfy the statutory obligations which were found in s. 133(1)(f) of the C and A Act. That provision found its way into the C and A Act on 13th November 1973, on the coming into operation of Act No. 138 of 1973. It was provided that the rules of an organization:
   

"(f) shall not provide for the dismissal from office of a person elected to an office within the ... organization unless he has been found guilty, in accordance with the rules of the ... organization, of misappropriation of the funds of the ... organization, a substantial breach of the rules of the ... organization or gross misbehaviour or gross neglect of duty or has ceased, according to the rules of the ... organization, to be eligible to hold the office."

At the same time, there came into the C and A Act a definition of "office", which included "every office within the organization or branch for the filling of which an election is required to be conducted". Thus, it was the clear legislative intention that all persons elected should be protected from dismissal unless the rules of the relevant organization contained provisions which accorded with s. 133(1)(f). The antecedent provision of rule 43(c) was certified by the Industrial Registrar on 24th October 1974, as rule 58(c). It was in the same terms as the present rule, except that it did not include the sentence concerning the right of appeal, which came into the rule by way of amendment certified on 27th March 1975. Shortly after the insertion of the antecedent of rule 43(c), there was also inserted in the rules of the Union a provision dealing with the power of the executive council to dismiss officers. This amendment was certified by the Industrial Registrar on 18th November 1974. The present version is found in rule 37. Of it, Northrop J. said in Thompson v. Hodder (1989) 31 IR 300, at p 304, "Rule 37 has been adopted in conformity with s. 195 of the (Industrial Relations) Act." In fact, s.195(1)(c) differs from s. 133(1)(f) of the C and A Act in some important respects. It provides that the rules of an organisation:

"may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:

(i) misappropriation of the funds of the organisation;

(ii) a substantial breach of the rules of the organisation;

(iii) gross misbehaviour or gross neglect of duty or has ceased, under the rules of the organisation, to be eligible to hold the office;"

It will be seen that the provision is now phrased in permissive, rather than in prohibitive, terms. More importantly, the definition of "office", which now appears in s. 4(1) of the Industrial Relations Act, makes it clear that the protection which is required need not be extended to the holder of every elected position in an organisation.

1. Nothing in the legislation prevents, or has prevented, an organisation from extending the effect of a provision such as s. 133(1)(f) or s. 195(1)(c) to persons who do not fall within the statutory definition of "office". The fact that rule 43(c) was adopted to satisfy a statutory obligation does not mean that it should be construed necessarily as extending only to the classes of persons contemplated by the statute. It is perfectly possible for an organisation to adopt a rule, giving to all elected persons, and to some employees, the same protection as must be extended to certain classes of elected persons. The question is always one of the true construction of the rules. See Morris v. O'Grady (Federal Court of Australia, Gray J., 31st May 1991, not yet reported) at pp 20-21. Nevertheless, in dealing with a rule such as rule 43(c), the meaning of which is not clear, the purpose for which it has been inserted is a relevant consideration. Without the earlier version of rule 43(c), s. 133(1)(f) of the C and A Act would have had the effect of preventing the dismissal of elected persons. The dismissal of unelected organisers, pursuant to the power held to exist in Newton v. Hogan (1971) 18 FLR 434, remained unaffected by statute.

2. Rule 43 is one of a series of rules of the Union dealing with the affairs of branches. Rule 39 divides the Union into branches, including the Victorian branch. It provides that "Each Branch shall elect its own officers as provided for by these Rules...". The word "officers" in that provision cannot have been intended to be construed in accordance with the definition in rule 89, because that definition expressly includes as officers some holders of positions who are not elected, and because the application of those parts of the definition which include holders of positions at the national level, or in particular branches, would not be sensible. In terms of rule 89, the context of rule 39 "otherwise requires". Rule 40 provides that, subject to the rules, the highest authority in a branch will be the delegate meeting in branches where districts have been formed and the branch executive where they have not. Rule 41 contains provisions for the constitution of branch executives. I shall discuss it in more detail later in these reasons for judgment. Rule 42 deals with the constitution of districts. Then comes rule 43. Rule 44 provides for the fixing of salaries and other payments to specified persons. Rules 45 and 46 relate to delegate meetings in those branches which have them, of which the Victorian branch is not one. Rules 47 and 48 provide for the duties of branch presidents and branch secretaries respectively.

3. The application of the definition of "Officer" in rule 89 to rule 43(c) would produce the result that a branch executive or delegate meeting could dismiss from office the president, general secretary and assistant general secretary of the union, as well as any branch president, branch vice-president, branch secretary district secretary, executive councillor, branch vice-president on the executive council, branch executive committee members and elected organisers, as well as the holders of the positions named specifically in the definition of "Branch Office", irrespective of the branch to which the person dismissed was attached. It may be that the closing words of rule 43 would prevent one branch from dealing with an elected person in another branch; that would be so if such a dealing could be described as interfering with another branch. Such an interpretation would not solve the problem that any branch executive or delegate meeting could dismiss one of the holders of the specified positions at the national level of the Union. There are two ways in which this somewhat startling result might be avoided. One was suggested by Mr Hinkley, when he pointed to the fact that the opening words of the definition of "Officer" indicate that it is an inclusive definition. The suggestion was that the definition could be applied without the word "officer" necessarily including all of the holders of the positions listed. I do not accept this suggestion. If it were adopted, the definition would have no meaning. It would be impossible to discern, in any particular rule, which persons were, and which were not, covered. The definition is worded as it is to indicate its embracing nature, especially with reference to the definition of "Branch Office". The other way in which the holders of national positions in the Union might be regarded as protected from dismissal by branch executives or delegate meetings is by reference to the right of appeal given by the concluding sentence of rule 43(c). The holder of a national office dismissed by a branch executive or delegate meeting could appeal to the Union's executive council, which could allow the appeal if it thought fit. This solution would have practical benefits, but it fails to solve the anomaly inherent in rule 43(c) if the definition of "Officer" is to control the meaning of that word in the rule.

4. One effect of applying the definition of "Officer" in rule 89 to rule 43(c) might be that a person in the position of the applicant will have life tenure in the job of organiser. Unless there is to be found in the rules some provision limiting the term for which an unelected organiser can serve, the inevitable result will be that, unless the holder of the position is found guilty of one of the offences referred to in rule 43(c), no action can be taken to dismiss that person. Rule 74 provides for four year terms of office for elected persons. The positions for which those terms are provided are listed in the rule, and they do not include unelected organisers. The only possible provision of a term of office for unelected organisers is rule 41(a)(v). Rule 41 is difficult of construction. It is necessary to set it out in full, in order that the difficulties may be seen:
   

"41 - BRANCH MANAGEMENT AND BRANCH EXECUTIVE Branches Without Districts

(a) (i) Subject to the Rules of the Australian Workers' Union each Branch, except South Australia and Western Australia, shall be managed by an Executive consisting of a President, 2 Vice-Presidents and Secretary (who shall be called the Branch officers) together with 5 members elected as herein provided.

(ii) In the state of South Australia the Branch Executive shall consist of a President, 2 Vice-Presidents, Secretary (who shall be called the Branch officers) together with 8 members elected as herein provided.

(ii)(sic) In the state of Western Australia, the Branch Executive shall consist of a President, 2 Vice-Presidents, Secretary (who shall be called the Branch officers) together with the President and Secretary of the Mining Division of the West Australian Branch Industrial Union of Workers and five (5) members elected as herein provided.

(iv) The Branch Secretary may speak and vote at a meeting of the Branch Executive.

(v) All officers and members of a Branch Executive shall hold office for four years.

(vi) Provided all officers and members of the Branch Executive are notified to attend, any five (5) shall form a quorum except in Western Australia where a quorum shall be six (6) and in South Australia seven (7).

(vii) No resolution shall be adopted unless there is in favour of such resolution a majority of the total number of Executive members who would be entitled to vote, if they were in attendance.

(b) The five (5), and in the state of South Australia eight (8) Branch Executive Members shall be elected in the same manner as the President, Vice-Presidents and Secretary of the Branch and these officers and members shall form the Executive of the Branch. Branches with Districts

(c) (i) There shall be in Branches divided into Districts a President, two Vice-Presidents, a Secretary and one representative from each District.

(ii) The President, Vice-President and members of the Branch Executive and the Branch Secretary shall be elected every four (4) years.

(iii) The District Representative shall be elected every four (4) years by an election of the members within the District.

(iv) Any six members shall form a quorum, but a resolution shall not be deemed to be passed unless it is approved by a majority of the total number of the Branch Executive who would be entitled to vote, if they were present."

It will be seen that the word "officers" is used in rule 41(a)(v). Interpreted in accordance with the definition of "Officer" in rule 89, the word "officers" in that provision would include unelected organisers. The question therefore arises whether the context "otherwise requires". In this respect, the use of the phrase "Branch officers" in rule 41(a)(i), (ii) and what is undoubtedly intended to be (iii) is significant. The persons who are designated as "Branch officers" are not all of the persons who fall within the definition of "Branch Office" in rule 89(g). With respect to that definition, the context of rule 41 clearly "otherwise requires". The phrase "Branch officers" is not used in rule 41(a)(v); this is some indication that the word "officers" in that sub-rule is to have its defined meaning. If it were to do so, however, it would also be required to have its defined meaning in sub-rule (a)(vi). The application of the defined meaning in the last-mentioned provision would produce the absurdity that notice of branch executive meetings would have to be given to all persons who fall within the definition of "Officer" in rule 89(h), in order that less than the full number of persons who constitute the branch executive could meet and transact business. On the other hand, if the phrase "officers and members of the Branch Executive" means only those persons who constitute a branch executive, there is no explanation of the phrase "Executive members" in sub-rule (a)(vii), or of the word "members" and the phrase "total number of the Branch Executive" in sub-rule (c)(iv). Rule 41 therefore contains indications in both directions, as to whether the definition in rule 89(h) is to be applied to ascertain the meaning of the word "officers". Because of the presence of the rule within a group of rules dealing with branch concerns, and because of the absurdities that would arise if the rule related to the holders of national positions and of positions within all branches, it is likely that the word "officers" in rule 41(a)(v) is limited to those specified earlier in the rule. In other words, the context "otherwise requires" and the definition in rule 89(h) is excluded. It follows from this that there is no provision in the rules providing for limits to the tenure of office of an unelected organiser. This is a powerful reason for construing the word "Officer" in rule 43(c) as not including unelected organisers. It is unlikely that the framers of the rules would have intended to give life tenure to such persons. It should be noted that there was some evidence that the applicant was appointed only for a limited term. The evidence was equivocal, however, in that he stated that he had been appointed "until at least the next elections in 1993". This cannot be regarded as evidence of limited tenure.

1. Perhaps the major plank in the argument of counsel for the branch respondents was rule 75. This rule provides as follows:
   

"75 - ELECTION AND CONTROL OF ORGANISERS

(a) Prior to the date for calling nominations for the regular elections of Officers in accordance with rule 74 of these Rules, each Branch Executive shall determine the number of Organisers to be elected at such election.

(b) All organisers, elected or employed, shall in all cases conform to the direction of the Branch Secretary, District Secretary or Divisional Secretary by which they are employed.

(c) All elected Organisers shall be subject to removal from office pursuant to Rule 43.".

It was said that this rule constitutes a code, dealing with organisers; as such, it was part of the context which "otherwise required" with respect to the application of the definition of "Officer" to rule 43(c). The specific reference in sub-rule (c) to elected organisers and to their removal from office pursuant to rule 43 was said to make clear the validity of this code argument.

1. The argument was also said to be strengthened by the history of rule 75. Prior to 1974, the ancestral provision of rule 75 was found in rule 64 of the Union's rules. That rule provided for branch executives to decide the number of elected organisers, and for the employment of additional organisers. There was specific provision in rule 64(d) that a district secretary, divisional secretary or branch secretary could dismiss any organiser (apparently including an elected organiser) for neglect of duty, misappropriation of money or goods belonging to the Union, or if the services of such organiser were not required by the branch. It was this specific provision of the rules which was held not to exclude the power of a branch executive to dismiss an unelected organiser, in Newton v. Hogan (1971) 18 FLR 434. Despite the introduction of what was then rule 58(c), in order to satisfy the requirements of s.133(1)(f) of the C and A Act, on 24th October 1974, rule 64(d) remained in the rules. It was obviously inoperative, at least with respect to elected organisers. Shortly thereafter, however, on 22nd November 1974, alterations to rule 64 were certified. The rule came into something very like the present form of rule 75, with two important exceptions. In sub-rule (b), the words "elected or employed" did not appear; nor did the word "elected" appear in sub-rule (c). Thus, the provisions of what was then rule 58(c) (now rule 43(c)) were unarguably extended to unelected organisers. When the rules were recast substantially in 1987, the rule became rule 75 and came into its present form, that is to say that the words "elected or employed" in sub-rule (b) and the word "elected" in sub-rule (c) were inserted. Counsel for the branch respondents drew attention to these changes in support of his argument that rule 75 was to be regarded as a code dealing with organisers, and that employed organisers were expressly excluded from its operation, with respect to removal from office.

2. The argument is not altogether compelling. It is possible that rule 75(c) and the corresponding earlier provisions contained reference to removal from office out of caution, and in recognition of the operation of rule 43(c). It is also possible that amendments to the definitions in rule 89, certified since the rules were recast substantially in 1987, have affected the position.

3. In the 1987 version of the rules, the definition of "officer", which was then in rule 89(f), included "elected appointed or employed Organisers". The word "Organiser" was then defined in rule 89(i) as "a member elected in accordance with these Rules or appointed by Branch Executive or Convention or the Executive Council to advocate the principles of Unionism and promote the Organisation and enrolment of members". There was also found in rule 89(j) a definition of "Employed Organiser", in the same terms as the present definition in rule 89(l). On 27th January 1989, the definition of "Office" was inserted in rule 89(f), and the definition of "Officer" was moved to rule 89(g). The former definition included the positions referred to in the latter. The words "provided that such persons have been elected or lawfully appointed in accordance with these Rules" were added at the end of the definition of "Officer". The reference to "Assistant General Secretary" was added to the definition of "Officer" on 4th April 1989. On 26th June 1989, the definition of "Organiser" was deleted and the current definition inserted, at that time as rule 89(j).

4. On 12th November 1990, further amendments to the rules were certified, including amendments to rule 89. The definition of "Office" in rule 89(f) was expanded to include a reference to sub-rules (g) and (h). The definition of "Branch Office" was inserted into the rules as rule 89(g), in its current form. The definition of "Officer" became rule 89(h) and came into its present form. It is noteworthy that elected organisers were placed in sub-rule (g), whereas appointed or employed organisers remained in the definition of "officer". The practical effect of this change in relation to the definition of "Officer" was not great, as that definition picks up all of the positions referred to in the definition of "Branch Office".

5. In ordinary circumstances, it would be presumed that the framers of revised definitions, such as those which came into effect in 1989 and 1990, would have searched the rules for each instance in which one of the relevant defined words was used, and would have considered the appropriateness of the new definition to each such word. Such a presumption must be regarded as very weak in the context of the rules of the Union, which, as I have pointed out, have been amended on numerous occasion without adequate consideration of the wider effect of the amendments. The 1990 amendments to the definitions appear to have been inserted in the rules in conjunction with some alterations to rule 37, which in turn appear to have resulted from a desire to amend rule 37 in the light of the judgment of Northrop J. in Thompson v. Hodder (1989) 31 IR 300. The definitions appear to have been amended with nothing more in mind than those alterations to rule 37, even though rule 89 is, by its terms, of universal application. This method of amending rules is most undesirable. The fact that it was done weakens the process of applying the new definitions to existing provisions of the rules, such as rule 43(c).

6. A major flaw in the argument that rule 75 constitutes a code with respect to organisers is that it makes no mention of appointed organisers. The definitions in rule 89(g), (h), (k) and (l) suggest that there are three classes of organisers, elected, appointed and employed. In particular, the definitions suggest a distinction between appointed and employed organisers, the former being engaged for the purposes laid down in the definition in rule 89(k) and the latter merely for the purpose referred to in rule 89(l). Counsel for the branch respondents sought to overcome this difficulty by contending that the category of appointed organisers is restricted to those appointed to fill casual vacancies in the positions of elected organisers. He endeavoured to point to a consistent use throughout the rules of the words "appoint" and "appointed", with reference to the filling of casual vacancies in elected positions. Unfortunately, the usage is not consistent throughout the rules. For instance, there are provisions for the appointment of returning officers in rules 31(f) and 43(e), which make it clear that the appointment is not to a casual vacancy. Rule 58 deals with the appointment of auditors by the executive council and rule 62 with the appointment of branch auditors. In each case, there is no casual vacancy involved. Under rule 53, there is a power to appoint "Representatives", which does not appear to be restricted to the filling of casual vacancies in elected positions. Further, if the definition of "Organiser" excluded employed organisers, i.e. included only elected organisers, or those appointed to fill casual vacancies in elected organiser positions, certain provisions of the rules which contain express exclusions of employed organisers would be unnecessary. Such provisions are found in rule 3(c) and rule 22.

7. The argument that appointed organisers are only those who fill casual vacancies was rejected by Einfeld J. in Ecob v. Ludwig (Federal Court of Australia, 22nd March 1991, unreported). The issue was whether the executive council of the Union could engage an organiser to work in the branch office of the Union's Western Australian branch. At pp 10-12 of his judgment, Einfeld J. said:
   

"It seems to me that sub-rules (j) and (k) of rule 89 make for a troika of organisers:

1. organisers elected under the rules

2. organisers appointed by a branch executive, the convention or the executive council the duties of both 1 and 2 being:

(a) to advocate the principles of unionism

(b) to participate in the effective management of the affairs of the organisation or branch

(c) to participate in the enforcement of the rules of the organisation or branch

(d) to promote the organisation and enrolment of members

3. organisers employed and paid by branches to work at the direction of the branch secretary. Although rule 89 is a definition provision, it seems hardly possible that the second of the above categories of organisers could exist only for organisers appointed to fill casual vacancies in the ranks of elected organisers. In my experience these are the day to day functions of all organisers, especially those professionally employed. People filling casual vacancies replace others who would have had the same duties. I cannot see why the duties in 2 above would only be those of elected and not paid organisers. Furthermore, if "appointments" of organisers were limited to filling casual vacancies, organisers could never be "appointed" by the convention, despite rule 89(j), because the convention has no power to fill vacancies in elected positions.".

I respectfully agree with and follow what his Honour said.

1. Given that the categories of appointed and employed organisers, neither of which is elected, exist side by side, the latter having duties more limited than those of the former, the failure of rule 75(c) to refer to appointed organisers reduces the impact of the argument that rule 75(c) is a code dealing with organisers. If it were necessary to make a finding on the question, I should find that the applicant was an appointed, rather than an employed, organiser. He was asked some questions in cross-examination, concerning the duties he was given. The object of these questions was to indicate that he had not been engaged to perform those duties listed in rule 89(k) as the duties of elected or appointed organisers. Little weight can be placed on the applicant's admissions that he was not engaged to perform those duties; an examination of the nature of the questions, and of the applicant's answers reveals that the applicant was admitting to not performing a somewhat narrow interpretation of those duties. In my view, advocation of the principles of unionism, participation in the effective management of the affairs of the branch, participation in the enforcement of the rules of the Union and the promotion of the organisation and enrolment of members were undoubtedly duties which the applicant had to perform. The resolution under which he was engaged used the word "appointed". It was conceded by the branch respondent in points of contention in this proceeding that the applicant had been appointed. He is therefore to be regarded as not merely having been employed and paid to work at the direction of the branch secretary.

2. It will be seen from the foregoing extended examination of the rules of the Union that a respectable argument exists for the application of the definition of "Officer" to that word when it is used in rule 43(c). A respectable argument can also be mounted for the proposition that the context in which the word "Officer" appears in rule 43(c) requires that the definition not be applied. The selection of the appropriate argument from these two respectable arguments is a matter of great difficulty. Without great confidence that the result is the correct one, I incline to the argument that the context of rule 43(c) "otherwise requires", and that the definition of "Officer" is not to be applied. I do so having been swayed by the "branch" flavour of rule 43 and the surrounding rules, the absurd results that would follow in relation to the holders of national positions if the definition were applied, the unlikelihood that the framers of the rules intended to give unelected organisers life tenure, and the provisions of rule 75, despite their failure to refer to appointed organisers.

3. An alternative argument put on behalf of the applicant was that, even without the benefit of the definitions in rule 89, the word "Officer" in rule 43(c) is to be construed as including unelected organisers. The argument was based on a line of cases in which it has been held that holders of positions carrying some administrative or executive duties or some substantial degree of responsibility are entitled to be recognised as officers. See Landeryou v. Taylor (1969) 15 FLR 147, Ransley v. Australian Public Service Association (Fourth Division Officers) (1985) 12 IR 55, at pp 65-66 and Re Election in the Australian Collieries' Staff Association New South Wales Branch (1990) 26 FCR 499. Those cases were discussed in Morris v. O'Grady (Federal Court of Australia, Gray J., 31st May 1991, not yet reported), where it was pointed out at pp 24-25 that the question is always one of construction of the rules of the particular organisation. In the present case, many of the arguments which have persuaded me that the definition of "Officer" in rule 89(h) is inapplicable to that word when used in rule 43(c) are equally persuasive that the word "Officer" in rule 43(c) is not to be construed in accordance with the Landeryou v. Taylor line of cases. I refer in particular to the argument concerning life tenure and to the effect of rule 75. Indeed, I regard the argument that rule 75 is a code as being significantly stronger against the applicant when it is not being relied on to oust the definitions in rule 89.

4. For these reasons, I hold that the applicant was not entitled to the protection which rule 43(c) gives to some officers against dismissal. He could therefore be dismissed by the branch executive in the exercise of its general powers under rule 43(b). Further, the last sentence of rule 43(c) did not give the applicant any right of appeal to the executive council. His dismissal was complete and effective on 18th January 1991, when the branch executive ratified Mr Smith's decision to dismiss him.

5. I have already pointed out that it is possible for lawyers to disagree about the proper construction of the rules of the Union and especially of rule 43(c). I must recognise that there is a possibility that the applicant will appeal and that his appeal will be successful. It is appropriate, therefore, that I should deal with the other issue which arose in the proceeding, namely whether, on the assumption that the applicant was being dealt with under rule 43(c), he was denied natural justice. It is clear that, without the benefit of rule 43(c), or of any relevant award or contractual provision, the applicant could be dismissed without being afforded natural justice. See Brophy v. Mapstone (1984) 3 FCR 227, at p 234. The issue which I am about to discuss can only arise if my conclusion about rule 43(c) is wrong.

6. The respondents argued that, whatever may have been the defects of the proceeding of the branch executive on 18th January, they were cured by proper procedures on appeal before the executive council, at which the applicant was given ample opportunity to put his case. There is no doubt that a fair appeal is capable of curing defects at first instance in some circumstances. The authorities are discussed in Joyce v. Christofferson (1990) 33 IR 390, at pp 426-428. The leading case is the decision of the Privy Council in Calvin v. Carr (1980) AC 574, especially at pp 592-593. The present case is not one in which there was "a rehearing by the original body, or some fuller or enlarged form of it.". It is necessary to decide "whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association."

7. The major flaw in the process by which the applicant was dealt with, from the point of view of procedural fairness, was the failure of anyone at any stage to formulate any charge against him. Apart from the fact that he was told by the branch secretary that he was being dismissed for "gross misconduct in accordance with the rules", no attempt was made to link allegations of the applicant's conduct with any of the offences referred to in rule 43(c). It is doubtful whether a consideration of the question whether the applicant was guilty of "gross misconduct" adequately directed the attention of the branch executive to the question whether he was guilty of "gross misbehaviour", the relevant offence to which rule 43(c) refers. In any event, it would have been necessary for the applicant to be given some form of particulars as to what conduct of his was alleged to constitute an offence. This was never done. The defect was carried through to the appeal process, when the applicant found himself facing allegations of conduct over a much broader range than he had been led to expect as a result of the earlier proceedings. Had Mr Smith accepted Mr Hodder's invitation to provide particulars, this defect may have been overcome to some extent. At least Mr Smith would have been compelled to direct his mind to the precise allegations which he wished to make against the applicant.

8. Although the executive council seems to have regarded itself as engaging in a rehearing of the allegations against the applicant, it took the somewhat unusual course of calling upon the applicant to present his case first. When Mr Smith replied, the applicant was taken by surprise by the new evidence presented. He was not given a proper opportunity to meet the allegations contained in that evidence, and was certainly given no notice of them prior to the hearing. Thus, he was in the position of someone dealing with allegations of which he had had no notice. It is not to the point to say, as the respondents endeavoured to argue, that the applicant was given every opportunity by the executive council to answer the allegations. The fact is he was given no prior notice of those allegations, when he should have been. The appeal process was therefore far from fair and far from capable of curing defects in the hearing before the branch executive. At each level, the defect was the same, namely lack of formulation of the case against the applicant and lack of notice to him of that case.

9. The respondents then sought to argue that the applicant had waived his right to natural justice. There is little doubt that such a right is capable of waiver. It was held in Vakauta v. Kelly (1989) 167 CLR 568 that the right to an unbiased tribunal is capable of waiver. It is more difficult to find authority to the effect that a right to procedural fairness is capable of waiver. On principle, and on the assumption that a decision vitiated by want of natural justice is voidable, and not wholly void in the sense that it can be ignored, there is no reason why waiver should not be possible. Perhaps examples are difficult to find because it will be a rare case in which a person will be held to have waived the right to procedural fairness, simply by continuing to participate in the proceeding concerned. This is especially so if, in accordance with the modern trend, natural justice is to be judged according to the test of overall fairness, and not to be regarded as an expanding code of intricate rules.

10. The allegations of waiver in the present case amounted to the proposition that, at every turn, the applicant wanted to proceed, when he could have sought adjournments. It was said that he was aware of the possibility of adjournment from a previous involvement with a proceeding in the executive council, when an adjournment had been granted. The respondents pointed to the fact that, on 18th January, the branch executive only dealt with the matter because the applicant asked if he could have it so dealt with then and there. Although he knew that Mr Hodder had asked Mr Smith to provide the information specified in Mr Hodder's letter of 6th February, the applicant did not object to the hearing in the executive council proceeding without that information. He accepted the burden of putting his case first. Although he complained of being taken by surprise, and of not having the opportunity to confront his accusers, he continued to fight the allegations made in the additional statements which Mr Smith tendered to the executive council. There was evidence that, at all times, the applicant wished the proceedings to go ahead, because he believed that he would succeed. Such a belief is not uncommon in persons in the applicant's position. Many people who contest charges or allegations made against them do so in the belief that truth and justice are on their side, and that they will win. To place upon such people the burden of objecting to every defect which might contribute to a finding of a denial of natural justice, and to seek adjournments of hearings at every possible opportunity, is too onerous. Few allegations of denial of natural justice will succeed if all who elect to continue notwithstanding unfairness, because they believe they will win in any event, are denied relief in the courts. Only those who are fully acquainted with their rights, to whom the defects of procedure are obvious, and who make calculated decisions not to voice their objections, should be held to have waived their rights. The applicant was not such a person.

1. In any event, the applicant did take relevant objections when the opportunity arose. In his letter of 30th January, among his grounds of appeal, is an objection to the fact that he had not been charged with any breach of the rules of the Union. A similar objection was pursued in his written submission, which was distributed to the members of the executive council during the hearing, and read by the applicant aloud. Specific reference was made in that submission to rule 43(c). The applicant could not be held to have waived any right not to be dealt with unless he was charged in accordance with the rules, merely by failing to ask for an adjournment, when his objections to that defect in the proceedings were being ignored or rejected.

2. In cases under the Industrial Relations Act, there is now an added reason why persons in the applicant's position should rarely be held to have waived their rights. Section 209(3) of the Industrial Relations Act provides that the Court may refuse to deal with an application for an order under s.209 unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation. Someone in the position of the applicant, who did not attempt to appeal to the executive council, or who did not pursue such an appeal to its conclusion, would run the risk that the Court might decline to grant relief under s.209(3). To subject such a person to the risk of being held to have waived his or her rights, or of having an application to the Court rejected because of failure to pursue remedies under the rules, at a time when the person is without employment and without remuneration, would be to impose an intolerable burden.

3. The final resort of the respondents was to argue that the residual discretion of the Court under s.209 of the Industrial Relations Act should be exercised against the applicant, on the basis of his acceptance of the processes which were carried out. As was pointed out in Cook v. Crawford (1982) 62 FLR 34, at pp 68-69 in the judgment of Smithers J., p 82 in the judgment of Keely J. and p 124 in the judgment of Sheppard J., the discretion under s. 209 is exercised not so much on the basis of considerations peculiar to a particular applicant, but on the basis of considerations derived from the objects of the Industrial Relations Act and the nature of organisations registered under that Act. The right which the applicant exercises under s.209 in the present case is not a right which vests only in him, for the vindication of his personal grievances. It is a right which vests in every member of the Union to ensure the proper performance and observance of its rules. What emerges from the passages to which I have referred in Cook v. Crawford is that the performance and observance of the rules is of such fundamental importance that it will be a rare case indeed in which the discretion is exercised against an applicant who has made out a case for an order. In the present case, there is nothing about the way in which the applicant conducted his case before the executive council which would suggest that the Court should exercise its discretion against him. The discretion is not to be regarded as simply another way of raising an unsuccessful argument as to waiver. In the manner in which he conducted himself in the executive council, the applicant did nothing which threatened the existence of the Union as an organisation registered under the Industrial Relations Act, or tended against any of the objects set out in s.3 of that Act.

4. It follows from what I have said that, if the applicant had been entitled to the protection of rule 43(c) of the Union's rules, I should have held that he was deprived of that protection because he was denied the procedural fairness implicit in the rule. Because I have held that he was not entitled to the protection of the rule, the applicant's case must fail and the rule to show cause must be discharged.