Transport Workers Union of Australia v Hansch
[1998] IRCA 29
•7 Sep 1998
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW – whether primary judge afforded procedural fairness in determining matter based on a finding neither sought nor argued by either party – no obligation for primary judge to seek further contentions or do more than afford party a reasonable opportunity to present case – Union rules – whether adequate compliance – need for sufficient information to union members regarding purpose of special general meeting resolutions void and of no effect
Workplace Relations Act 1996 (Cth) s 209
Campbell v Higgins (1957) 3 FLR 317, referred to.
Higgins v Nicol and Ors (1971) 18 FLR 343, referred to.
Campbell v Crawford (1985) 12 FCR 317, followed.
Durham v Ide (1991) 37 IR 94, followed.
Cook v Crawford (1981) 52 FLR 1, referred to.
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, applied.
Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208, applied.
Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206, applied.
TRANSPORT WORKERS UNION OF AUSTRALIA & ORS V BARRY HANSCH
TI 12 of 1998
MARSHALL, NORTH & MADGWICK JJ
MELBOURNE
7 SEPTEMBER 1998
| IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA | ||
| TASMANIA DISTRICT REGISTRY | TI 12 OF 1998 | |
BETWEEN: | TRANSPORT WORKERS UNION OF AUSTRALIA KENNETH JOHN BACON SILAS FRANK MANLEY RAYMOND GEORGE AUSTIN JOHN MALLETT SAMUEL MCCRAE BARKER RON HODGETTS |
AND: | BARRY HANSCH |
JUDGES: | MARSHALL, NORTH & MADGWICK JJ |
WHERE MADE: | HOBART |
DATE: | 7 AUGUST 1998 |
THE COURT ORDERS THAT:
The appeal be dismissed.
| IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA | |
| TASMANIA DISTRICT REGISTRY | TI 12 OF 1998 |
BETWEEN: | TRANSPORT WORKERS UNION OF AUSTRALIA KENNETH JOHN BACON SILAS FRANK MANLEY RAYMOND GEORGE AUSTIN JOHN MALLETT SAMUEL MCCRAE BARKER RON HODGETTS |
AND: | BARRY HANSCH |
JUDGES: | MARSHALL, NORTH & MADGWICK JJ |
DATE: | 7 SEPTEMBER 1998 |
PLACE: | MELBOURNE (HEARD IN HOBART) |
REASONS FOR JUDGMENT
THE COURT: This appeal was heard in Hobart on 7 August 1998. On that day, after hearing the submissions of counsel for the appellants, the Court dismissed the appeal and indicated that the reasons for judgment would be delivered as soon as was reasonably practicable. Those reasons follow.
Theis appeal is brought from the judgment of Ryan J given on 25 May 1998. The appellants are the Transport Workers Union of Australia (“the Union”) and the members, at the relevant time, of the Committee of Management of the Tasmanian Branch of the Union (“the Branch”). The respondent, Barry Hansch, was at all material times an elected organiser employed by the Union and attached to the Branch. His Honour ordered, under s 209 of the Workplace Relations Act 1996 (Cth), that the appellants, other than the Union, perform and observe the rules of the Union by treating as null and void and of no effect the resolutions carried at a purported special general meeting of the Branch at Launceston on 21 August 1996, which purported to find Mr Hansch guilty of gross misbehaviour and to declare his office vacant. The central issue in the appeal is whether the notice of the meeting was validly given to the members of the Branch and to Mr Hansch.
BACKGROUND
Mr Hansch was elected unopposed as an organiser attached to the Branch on 8 March 1995. In late July 1996 Mr Hansch received a letter from the Secretary of the Branch, Mr Bacon, the second respondent, which advised Mr Hansch that the Branch Committee of Management had charged him with the offence of gross misbehaviour under the rules of the Union. He was further advised that he would be suspended with pay from all duties from 5.00 pm, 26 July 1996. No time or place of the meeting to consider the charge was referred to in the letter from Mr Bacon.
On 19 August 1996 a notice calling a special general meeting of members of the Branch was published in each of the three daily regional newspapers circulating in Tasmania. The notice was in the following form:
TRANSPORT WORKERS
UNION OF AUSTRALIA
TASMANIAN BRANCH
SPECIAL GENERALMEETING FOR ALL
MEMBERS OF THE
TASMANIAN BRANCH
A Special General Meeting will be held at St
Ailbies Hall, 46 Margaret Street, Launceston
on Wednesday, August 21, 1996 commencing
at 8.30pm. Financial members only will be
required to vote and make decisions –
Please make sure you have
your O.K. card with you
Financial membership checks
will be carried upon entryBuses will leave from Domain
Athletic Centre, Hobart at 6 pm
Showground, Burnie at 6pm
Returning to these desti-
nations at approximately
10.30pm
There was also evidence before his Honour that the Secretary of the Branch sent a letter to each member of the Branch concerning the meeting. There was no evidence, however, of the date upon which the letter was sent.
The special general meeting of the Branch was held on 21 August 1996. The meeting resolved, by forty votes to five votes, to find Mr Hansch guilty as charged. It also resolved by a substantial margin that Mr Hansch’s office be declared vacant.
THE ADVERTISEMENT AS NOTICE
Before Ryan J, it was accepted by counsel for the appellants that the only notice to members was by way of the newspaper advertisements. It was accepted by counsel that, even if the rules permitted notice by the letter, no such notice could be relied upon in this case because there was no evidence of the date of receipt of the letter. Ryan J held that the special general meeting had not been convened in accordance with the rules of the Union. Subrule 51(d) provided that:
“A special general meeting of Members enrolled in a Branch must be called by advertisement in a daily newspaper circulating in the area of the Branch; …”
His Honour held that the notice was deficient because it failed “to indicate, at least in some general way, what the topic or matter” was to be dealt with at the meeting. He stated that:
“Failure to provide adequate information in the notice will result in the meeting not being properly convened and consequently all decisions taken will be void and of no effect.”
His Honour referred to relevant authorities including Campbell v Higgins (1957) 3 FLR 317 and Higgins v Nicol and Ors (1971) 18 FLR 343 and concluded:
“In the present case the notice placed in three regional daily newspapers gave no indication whatever of the business to be discussed at the special meeting. Consequently, persons reading the notice would have been unable to make any judgment about whether the meeting was of concern to them or whether they should attend at all.”
We agree with his Honour’s conclusion that the advertisements did not provide notice in accordance with the rules, and we agree with his Honour’s reasons, set out above, for so concluding.
THE LETTER AS NOTICE
In order to avoid the consequences of the conclusion that the advertisements did not constitute notice of the special general meeting, the appellants contended on the appeal that:
(a)the rules permitted notice by means other than the advertisements referred to in subrule 51(d);
(b)such notice had been given by the letter to members referred to earlier in these reasons, and
(c)the notice had been given in sufficient time before the meeting.
In order to make good proposition (c), the appellants applied for leave to adduce evidence on the appeal of the date of receipt of the letter by the members.
Leave to adduce additional evidence would be granted only if the additional evidence would advance the case of the appellants. We assume the correctness of proposition (a), without deciding that the rules permit notice, otherwise than by way of advertisement, and we assume the correctness of proposition (c) without deciding the issue. Consequently, it is convenient to consider whether the terms of the letter, if received by the members within a reasonable time before the meeting, would have constituted sufficient notice. The letter was in the following terms:
“TO: FINANCIAL MEMBERS AS ADDRESSED
Dear Member,
Re: Special General Meeting – Barry Hansch
My apologies for contacting you again on this matter. I also would prefer this problem did not exist, however, if we are to provide a service to members and a strong Union representation by officials, discipline within our ranks must be maintained as with any employer-employee relationship.
Brief History
In the first instance the Branch Committee of Management formed the view that B. Hansch had abandoned his employment because he walked away from his duties and ignored the directions given to him by his employer, the Branch Committee of Management, regarding attending to his duties.
The Branch Committee of Management position was supported by a decision of the Industrial Relations Court in which the Judge was not prepared to find that B. Hansch had been ready, willing and able to perform his duties with the Union. However, because he was an elected official and the Union did not take steps to dismiss him from that elected position the Court held on the 19th of April 1996 that he continued to be employed by the Union.
B. Hansch did not return to work on the 19 April 1996 despite the Court decision, therefore the Branch Committee of Management charged him with, amongst other things, gross neglect of duty and misconduct. The Branch Committee of Management then cancelled his membership.
B. Hansch appealed to the Federal Council of the Union over his loss of membership and the Federal Council members voted to overturn the Branch Committee of Management decision to cancel his membership.
I am told by both the Federal Secretary and Federal President that the reason they overturned the Branch Committee of Management decision was that it would be hard for B Hansch to obtain another job if he was not a T.W.U. member (they did not address the charges made against B Hansch).
Both the Federal Council, I believe, and the Court decision on the 19 April 1996 make it quite clear that the only way to deal with an elected officer of the Union who does not follow instructions and who blatantly ignores the directions of the Branch Committee of Management, his employer, is to suspend the officer with pay and to have the financial members of the Union deal with the matter by way of a special general meeting to decide the future of that officer.
PLEASE ATTEND AND HAVE YOUR DEMOCRATIC SAY IN THE MATTER
MEETING VENUE: ST AILBIES HALL, 46 MARGARET STREET,
LAUNCESTONTIME: 8.30 P.M.
DATE: 21 AUGUST 1996
BUSES WILL LEAVE FROM DOMAIN ATHLETIC CENTRE, HOBART AT 6 P.M. AND BURNIE SHOW GROUND AT 6 P.M. THE RETURN TRIP WILL LEAVE LAUNCESTON AT APPROXIMATELY 10.30 P.M.
PLEASE NOTIFY US IF YOU INTEND TO COME TO THE MEETING ON HOBART 0418 135 626 OR LAUNCESTON (003) 340 992 TO ENABLE US TO ARRANGE SEATS ON BUSES.
Yours faithfully
Ken Bacon,
BRANCH SECRETARY”
In our view the letter did not give an accurate indication of the business to be transacted at the special general meeting. A member of the Union receiving the letter would be fairly entitled to assume that the meeting had been called merely to consider what penalty to impose on Mr Hansch, given the summary of events indicating that the Federal Council of the Union and the primary judge, in a previous judgment to the one under appeal, had determined that Mr Hansch “does not follow instructions” and “blatantly ignores the directions of the Branch Committee of Management”.
The members were not told what charge had been laid against Mr Hansch. Nor were they informed about the details of the charge. They were not advised that they would be asked to vote to consider whether Mr Hansch was guilty of an offence under the rules of the Union. They were simply informed that they would “decide the future of that officer”, meaning Mr Hansch.
A member is entitled to fair notice of the nature of the decisions he or she will be able, or required, to make at the meeting in question: Campbell v Crawford (1985) 12 FCR 317 at 340; Durham v Ide (1991) 37 IR 94 at 99-100. Such information, amongst other things, is necessary for the member to determine “in his [or her] own interest” (see Cook v Crawford (1981) 52 FLR 1 at 36 per Evatt J) whether to devote the necessary time and inconvenience in attending the meeting. In the case of disciplinary proceedings, this may be of some special importance. Each member has their own right to such notice, and the person in jeopardy has a right to have other members given such notice.
Here, a member in receipt of the letter would not have realised the true nature of the task for members: namely, to determine, without pre-judgment, whether any of particular charges against Mr Hansch was made out and, if so, whether any, and if so what, disciplinary response might be appropriate. Further, even though a task of the second of those kinds was indicated as that of the meeting, the highly partisan terms of the letter suggested that the degree of discretion reasonably available to any sensible member was very minor. Such a member, particularly one from, say, Hobart or Burnie, might very well have thought from the terms of the letter, that the matter was a simple, open-and-shut case, and one not warranting the inconvenience of turning out to Launceston merely to help an inevitable result ensue. Thus, not only the nature of their task, but the potential degree to which their discretion might be engaged, was not fairly represented to the members.
As the terms of the letter would not have given members the necessary notice of the matter to be dealt with by the special general meeting, the additional evidence purporting to establish the date of receipt of the notice would not advance the case of the appellants. Consequently, we refuse the application for leave to adduce such evidence. In light of this conclusion, we also refuse the application to adduce further evidence on appeal concerning receipt of notice by Mr Hansch. The appellants cannot succeed in view of the finding that the notice given to the members was not given in accordance with the rules.
DENIAL OF PROCEDURAL FAIRNESS
At the commencement of the hearing of the appeal, counsel for the appellants sought leave to amend the notice of appeal by adding a further ground as follows:
“That the judgement of Ryan J given on the 25th May 1998 be set aside and that this Honourable Court either remit the proceedings for further hearing and determination or grant a new trial on the ground that the Appellants were not afforded procedural fairness in the trial before Ryan J in that His Honour determined the matter on the basis of findings which were neither sought nor argued by the Respondent.”
As previously explained, Ryan J held that the special general meeting was void because the advertisements were the only notice given and they did not comply with the requirements of subrule 51(d), in that they did not specify the nature of the business of the meeting. Ryan J also held that the advertisements did not give Mr Hansch or the members notice within a reasonable time of the meeting. The proposed amendment to the grounds of appeal asserts that counsel for Mr Hansch did not seek a finding or argue that the meeting was void on these grounds.
It is true that counsel for Mr Hansch did not seek these findings at the trial or argue that the advertisements did not comply with the requirements of subrule 51(d). His case was that the appellants had denied him natural justice by not providing particulars of the charge against him either before or at the meeting. However, in the course of the appellants’ submissions before Ryan J, the following exchange occurred:
“HIS HONOUR: Well, what do you say about the requirements of the rules as to the period of notice? My understanding is that there is no period specified.
MR READ: No.
HIS HONOUR: So presumably the implication is that it has to be a reasonable period?
MR READ: Yes, I am content with that. I will go that far. Now, then the question arises, was it reasonable? And that could be judged from the fact that there has been no complaint from Mr Hansch that he was in any way prejudiced in his defence by the lack of time. And secondly, of those two persons who telephoned him that he gives specific evidence about in the more general evidence, was not – the complaint was not, “Well, look, we haven’t had enough notice”. It was, “We can’t make it on Wednesday nights. It ought to be in Hobart, or it ought to perhaps be at the weekend.”
So the complaints that were made, the prejudice that was alleged, and the lack of procedural fairness was not, “We haven’t had enough time” and I submit that if there was to be a finding of any procedural – any lack of procedural fairness that at least would need to be based on some evidence that there was some consequence from short notice.
HIS HONOUR: Well, it is not so much a question of fairness, it is a question of compliance with the rules – if you accept that it is an implied term of the rules that notice should be given was in effect, 48 hours notice, appropriate or reasonable.
MR READ: Yes, well, it is probably, in effect, more like 60 hours, your Honour, but if we are going to be splitting hairs as to that, it depends when you pick up your newspaper and indeed whether you open it at the right page, but the only additional evidence about that before I specifically answer your Honour about it, is annexure DD, but it does not help you because it is not dated. That is the letter to members that goes out. Unfortunately, it is not dated and indeed Mr Bacon’s affidavit does not give it any date and it just simply says:
‘Annexed, marked DD, is a copy of a letter I sent to all members with respect to the meeting of 21 August ’96.’
That letter has some importance in terms of the way in which the members at the meeting may have informed themselves because they would be entitled to take into account those matters which do fall within that letter, but there is no indication within it that – as to when that letter was sent. Now, your Honour is therefore left with the advertisements on 19 August, the advertisements on 20 August which in my submission are reasonable notice in the absence of any complaint in relation to it.
Now, I understand your Honour’s point, well, the rules need to be complied with and absent complaint, they still need to be complied but one method of judging what a reasonable period might be within this union is to gauge whether there has been any complaint about it and there has not.
HIS HONOUR: Well, the other question, I suppose, is that the rules speak of notice of a special general meeting. Rule 51 provides for special general meetings to be called at any time by the branch president or branch secretary and then there is the requirement that it must be called by advertisement in the daily newspaper circulating in the area of the branch. The question is whether an advertisement which simply gives notice of a special general meeting complies with the rule if, as these advertisements seem to do, it fails to indicate the business of the meeting?
MR READ: Well, I submit there is no requirement in the rule to advise in the paper of the business of the meeting. It is the fact of the meeting which must be notified in the newspapers pursuant to rule 51(d) and in …..
HIS HONOUR: It is designated “a special meeting”?
MR READ: Yes, and it is designated in the newspaper “a special meeting”.
HIS HONOUR: Oh, yes, but it is designated in the rules as “a special meeting” in contra distinction with an ordinary general meeting. I can understand if this were a notice of an ordinary general meeting, there would be no requirement to indicate the business, and one would go to rule 53 to indicate what was to happen, sorry, 53(2), I think, but the view could be taken that a special meeting is a meeting convened to deal with some special topic and that in order to be effective the notice has to indicate at least in some general way what the topic is.
MR READ: It is only the last part of what falls from your Honour that I take issue with. Certainly, the fact that it is special does require something special and that is a notice in the newspaper of the fact of the meeting. You see, in my submission, an ordinary general meeting does not require notice in the newspaper. Because it is special it gets that special requirement. Now, had the rules contemplated basically a need to outline the business of the meeting the rules would in addition, or within (d), have set out “and it shall state the business of the meeting” but all that is required, I submit is the fact of the meeting to be advertised.”
Thus, the construction of subrule 51(d) and the period of notice were in issue. Counsel for the appellants responded to the arguments outlined by his Honour, and did not seek to reopen his case or seek any adjournment on the ground that he was unprepared to answer the points. The appellants contended that Ryan J should have invited the appellants to call further evidence or to put further arguments. The applicable approach was referred to by Brennan J in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 308:
“A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue. However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends. Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms different from the terms of a submission by counsel but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be relisted for further argument and without inviting supplementary submissions to be made.”
In Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220, Gaudron J said:
“As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled.” And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers’ Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; ALR 353 at 358.” (emphasis added)
And in Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213, the High Court said:
“Outside a criminal trial, there is no requirement that a judge or member of a tribunal do more than afford a party a reasonable opportunity to present his or her case. In particular, there is no requirement to point to arguments or evidence that may assist in making the case.”
The appellants had an opportunity to call further evidence as to the time of receipt of the letter. They chose not to do so. There was no procedural unfairness in these circumstances. Similarly, the appellants addressed argument on the construction of subrule 51(d). They did not seek any further opportunity. There was no denial of procedural fairness by the trial judge not inviting further submissions. As the ground sought to be added to the notice of appeal is bound to fail, we refuse the appellants leave to amend the notice of appeal.
For the foregoing reasons, the appeal was dismissed and orders made to that effect.
| I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Full Court |
Associate:
Dated: 7 September 1998
| Counsel for the Applicant: | Mr K E Read |
| Solicitor for the Applicant: | Jennings Elliott |
| Counsel for the Respondent: | Mr J Green |
| Solicitor for the Respondent: | John Green |
| Date of Hearing: | 7 August 1998 |
| Date of Order: | 7 August 1998 |
| Date of Publication of Reasons: | 7 September 1998 |
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