Troja, F. v Curran, W
[1989] FCA 237
•12 MAY 1989
Re: FRANK TROJA
And: W. CURRAN; J. BRUNT; L. MacDONALD; N. McDONALD; W. CHRISTENSEN;
R. DILLON; D. DOHERTY; P. DAVEY; S. FIELD; J. RISTEVSKI; L. STANLEY;
J. LAMONT; T. PATAKI; L. BURLEY; R. JONES; W. KERRIGAN; P. MORRIS;
J. KONDARIOS; A. JAMES; J. FLYNN; J. PYSING; W. WHITING; M. STURGESS;
T. BULETICH; V. WATT; K. ANDREWS; P. CROCKER; N. PETCH; T. DEUIS and
I. STRINIC
No. VI 6 of 1988
FED No. 237
Industrial Law
30 IR 129
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)
CATCHWORDS
Industrial Law - trade union committee of management sitting as domestic tribunal - expulsion of member - whether failure to give member notice of letter given to tribunal by prosecutor a breach of the rules of natural justice - discretion of court - construction of s. 209(3) of the Industrial Relations Act 1988
Conciliation and Arbitration Act 1904 s. 141
Industrial Relations Act 1988 s. 209
HEARING
MELBOURNE
#DATE 12:5:1989
Solicitor for Applicant : A. J. Macken & Co.
Counsel for Applicant : Mr. Timothy Ginnane
Solicitor for Respondents : Ryan Carlisle Needham & Thomas
Counsel for Respondents : Mr. Michael Black Q.C. and
Mr. Anthony North
ORDER
The respondents, W. Curran, J. Brunt, L. MacDonald, N. McDonald, W. Christensen, R. Dillon, D. Doherty, P. Davey, S. Field, J. Ristevski, L. Stanley, J. Lamont, T. Pataki, L. Burley, R. Jones, W. Kerrigan, P. Morris, J. Kondarios, A. James, J. Flynn, J. Pysing, W. Whiting, M. Sturgess, T. Buletich, V. Watt, K. Andrews, N. Petch, T. Deuis and I. Strinic and each of them perform and observe the Rules of the Australasian Meat Industry Employees Union by treating as null and void the following resolutions which were carried at a meeting of the Committee of Management of the Victorian Branch of the Union on 5 December 1985:
"(a) That Comrade Troja be found guilty as charged.
(b) That F. Troja be expelled from the Union under Rule 64."
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
JUDGE1
On 5 December 1985 Frank Troja ("the applicant") was a member of the Australasian Meat Industry Employees Union ("the Union"), which was an organisation of employees registered under the Conciliation and Arbitration Act 1904 ("the previous Act") and is a registered organisation under the Industrial Relations Act 1988 ("the new Act"). On that day the Committee of Management of the Victorian Branch ("the Branch") of the Union, acting under Rule 64, found the applicant guilty of assaulting Walter Curran, the Secretary of the Branch, on 24 October 1985, whilst Walter Curran was engaged on the business of the Union. The Branch Committee of Management decided that the applicant should be expelled from the Union under Rule 64.
Mr. Timothy Ginnane, of counsel, appeared for the applicant; Mr. Michael Black of Queens Counsel and Mr. Tony North of counsel appeared for the respondents other than Mr. Crocker ("the respondents"). No order is now sought against Mr. Crocker; the court was informed that he has died.
The applicant obtained from Gray J., under s. 141 of the previous Act, a rule to show cause which, by reason of s. 52 of the Industrial Relations (Consequential Provisions) Act 1988, must be heard and determined under s. 209 of the new Act. He seeks orders that the respondents perform and observe the rules of the Union by treating as null and void the following resolutions ("the resolutions") of the Committee of Management of the Victorian Branch of the Union on 5 December 1985:
"(a) That Comrade Troja be found guilty as charged.
(b) That F. Troja be expelled from the Union under Rule 64."
The charge of which he was found guilty was:
"That Frank Troja, being a member of the Australasian Meat Industry Employees' Union did assault Walter Curran, the Secretary of the Victorian Branch of the Union at or about 8.00 am on Thursday, 24th day of October, 1985 whilst the said Walter Curran
(was) engaged on the business of the Union."
Rule 64 included the following provisions:-
"(2) The Committee of Management ... may expel, suspend or fine (such amount not to exceed five hundred dollars
($500)) any member who assaults, hinders, or in any way interferes with an officer or member of the Union whilst such officer or member is engaged on the business of the Union ...
(3)(a) A member charged under this rule shall be given every opportunity to defend himself and may, if he wishes, tender written submissions."
There was a conflict of evidence as to what occurred at the meeting of the Committee of Management at which the applicant was expelled on 5 December, 1985. It is convenient to refer to that meeting as "the meeting", notwithstanding references in the evidence to other meetings, which will be identified by reference to the dates on which they were held. The evidence of Mr. Troja on a number of matters has been denied by Mr. Paul Davey, the eighth-named respondent who is and was an elected organizer of the Branch and a member of both the Committee of Management and the Executive of the Branch; he was the only respondent who gave evidence.
Mr. Troja's evidence was criticised in detail by the respondents' counsel. In general I accept the evidence of Mr. Davey where it conflicts with that of Mr. Troja, who said that his memory was "not too good"; during his evidence he was unable to recall whether certain matters had occurred and as to those matters also I accept Mr. Davey's evidence. Mr. Troja's memory difficulties are not surprising having regard to the fact that the meeting occurred in December 1985 and his evidence was given in April 1989; in fairness, it may be added that on a number of matters Mr. Davey was similarly "unable to recall", or did "not recall", or was "not sure" or was "not entirely sure".
Although Mr. Troja's evidence was unsatisfactory on a number of matters, in my opinion he was not seeking to give untruthful evidence to the court; nor do I accept Mr. Black's submission that he had not been candid on oath. In cross-examination, Mr. Davey, in reply to a question whether he regarded Mr. Troja "as being a person who does not tell the truth all the time?", answered "No. I would not say that. I would say that I regard Mr. Troja as someone ... who can be forgetful on occasions and I think he possibly has lapses of memory, as indeed he gave evidence yesterday. ... I think sometimes he does not tell the truth but I am not sure whether he does it deliberately or not."
It was not disputed that the following letter ("the letter"), dated 29 October 1985, was sent by Mr. Curran to each member of the Branch Committee of Management and was received by them about one month before the hearing of the charges at the meeting. That letter was not sent to the applicant.
"Australasian Meat Industry Employees Union W.J. Curran, State Secretary M. McPike, Assistant Secretary A. Bird, President
To all Committee of Management Members Dear Comrade,
(1) I write to inform you of a most serious matter, as far as I am concerned as an individual and a member of the Union, and as a Union official acting in that capacity.
(2) I am also concerned, because of a number of inquiries received by myself and other officials, that you, as a member of the Committee of Management, are authoritively advised of this matter, so that the rights of the other party is respected and protected.
(3) The problem is between myself and Comrade F. Troja, and also involves members of the Shop Committee at Richmond.
(4) On Thursday the 24th of October, I, with Comrade Rod Dillon, met with the Shop Committee at Richmond at 7 am That meeting discussed the contents of the report that had to be put to a general meeting that morning about the re-opening of the Richmond works.
(5) The Shop Committee and Comrades Curran and Dillon had had discussions with the company on Friday the 18th, and at that conference, some twenty-odd points were raised, either statements of the Shop Committee or matters that required an answer by the company.
(6) On Monday the 21st., Smorgon's management discussed with Comrade Jim Kondarios, Works Delegate, the matters discussed on the Friday, and gave the necessary final answers to the outstanding matters.
(7) The matters stated by the Shop Committee, Curran and Dillon on Friday the 18th, as well as the matters discussed with Jim Kondarios, Works Delegate, on Monday the 21st., were to be the basis of the report to be given by Comrade Curran to the meeting.
(8) During the course of the meeting, Comrade F. Troja made some interjections and was told, on at least two occasions, to stop his behaviour that was causing disruption of the meeting. Comrade Troja continued to ask questions, but in point of fact was making a statement alleging the Union and Curran had done nothing about a number of matters, including redundancy, and did not get him, Troja, redundancy at Angliss's and matters relating to Work Care. In this matter, he was suggesting the Union and the Shop Committee owed an apology to certain nembers at Richmond who had taken light duties instead of first being on compensation.
(9) The statement that was made relevant to this matter was explained to Troja by Curran, twice at least. The report had not been finished, and these actions of Troja were seen as un-needed interruptions.
- (page) 2 -
(1) Comrade Troja, on the last interjection, got to his feet, calling Comrade Curran a liar and saying we were misleading the members at the meeting. I asked Troja to sit down, the actual remark being something like "Sit down you fool and stop disrupting the meeting as this is a serious meeting and time will be made to ask questions". Troja sat down, and after what seemed about a minute, he got to his feet and stated "Don't you call me a fool you fucking idiot, - I will fix you]".
(2) He then came to the area where I was standing. I thought he was going to take over the microphone as he has done this to me at Richmond on more than one occasion. Instead, he launched into a fierce, uncontrolled physical attack on me. Members of the Shop Committee jumped in and attempted to pull him off me, and in doing that, Comrade Kondarios was struck a blow on the mouth and other members of the Shop Committee were set on and a general brawl type situation developed, with Troja striking out at those who were trying to restrain him. I myself suffered no physical injury except for sorness on the shoulder and in the middle of the back area.
(3) The Shop Committee discussed the incident after they had finalised the business and closed the meeting, which took around some thirty-odd minutes, and at that meeting they asked what I and Dillon were going to do. I stated that I would be calling a meeting of the Executive members that were available in the afternoon, and I would be putting to the Executive that neither I, nor any of the Executive, would attend a general meeting or sectional meeting that Comrade F. Troja was at on the Richmond plant, as I would not allow myself, or any other Executive member, to be exposed to further threats of violence or actual violence as experienced that day, and that I had had enough of the constant threats made by F. Troja, publicly and privately, directed at my personal welfare, and that I would be laying charges against F. Troja under the rules of the Union. (emphasis added)
(4) The Shop Committee listened to what I had to say, then stated that they intended to discuss the matter, which they did, and resolved the following: "At a general meeting today of members of the Union at Smorgons, Richmond, to consider the reopening of the plant, Secretary W. Curran was violently assaulted by Comrade F. Troja. Other members who went to protect Secretary Curran were also assaulted. Secretary Curran was addressing the meeting at the time of the assault. In view of the long established principle that members of the Union on a plant will not work with a member who has assaulted another member or members on the plant, the Shop Committee resolves that the Company Management be informed of Comrade F. Troja's conduct and that Comrade Troja is not to be re-employed."
(5) I have notified the Executive that I intend to charge Troja under the rules of the Union and will seek immediate legal advice.
(6) These are the relevant facts and are only put to you so as to enable you to be fully aware of the circumstances as, as in past actions of Comrade Troja, and as indeed is his right, he may feel he is entitled to seek advice or assistance.
(7) Nothing in this report is to be interpreted as having been written with the intent to influence you in any way as to the rights or wrongs of the writer's action, or that of the Shop Committee or F. Troja.
(8) The Committee of Management will be advised officially, in due course, as to the laying of the charge and the supportive reason. - (page) 3 - I trust this correspondence will serve to stop any misrepresentation of the facts, as often happens when it is only by rumour that an event can be related. Yours fraternally,
(Signature)
W. Curran
Secretary"
(It should be explained that the numbers set out in brackets preceding the paragraphs in the above letter did not appear in the letter; they have been inserted in these reasons for judgment because the affidavit evidence referred to those paragraphs as if they had been so numbered).
The applicant's primary submission, as set out in its written contentions filed 11 May 1988, was that he was denied natural justice by the Committee of Management, in that he was given no prior notice of the serious allegation in the letter (paragraph (3) on page 2) as to alleged "constant threats ... publicly and privately" by the applicant to Mr. Curran before the alleged assault; further, that he was not afforded a reasonable opportunity to respond to that allegation of "constant threats".
Before dealing with that major issue it is convenient to deal briefly with two other matters which first appeared in the applicant's amended contentions, filed 29 March 1989. They were as follows:-
"(f) The Applicant was not given a proper opportunity to address the question of what (if any) penalty should be imposed upon him pursuant to the rules.
(g) The Respondents wrongly refused to admit the evidence of a photograph taken of the applicant on the day after the assault showing the injury suffered by him on 24 October 1985."
As to paragraph (f), I accept Mr. Davey's evidence where it conflicts with that of the applicant. On that evidence I am unable to uphold the applicant's contention that he "was not given a proper opportunity to address the question of what (if any) penalty should be imposed upon him pursuant to the rules". As to paragraph (g), on the evidence I am not prepared to find that the respondents refused to admit the photograph.
As to the applicant's primary submission, there was a substantial conflict of evidence before the court as to what evidence had been given by Mr. Curran at the meeting. I accept Mr. Davey's evidence that, with the exception of paragraphs numbered 1, 2 and 3 on page 1 of the letter, paragraphs 5, 6, 7 and 8 on page 2 and the single paragraph on page 3, Mr. Curran read to the meeting the contents of the letter. I also accept his evidence that, in reading those parts of the letter, Mr. Curran was "speaking in a fairly rapid manner" and that the giving of evidence in general at the meeting was at "the same kind of pace as we are dealing with matters now" i.e. during his cross-examination, which was being conducted quite rapidly.
I accept Mr. Troja's evidence that until 1988 "I had never seen a copy of the letter and I was unaware of its existence". I find that at the time when he left the meeting the applicant was unaware that the letter had been sent to the members of the Committee of Management; further, that he was unaware that Mr. Curran had read to the meeting from such a letter, notwithstanding that Mr. Curran had done so, and was unaware that Mr. Curran had said (or read) anything to the meeting about "being threatened by (Mr. Troja)". Neither he nor any member of the Committee of Management put any question to Mr. Curran as to the allegation that there had been "constant threats made by F. Troja, publicly and privately, directed at (Mr. Curran's) personal welfare" (paragraph (3) on page 2 of the letter). It took Mr. Curran less than ten minutes to give the whole of his evidence, including the reading of those passages from the letter and his elaboration of various matters in it.
I find that Mr. Curran's reading of the allegation of "constant threats ... publicly and privately" - in such a way that Mr. Troja was unaware of it - did not constitute proper notice of the allegation, there having been no prior notice to Mr. Troja. I am satisfied that in the circumstances the applicant was not afforded a reasonable opportunity to respond to that allegation. It was, as Mr. Davey agreed "a most serious allegation"; it was likely to influence the members of the Committee of Management in considering the question whether the applicant had assaulted Mr. Curran (as charged) or had himself been assaulted by Mr. Curran and other persons (as Mr. Troja contended). In addition, the allegation was likely to influence them on the question of whether the assault was such as to warrant the maximum penalty of expulsion, instead of suspending him or fining him under rule 64(2). In my opinion it was plainly a very serious allegation that was adverse, relevant and significant as to the decision to be made by the Committee of Management - see Kioa v The Honourable Stewart John West and the Commonwealth of Australia (1985) 159 CLR 550 at 569 (per Gibbs C.J.), 587 (per Mason J.), 602 (per Wilson J.), 628 and 629 (per Brennan J.) and 634 (per Deane J.).
I reject the respondents' submission, based upon statements by Mr. Curran in the letter, that "Mr. Curran had a duty to put an end to speculation and rumours and to inform the Committee of Management of the facts". On the evidence I am not satisfied that there was any need for the "information" in the letter to be given to its members before the meeting on 5 December 1985 which considered the charge laid against Mr. Troja.
In my opinion the applicant was denied natural justice at the meeting in that he had no prior notice of a very serious allegation, namely that he had made "constant threats ... publicly and privately, directed at (Mr. Curran's) personal welfare" and in all the circumstances was not given a reasonable opportunity to respond to that allegation. It follows that he was not "given every opportunity to defend himself", as required by rule 64(3)(a), the terms of which have been set out. At the conclusion of his final address Mr. Black said that the case depended on where the true merits lay on the question "was Mr. Troja taken by surprise ... of such a magnitude that he was denied natural justice" by the allegation of "constant threats ...". In my opinion that question must be answered "yes" on the evidence before the court.
I accept Mr. Ginnane's submission that that denial of natural justice was not remedied by the applicant's failure to ask the Committee of Management for an adjournment to enable him to consider the allegation and prepare a defence. The members of the Committee of Management were obliged to afford him natural justice and, under rule 64(3)(a), to give him "every opportunity to defend himself". The applicant's rights were not lost by reason of his failure, for whatever reason, to apply for an adjournment - see Barnes v Oliver (1970) 16 FLR 366 at 395 per C.A. Sweeney J. with whose reasons for judgment Spicer C.J. and Kerr J. agreed. It was pointed out by Mr. Ginnane that Mr. Troja was not cross-examined as to his failure to seek an adjournment. Mr. Black put it in his final address that the applicant was "experienced and capable". In one sense it may be correct to so describe him, having regard to his mature age and his experience as a member of the Union. However, on the evidence I am satisfied that he was not given prior notice of the allegation that he had made "constant threats", was not given adequate notice of it at the meeting and was not given a reasonable opportunity to respond to it.
Mr. Ginnane asked the court to infer that Mr. Curran, in sending the letter to the members of the Committee of Management, did so with the intention of persuading those members of the truth of his account of what had occurred and of prejudicing the applicant at the meeting. I accept Mr. Black's submission that such an intention, if it existed, would not be relevant in these proceedings. However, if, contrary to my opinion, Mr. Curran's intention is a relevant matter, then I would infer that his intention, in drafting and sending the letter, was to prejudice Mr. Troja in the eyes of the members of the Committee of Management who would hear the charges; at the time of writing the letter Mr. Curran had already decided that he would be laying charges against Mr. Troja under the rules.
If (contrary to my opinion) I had considered Mr. Curran's intention to be relevant and had drawn such an inference as to his intention, I would have rejected the respondents' submission that "Mr. Curran's letter made it plain that the Committee was not to be influenced by the letter". The letter could have given all the necessary information without including the passage (paragraph (3) on page 2) as to Mr. Troja's alleged "constant threats", if Mr. Curran had wished to avoid prejudice to Mr. Troja and had intended to do no more than perform his duty, as Branch Secretary, to keep the Committee of Management members informed. It may be added that no reason has been advanced as to why the letter could not have been sent to Mr. Troja at the same time - or at least at a time that would have given him a reasonable opportunity to consider the allegation of "constant threats" by him, to ask for particulars of those threats and respond to the allegation.
In dealing with Mr. Curran's action in sending the letter to the members of the Committee of Management, the respondents relied upon the following passage from the reasons for judgment of J.B. Sweeney and St. John JJ. in Cains v Jenkins (1979) 28 ALR 219 at 226:-
"In view of the arguments formulated by counsel for the appellant it is desirable to make some general observations as to the application of rules requiring adherence to the principles of natural justice by tribunals generally. Firstly, there is a different approach, depending upon whether the tribunal hearing the charges is statutory or consensual in origin. In broad terms a more stringent test is applied to the former than to the latter. To the statutory tribunal the law applies a test basd on the appearance of fairness; a reasonable suspicion of unfairness generated in an assumed informed observer is sufficient to nullify the proceedings. In the case of the consensual tribunal the reality is considered; the question is whether in all the circumstances natural justice was done. There are of course differing standards of natural justice to be applied in the case of different types of each type of tribunal."
In my opinion those observations as to "a different approach ... (where) the tribunal ... is ... consensual in origin" were directed to the objection by the applicant in that case, (referred to at p 224 of the report) to the presence on the tribunal of certain persons "on the grounds that they were so prejudiced against the claimant as to be unable to give the appellant a fair hearing"; the observations were directed towards the constitution of the tribunal - not to its conduct of the hearing. One aspect as to the conduct of the tribunal (as to whether Mr. Romanin, an articled law clerk, could represent the applicant) was dealt with separately, but I do not understand their Honours to have enunciated a principle that there is a lower standard of fairness required of a consensual tribunal. Their reasons for judgment contain an emphatic denial of any such intention. After stating that "they remain tribunals with a consensual base as referred to in ... Bowen's case", their Honours said (at 230):-
"We emphasize, if emphasis be necessary, that we are not to be taken to be reducing the level of care, consideration and fairness that must characterize the hearing and adjudication of a trade union committee, especially when exercising powers of dismissal of officers or expulsion."
If the reasons for judgment are stating, contrary to my understanding of them, that a lower standard of procedural fairness is required of a consensual tribunal, then, having regard to the issues that were before the Full Court in Cains v Jenkins (supra), in my opinion the statement was made obiter and, with very great respect, I am not prepared to follow it.
The respondents also sought to rely upon the decision in Australian Workers Union v Bowen (1948) 77 CLR 601 (cp. Annamunthodo v Oilfields Workers' Trade Union (1961) AC 945) as to the effect of an appeal in that case to the A.W.U. Convention by the persons expelled. In that case Dixon J. said (at 632) that the convention "is the supreme authority in the union ... I think that under the rules the decision of the convention gave a fresh authority to the dismissals" (i.e. expulsions). In my opinion that statement does not assist the respondents because, on the evidence in the present case, the appeal was not determined by the Federal Council which (subject to "the members of the Union") has vested in it "the supreme control (of the Union)". Nor was it determined by the Federal Executive in a way that could be said to give "a fresh authority to (the expulsion of Mr. Troja)"; instead, the Federal Executive treated the appeal as having lapsed "for want of prosecution".
For the foregoing reasons I uphold the applicant's primary submission, that he was denied natural justice by the members of the Committee of Management in that he was not given prior notice of the allegation that he had previously made "constant threats" to Mr. Curran, he was not given adequate notice of that allegation at the meeting and he was not given a reasonable opportunity to respond to it.
Having so decided, it is not necessary for me to deal with a closely related submission by Mr. Ginnane. It was based upon the fact (which I find) that certain members of the tribunal (including Mr. Davey) had, at a meeting of the Branch Executive on 24 October 1985 (see exhibit "E"), heard Mr. Curran's report on the alleged "violent physical attack by F. Troja on Secretary Wal Curran and R. Dillon and members of the Richmond Shop Committee"; the Branch Executive resolved to advise the company "that it will not allow any Official to officiate at any meeting at which F. Troja is in attendance at the Richmond works". This submission was also supported by reference to the evidence, at the meeting on 5 December 1985, given by Mr. Kondarios, that he too had been struck by Mr. Troja at the meeting of members on 24 October 1985; it is clear that no notice of that allegation had been given to Mr. Troja before the meeting which resolved to expel him. The submission was supported by reference to the decision of J.B. Sweeney J. in O'Donoghue v Griffin (1979) 41 FLR 197 at 202 (see also the passages from Kioa which have been cited earlier in these reasons for judgment).
Mr. Ginnane, on behalf of the applicant, advanced an additional submission. It was that the resolutions were vitiated because the conduct of the proceedings on 5 December 1985 by the members of the Committee of Management - as distinct from the constitution of that Committee - was such that a reasonable, fairminded observer, with the appropriate knowledge, would reasonably suspect that the members of the Committee were biased against the applicant. He contended that that submission is not contrary to the decision of the Full Court in Cains v Jenkins (supra); he has also submitted - formally, before me, as a single judge bound by that decision - that Cains v Jenkins should not be followed. He relied upon the reasons for judgment of Samuels J.A. and of Mahoney J.A. in Dale v NSW Trotting Club Ltd. (1978) 1 NSWLR 551 at 559 and 560-1. As I have upheld the applicant's primary submission that he was denied natural justice, it is not necessary for me to express an opinion upon this additional submission as to Dale's case.
The respondents asked the court to exercise its discretion against making the orders sought. It was held under the previous Act that the court had such a discretion but that it was "only in rare cases that the court refuses an order" per Smithers J. in Cook v Crawford (1982) 62 FLR 34 at 69; a similar view was expressed in that case by myself (at 82) and Sheppard J. said (at 123) that the court ought not to "refuse relief to an applicant ... unless there be some good and cogent reason associated with the granting of that relief why the court should refuse to act". Mr. Black on behalf of the respondents (transcript p 320) accepted that, if the court found that "Mr. Troja did not have any reasonable opportunity to know (of the letter)" and that the applicant had been denied natural justice, then, in the absence of an express statement in the previous Act, it would be very difficult for him to argue that the discretion should be exercised against the applicant; he did not seek to rely - and, in the light of my finding that the applicant was not aware of the existence of the letter until 1988, in my opinion he could not rely - upon the lapse of time between the resolutions (in December 1985) and the institution of these proceedings on 19 April 1988.
Mr. Black relied upon s. 209(3) of the new Act, which provides as follows:
"209(3) The Court may refuse to deal with an application for an order under this section 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."
That subsection was referred to during Mr. Ginnane's opening address and the court raised the question of whether it should be dealt with as a preliminary point. Mr. Ginnane and Mr. Black both submitted that it should not be dealt with as a preliminary point in this case and the hearing proceeded on that basis.
Mr. Black accepted that the subsection does not require, expressly or impliedly, that a member take "all reasonable steps to try to have the matter the subject of the application resolved within the organisation". However, he submitted that the legislative policy was "that, prima facie at least, matters should be dealt with internally" and that the court, in exercising the discretion, should decide "what is the fair thing ... having regard to the prima facie policy".
After reflecting on the matter since the completion of the hearing, I have concluded that the subsection is intended to confer upon the court the discretion, which it did not previously have, to "refuse to deal with" an application "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". The words "refuse to deal with an application" are intended to empower the court, where it is not so "satisfied", in the exercise of its discretion to either refuse to hear the substance of an applicant's case or, where a full hearing has taken place, to refuse the relief sought. In my opinion the subsection confers an additional discretion and does not take away the discretion, which existed under the previous Act, to refuse to make orders after hearing the case.
I am not prepared to uphold Mr. Black's submission that subsection 209(3) of the new Act is intended to convey that there is a legislative policy that prima facie matters should be dealt with internally. In my opinion Parliament, in using the words appearing in s. 209(3), did not intend to place such a fetter upon the discretion which it was expressly conferring upon the court.
Applications under s. 209 may relate to a wide range of matters - as they did for many years under s. 141 of the previous Act. The circumstances relating to an application may be such that it is a matter of great importance to the applicant member and/or to the organisation and/or to the membership of the organisation that there be a speedy and final determination by the court on the matter the subject of the application. Those circumstances might be more likely to exist - although they would not necessarily exist - in respect of applications by (a) a member claiming that a returning officer had invalidly rejected his nomination as a candidate for office, (b) a member contending that a rule conferred on him rights which the respondents contended did not exist, (c) a member claiming that there had been a denial of natural justice in his "removal from office" within the meaning of s. 195(1)(c) of the new Act (s. 133(1)(f) of the previous Act) and (d) a member claiming that an organisation, or one of its branches, is proposing to expend Union funds and that it is not authorised to do so.
On the other hand, applications under s. 209 may relate to matters which, because they are less important or less urgent or, by reason of other circumstances, appear to be more suitable for resolution within the organisation. The nature of the matter to which the application relates may be such that the respondents should not be put to the expenditure of time and money involved in a hearing by the court. For example, on one occasion the court was asked to make an order directing a branch secretary to answer a letter (one of a substantial number by the applicant); the application was based upon a rule providing that it was part of the secretary's duty to deal with correspondence.
In my opinion, the legislative intention is that the court should consider whether "the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation" and that it must do so before it can exercise its discretion under s. 209(3). If it is not so satisfied, the court may, in its discretion, conclude that it should refuse to hear the substance of an applicant's case because of the nature of the application or because of other relevant considerations - but it is not obliged to exercise its discretion in that way.
In my opinion the court's discretion is not fettered by reason of the words in s. 209(3) relied upon by the respondents. If it is not "satisfied that the applicant has taken all (such) reasonable steps", it is then empowered, in the exercise of its discretion, to "refuse to deal with (the) application". In considering whether it should so exercise its discretion, the court is required to give such weight as it considers appropriate to its finding that it is not "satisfied", the circumstances surrounding the applicant's failure to take all reasonable steps and all other matters which are relevant to the exercise of that discretion.
It was submitted by Mr. Ginnane that the applicant had taken all reasonable steps by lodging an appeal to Federal Council, which was not dealt with by Federal Council but by the Federal Executive. Mr. Ginnane submitted that that body had no power to deal with the appeal because rule 64 - the rule under which the applicant was charged, found guilty and expelled - expressly conferred upon him a "right of appeal to Federal Council".
Under rule 11(d) the Federal Council only meets regularly at intervals of two years, although it is possible for a special meeting to be "requisitioned by at least three Branches of the Union" (rule 11(f)). The respondents contended that the Federal Executive had power to deal with Mr. Troja's appeal; they relied upon paragraph 2 of rule 14 which reads as follows:-
"The Federal Executive shall have and may exercise all the powers of the Federal Council between meetings of the Federal Council."
Under rule 14 the Federal Executive meets "in the alternate year to Federal Council" but paragraph 1 of that rule provides that meetings of the Federal Executive shall be called when decided by "the Federal Secretary in conjunction with the Federal President ... when requested in writing by any four members of the Federal Executive". It is clear that a meeting of Federal Executive can be held more readily than a meeting of Federal Council.
There is no single rule setting out in numbered items all of the powers of Federal Council. Powers are conferred on Federal Council by a number of rules including rules 8, 9, 11, 13A, 19, 23, 29(2), 36(1) (2) and (3), 46, 58(d) and 62. Other rules expressly provide for an appeal to Federal Council:- 9(4), 37(3), 42(5), 43, 63 and 65 (see also rule 23). Mr. Ginnane's submission that only Federal Council could hear the applicant's appeal under rule 64(3)(d), if upheld, would seem to involve holding that every appeal under rules 9, 37, 42, 43, 63 and 65 would have to be heard and determined by Federal Council. In my opinion paragraph 2 of Federal Rule 14, construed in the context of the rules as a whole, conferred upon Federal Executive the power of the Federal Council to hear the applicant's appeal under rule 64(3)(d). Accordingly I am not able to uphold Mr. Ginnane's submission that the Federal Executive had no power to deal with Mr. Troja's appeal.
The applicant had difficulty in remembering the subsequent progress of his appeal to the Federal Council. He could not recall receiving a letter, dated 17 March 1986, from the Federal Secretary that it would be heard by the Federal Executive on 1 May 1986. I accept the affidavit evidence of Mr. O'Toole that the letter was sent and infer that it was received. Although the resolution, as recorded in the minutes of the decision of the Federal Executive on the appeal, was not clearly expressed, I find that the appeal was treated as having lapsed "for want of prosecution". As I have held that the Federal Executive had power to deal with the appeal, and as Mr. Troja did not pursue that appeal, I am not "satisfied that the applicant has taken all reasonable steps to try to have the matter ... resolved within the organisation".
The next question is whether the discretion should be exercised against the applicant. During the period preceding the decision, on 1 May 1986, of the Federal Executive as to the appeal, the applicant was not aware - and could not have been aware - that any failure by him to pursue his appeal might result in the court refusing to deal with any application he might bring under s. 141 of the previous Act (s. 209 of the new Act). It was not possible for him to have had any such knowledge in 1986, having regard to the decisions of this court dealing with s. 141.
The previous Act contained no provision in the form of or to the effect of s. 209(3) of the new Act. That Act was not assented to until 8 November 1988 but s. 209(3) applies to the present application, made in April 1988, because it had "not been finally dealt with" before 1 March 1989 (see s. 52(1) of the Industrial Relations (Consequential Provisions) Act 1988). As to the reasons for the delay in the application being heard by the court, on the evidence I am satisfied that the delay was not contributed to by the applicant. Nor was it contributed to by his solicitor, who, on 29 July 1988, wrote to the District Registrar of the court, informing him that the matter was "ready for trial"; that letter was received and apparently referred to a Judge of the court. However the applicant's solicitor was informed, on enquiry at the Registry on 19 January 1989, that the "letter could not be found".
In the circumstances set out above, and in the light of my finding that the applicant was denied natural justice, in my opinion it would be unjust and would not be a proper exercise of the court's discretion under s. 209(3) of the new Act if it were to refuse to grant to the applicant the relief sought.
The rule to show cause, granted by Gray J. on 19 April 1988, should be made absolute and the respondents, other than Mr. P. Crocker, ordered to perform and observe the rules of the Union by treating as null and void the resolutions, carried at the meeting of the Committee of Management of the Victorian Branch of the Union on 5 December 1985:-
(a) "That Comrade Troja be found guilty as charged."
(b) "That F. Troja be expelled from the Union under Rule 64."
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