Ure v Hooper

[1988] FCA 321

Re: WARREN URE; WILLIAM GORDON TWYMAN and KEITH WAYNE JOHNSTONE
And: DAVID J. HOOPER; WILLIAM P. (BILL) JONES; ALEXANDER R. PEATE; DANNIE
ROBERT DAVIDSON; JOHN DAVID CHAPLIN; CHERYL O'KEEFE; DAVID BLOOM; IAN MORGAN;
EDWARD R. STONEHAM; SIMON COLLINS and JOHN P. JONES
Nos. V7 of 1988, N.S.W I8 and 9 of 1988
Industrial Law - Practice and Procedure

COURT

IN THR FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J(1).

CATCHWORDS

Industrial law - registered organization - rules - performance and observance - construction - notice of special meeting - whether business of meeting must be set out - length of notice - meaning of "at least three (3) clear days" - against whom order should be made - whether rules impose particular obligations on respondents - effect of meeting invalidly called - form of order.

Practice and procedure - need for oral evidence - use of affidavits in undefended case - hearsay material in affidavits.

Conciliation and Arbitration Act 1904 s 141

Federal Court of Australia Act 1976 s 47

Federal Court Rules O.33 r.1

HEARING

MELBOURNE

#DATE 24:6:1988

Solicitor for the applicant: A.J. Macken & Co.

Mr. David Bloom appeared in person.

ORDER

The first respondent, David J. Hooper, perform and observe the rules of the Musicians' Union of Australia by:

(a) refraining from treating as a valid notice convening a special meeting of members of the Melbourne Branch of the Musicians' Union of Australia an advertisement published in The Age newspaper on Friday 15th April 1988;

(b) refraining from treating any meeting held on Sunday 17th April 1988 in response to such advertisement as a valid meeting of members of the Melbourne branch of the Musicians' Union of Australia held in accordance with those rules.

Otherwise the rule to show cause is discharged.

The first respondent, David J. Hooper, perform and observe the rules of the Musicians' Union of Australia by:

(a) refraining from treating as a valid notice convening a special meeting of members of the Newcastle Branch of the Musicians' Union of Australia an advertisement published in the Newcastle Morning Herald newspaper on Saturday 26th March 1988;

(b) refraining from treating any meeting held on Tuesday 29th March 1988 in response to such advertisement as a valid meeting of members of the Newcastle branch of the Musicians' Union of Australia held in accordance with those rules.

Otherwise the rule to show cause is discharged.

The respondent perform and observe the rules of the Musicians' Union of Australia by:

(a) Refraining from treating as a valid notice

convening a special meeting of members of the Sydney Branch of the Musicians' Union of Australia an advertisement published in the Sydney Morning Herald newspaper on Tuesday 12th April 1988;

(b) refraining from treating any meeting held on Friday

15th April 1988 in response to such advertisement as a valid meeting of members of the Sydney Branch of the Musicians' Union of Australia held in accordance with those rules.

(NOTE: Settlement and entry of orders is dealt with by O.36

of the Federal Court Rules.)

JUDGE1

These three matters were heard together on 10th

June 1988. Each was commenced by rule to show cause. The applicants seek orders, pursuant to s.141 of the Conciliation and Arbitration Act 1904 ("the Act"), for the performance and observance of the rules of the Musicians' Union of Australia ("the Union"), an organization of employees registered pursuant to the Act. Each applicant is a member of the Union. David J. Hooper, the first respondent in each of matters I 8 and V 7 of 1988, and the only respondent in matter No. I 9 of 1988, is a member of the Union and holds office as its Federal Secretary. The other respondents are members of the Union.

1. In the course of directions hearings, indications were given to the Court that it was likely that the matters would be undefended. In fact, the only respondent who appeared at the trial was Mr. David Bloom, one of the respondents in matter No. V 7 of 1988. He appeared in person. Mr. Macken, the solicitor for the applicants, appeared for the purpose of moving that each rule to show cause be made absolute.

2. Prior to the trial, no order had been made that evidence be given otherwise than in the ordinary way, namely orally. Mr. Macken appeared to have assumed that affidavits filed originally for the purpose of obtaining rules to show cause would be admissible at the trial, in the absence of any oral evidence. Both s.47 of the Federal Court of Australia Act 1976 and O.33 r. 1 of the Federal Court Rules lay down the primary rule that evidence at a trial of a proceeding shall be given orally. The Court does have power to receive evidence on affidavit, but care must be taken to ensure that the affidavit material tendered in such cases complies with the rules of evidence. In particular, the circumstances in which the Court will receive hearsay evidence by way of affidavits as to information and belief are more limited than the circumstances in which affidavit evidence from personal knowledge will be allowed. In the result, Mr. Macken was given leave to proceed by way of affidavit evidence, having chosen to rely upon those portions of the affidavits filed which appeared to have been made with the personal knowledge of the deponents. As a result, the evidence before the Court is sketchy.

3. The proceedings involve one point which is common to all of them. This point depends upon the proper construction of rules 80 and 40(e) of the Union's rules. It is necessary to set out in full those provisions.
   
   

"80 - SPECIAL GENERAL MEETINGS

Special Meetings of the members of the Branch may be called by the Secretary, after consultation with his Committee and shall be called on the written request of financial members sufficient to form a quorum. Written notices of such Special Meeting, setting out the matters to be dealt with at such Special Meeting, shall be sent by the Secretary to each member of the Branch by prepaid letter through the post, addressed to him at his last known place of abode or residence, forty-eight hours or more before the date and hour fixed for such Special General Meeting or shall be convened either by an advertisement in a newspaper circulating in the locality affected or by circular at least three (3) clear days before holding a Meeting."

"40(e) The Federal Secretary shall have power to call general meetings of members in any Branch or of members of the Committee in the event of the Local Secretary refusing or neglecting to do so, or meetings of the Federal Council, or may perform any such duties that may be considered necessary or advisable in the intersts (sic.) of the Union by the Federal Executive."

It appears that, in each of the Newcastle, Sydney and Melbourne branches of the Union, members have attempted to request special meetings, pursuant to rule 80. The secretaries of these branches have not called special meetings in response to such requests. These facts have not been the subject of evidence, but the Court is asked to assume, without deciding on the validity of any request, or on the propriety of any Branch Secretary's non-compliance with a request, that these facts have occurred. The applicant's attack is concentrated on the manner in which the Federal Secretary has attempted to exercise his power under rule 40(e), by calling general meetings of the respective branches.

1. In relation to the Newcastle branch, which is the subject of matter no. I 8 of 1988, the Federal Secretary caused to be published in a newspaper known as the Newcastle Morning Herald on Saturday 26th March 1988 an advertisement in the following terms:
   
   

"Musicians Union of Australia

"NOTICE OF SPECIAL GENERAL MEETING "Members of the Newcastle and Coalfields Branch of the Musicians Union of Australia are advised that in accordance with Rule 40(e) a Special General Meeting has been convened. "Date

"March 29, 1988, 7.30 p.m. "Venue

"Newcastle Workers Club

"Main Auditorium

"Union Street, Newcastle. D.J. Hooper, Federal Secretary"

1. In relation to the Sydney branch, which is the subject of matter no. I 9 of 1988, on Tuesday 12th April 1988, the Federal Secretary caused to be published in the Public Notices columns of the Sydney Morning Herald newspaper an advertisement in the following terms:
   
   

"Musicians Union of Australia - Notice of Special General Meeting.

Members of the Sydney Branch of the Musicians Union of Australia are advised that a Special General Meeting has been convened in accordance with rule 40 (e). Date Friday April 15, 1988 at 2.30 pm.. Venue Studio 2, Opera Centre, 480 Elizabeth St., Surrey Hills 2010. The purpose of the meeting is to deal with and make decisions, such decisions being binding on the Branch Secretary, Committee and Delegates to the 1988 Annual Federal Conference or any adjournment or postponement thereof, but without limit on the following matters:

1. The terms and conditions of employment of full time members of the Union

2. The resources available to the union to effectively carry out its functions to its members.

3. The dissemination of information to the membership.

4. The privileges incidential (sic) to honorary membership.

5. Such other matters as may relate to the agenda and business of the 1988 Annual Federal Conference or any other matters deemed to be in the best interests of the membership and the Union.

1. In relation to the Melbourne branch, which is the subject of matter no. V 7 of 1988, on Friday 15th April 1988, the Federal Secretary caused to be published in the amusements column of The Age newspaper an advertisement in the following term:
   
   

"MUSICIANS' UNION OF AUSTRALIA NOTICE OF SPECIAL GENERAL MEETING Members of the Melbourne Branch of the Musicians Union of Australia are advised that a Special General Meeting has been convened in accordance with Rule 40 (e). Date: April 17th 1988 at 2:30pm Venue: Waverley Theatre, 92 Waverley Rd., Malvern East.

The purpose of the meeting is to consider and make decisions on the following matters:

1. A compulsory retiring age for Union officials.

2. Dissemination of information to the Membership.

3. Amendments to the Registered Rules.

4. Staffing levels in the Federal Office.

5. Instructions to delegates to the 1988 Annual Conference.

6. Such other matters deemed to be in the best interests of the Members and of the Organisation.

David J. Hooper Federal Secretary

In the case of the Melbourne Branch, there is evidence that a meeting was convened at 92 Waverley Road, East Malvern, on Sunday 17th April. At that meeting, ten motions were moved. In relation to the Newcastle and Sydney branches, no evidence was tendered to the Court as to whether meetings were conducted pursuant to the advertisements published.

1. In each case, the applicant contends that the length of notice given of the meeting proposed by the advertisement concerned was inadequate to satisfy the provisions of rule 80. In addition, the applicant complains that two of the advertisements did not comply with rule 80 by "setting out the matters to be dealt with at such Special Meeting". In the case of the Newcastle Branch advertisement, no business was specified. In the case of the Melbourne branch advertisement, it is argued that the ten motions moved went beyond the six matters listed in the advertisement as those matters which the proposed meeting was to consider and make decisions on.

2. The provisions of rule 80 are not easy to construe. Nor does reference to the surrounding rules, which provide for general meetings of branches, including an annual general meeting, shed much light on the meaning of rule 80. A large part of the problem with rule 80 arises from the fact that the second sentence contains two verbs and only one subject, and the subject does not sit comfortably with the second verb. In the first place, the sentence provides that "Written notices...shall be sent". If read literally, the sentence would provide that "Written notices...shall be convened". It is not usual to speak of convening a written notice. Two possibilities exist; either the phrase "shall be convened" should be read as "shall be sent", or a second notional subject should be inserted in the sentence.

3. If the former approach were to be adopted, the sentence would provide for alternative ways of sending written notice, and it would be clear that any such written notice was required to set out the matters to be dealt with at the special meeting. This is because the requirement that such matters be set out appears before the first of the alternatives. If the latter approach is adopted, and the subject "a special meeting" is inserted notionally before the phrase "shall be convened", then the alternatives of newspaper advertisement or circular do not carry with them the requirement to set out the matters to be dealt with at the special meeting.

4. In my view, the latter construction, involving notional insertion of a subject, is more likely to have been intended by the person or persons drafting the rule. If it were not the intention, it is difficult to explain the choice of the word "convened", when the word "sent" had already been used with reference to an earlier method of summoning a meeting. There may well be a rationale in choosing to have the business of the meeting set out in the written notice sent to each member, but not requiring it to be set out in an advertisement or circular. A written notice posted forty-eight hours before the date and hour fixed for a special general meeting would not be expected to arrive at a member's address until very shortly prior to the start of the meeting, possibly on the same day. A member receiving such notice would need to make a quick decision whether to attend, and may be influenced in making that decision by knowledge of the matters to be dealt with at the meeting. On the other hand, a member seeing a notice in a newspaper, or receiving a circular at least three clear days before the holding of a special general meeting, would have more time in which to decide whether to attend, and to make enquiries as to the nature of the business to be transacted.

5. Nor is there any inherent quality about a so-called special general meeting which would require previous notice of the business to be dealt with. The phrases "special meeting" and "special general meeting" are not terms of art. They do not necessarily indicate a meeting at which some special business is to be conducted; rather, they may indicate an extraordinary, rather an ordinary general meeting, i.e. a meeting which takes place otherwise than at an ordinary time. Admittedly, the provision of rule 79(c) that a regular quarterly meeting held in January of each year "shall be deemed to be a special general meeting as laid down in rule 80" makes it more difficult to construe the phrase "special meetings" in rule 80 as referring to extraordinary general meetings. The meaning of rule 79(c) is, however, unclear in the extreme. In my view, the kinds of special meetings contemplated by rule 80 are or include extraordinary general meetings, of which notice of the business does not have to be given, unless written notice of the meeting is sent by the secretary to each member by post. If the alternative methods of summoning a special general meeting are relied upon, namely advertisement in a newspaper, or circular, the matters to be dealt with at the meeting need not be set out.

6. For these reasons, I am of the view that it was unnecessary for any of the advertisements to set out the business to be dealt with at the meetings which they advertised. The matters listed in the two advertisements which did list matters to be dealt with were in excess of the requirements of the rules for such advertisements. There was no argument before me on the question whether, given that an advertisement did set out matters to be dealt with, although unnecessarily, it had a limiting effect on the power of the meeting to deal with other business. I do not, therefore, decide this question. Nor do I decide whether the ten resolutions moved at the meeting of the Melbourne branch involved subjects which were outside the advertised business of that meeting.

7. This leaves the subject of the time of the notice to be dealt with. The first question which arises is whether the provision for three clear days' notice applies to newspaper advertisement as well as to circular. In my view, it does. If that were not so, there would be no express provision for the length of notice which would have to be given if a special general meeting were convened by advertisement in a newspaper. It is true that, in the absence of such provision, there would be an implication that reasonable notice was required. The intention of the framers of the rules does seem, however, to have been that the time stipulation should apply to both methods of convening a meeting. This view is supported by the provisions of rule 78(b), which specifically require the giving of reasonable notice of an annual general meeting. It is not negated by the provisions of rule 81, which provides for the calling of general meetings "in such manner as the branch committee shall determine"; that seems to be no more than a provision as to the form in which notice shall be given of regular general meetings, including annual general meetings, and does not seem to relate to time.

8. The second question is whether sufficient time elapsed between the day on which the advertisement was published and the date of the meeting advertised. This question depends upon the meaning of the words "at least three (3) clear days before holding a Meeting". There is authority that a period of "clear days" must be calculated by excluding the day of the occurrence of each of the events between which the period must elapse. In White v. Godfrey (1959) 1 FLR 357, at pp 361-362, Morgan J. held that the issue of ballot papers at noon on 14th August and the close of a ballot at 9.00 p.m. on 28th August did not allow fourteen clear days between those two events. At p. 362, His Honour said:
   
   

"In Armstrong v. Great Southern Gold Mining Co. ((1910-1911) 12 CLR 382, at p 388) Griffith C.J. said:-

"The term clear days' may be regarded as a well known term in law with a well known interpretation which has existed for more than half a century". That interpretation is that in calculating a lapse of a specified number of clear days between two events the calendar days upon which the events occur are excluded (R. v. Hertfordshire Justices ((1820) 3 B. & Ald. 581))."

Similarly, a requirement that "at least" a certain number of days elapse between two events is only satisfied by excluding the days on which those two events occur. See Ex parte McCance; Re Hobbs (1926) 27 SR (NSW) 35, at pp 37-40, and Francis v. Carmichael (1976) VR 259, at pp 263-264. The same view has been taken of a requirement that "not less than" a certain number of days elapse. See Bear v. Official Receiver (1941) 65 CLR 307, at p 318 in the judgment of Williams J., Associated Dominions Assurance Society Pty. Ltd. v. Balmford (1950) 81 CLR 161, at pp 182-183 in the judgment of Fullagar J. and Ayres v. Chacos (1972) 19 FLR 468, at pp 469-471. Rule 80 includes both the phrases "at least" and "clear days", thereby suggesting a clear intention to exclude from the computation of the period the date on which the newspaper advertisement is published or a circular is distributed and the date of the holding of the meeting. Indeed, if this were not the intention, it would be difficult to imagine why the phrase "clear days" had been used. It is therefore my view that three complete days must elapse between the day on which the newspaper advertisement is published and the day on which the meeting is held, neither of those days being counted in the period of three days.

1. If a branch secretary were convening a meeting by newspaper advertisement, in the exercise of the powers and duties given to a branch secretary by rule 88(e)(1) of the Union's rules to convene all general meetings of the branch, rule 80 would require the sort of lapse of time which I have outlined, in order for the meeting to have been called validly. In the present cases, however, it was the Federal Secretary, in the purported exercise of his power under rule 40(e) of the rules, who gave notice of the meetings. The Federal Secretary's power to call a general meeting of a branch is only exercisable in the event of the "Local Secretary" refusing or neglecting to do so. A question therefore arises whether the Federal Secretary is bound by the notice requirement in rule 80. Mr. Bloom, one of the respondents in matter No. V 7 of 1988, who appeared in person, argued that the time requirement in rule 80 does not apply to the Federal Secretary. His argument was that the Federal Secretary had to wait until the time had passed for the Branch Secretary to convene the meeting, before taking any step to convene it himself, because otherwise he would not know whether the Branch Secretary had refused or neglected to call a meeting. This argument is based on the proposition that rule 80 impliedly requires or permits the financial members requesting a special meeting to nominate the date and time of such meeting. If that were the case, there would be something to be said for the argument that the Federal Secretary was obliged to wait and see if the Branch Secretary acted, before taking action himself. In my view, however, no such implication is to be found in rule 80. Such an implication would tend to make the rules unworkable. Presumably, the Federal Secretary would not know whether a particular Branch Secretary intended to convene the meeting by newspaper advertisement, circular or written notice to each member. Even though the time for newspaper advertisement or circular may have passed, the Federal Secretary could not know until, at the earliest, forty-eight hours before the appointed time for the meeting, whether the Branch Secretary had posted written notice to each member of the Branch. That would be a very late stage for the Federal Secretary to act to convene a meeting. In my view, the scheme of rules 80 and 40(e) is that, if a special meeting is requested by a sufficient number of financial members of a branch, and a reasonable time elapses without the Branch Secretary having convened such meeting by one method or another, the Federal Secretary can act. If he does act, the Federal Secretary is then bound to comply with the requirements of rule 80, including those as to length of notice. In the case of the Sydney branch, two clear days elapsed between the publication of the advertisement and the appointed date for the meeting. In the Melbourne branch, only one clear day elapsed between those two events. In the case of the Newcastle branch, the period was two clear days. It follows that, in no case was adequate time allowed to satisfy the requirement of rule 80.

1. Each of the applicants is therefore entitled to relief. Having regard to the way in which the hearing was conducted on their behalf, it is difficult to determine precisely what relief should be granted, or against whom. In matter NSW No. I 8 of 1988, there are five respondents named, besides the Federal Secretary. The order sought is that the respondents and each of them perform or observe the rules of the Union by treating as null and void and of no legal effect all purported resolutions and proceedings of a meeting held on 29th March 1988. Save that the respondents other than the Federal Secretary are members of the Union, there is no evidence as to their identities, the positions that they fill, or the obligations owed by them under the rules. In matter NSW No. I 9 of 1988, the only respondent is the Federal Secretary. The order sought is that he perform or observe the rules of the Union by treating as null and void and of no legal effect the notice of meeting published by means of the newspaper advertisement on 12th April 1988, and all purported resolutions and proceedings of any purported meeting convened by that advertisement. In matter No. V 7 of 1988, there are five respondents other than the Federal Secretary. Each of the respondents is a member of the Union. Apart from the fact that two of them appeared at directions hearings, and one has appeared at the trial to oppose the making of the orders sought, there is no evidence before the Court as to the positions occupied by those respondents. The order sought in that matter is that the respondents and each of them perform or observe the rules of the Union by treating as null and void and of no legal effect all purported resolutions and proceedings of the meeting held on 17th April 1988.

2. When the absence of evidence about the respondents was drawn to his attention, Mr. Macken conceded that orders should only be made against the Federal Secretary. In my view, having regard to the state of the evidence, this was a proper concession. The mere fact that a person is a member of a registered organization, and is under a general obligation to perform or observe the rules of that organization, is insufficient to found an order under s.141 of the Act enforcing some particular obligation. It must first be shown that the particular member is under the particular obligation sought to be enforced. It would be pointless to seek to enforce against an ordinary member the duties placed by the rules upon members elected to specific positions. The respondents other than the Federal Secretary have not been shown to stand in any particular relationship to the matters complained of in the present cases. It has not been shown, for instance, that they seek to rely upon or to enforce any decision of any purported meeting, called without adequate notice. In these circumstances, no order should be made against them.

3. On the evidence, the Federal Secretary is the person responsible for the inadequate notice of meetings. It may be assumed legitimately, although there is no evidence to the effect, that he has a desire to uphold the validity of the notice, or to enforce it, in the sense of presenting the outcomes of the respective general meetings as valid and binding. It is legitimate, therefore, to make an order in each case against him.

4. The form of such order, however, is also a matter of some difficulty. In reliance on Winter v McAdam (1957) 1 FLR 210, especially at p 212, Mr. Macken sought orders that the Federal Secretary treat the proceedings of the meetings as void and of no effect. An order in that form was made in that case, that being a case in which inadequate notice of a meeting had been given to members of a registered organization.

5. What is done at a meeting which has not been summoned properly, or is invalidly constituted, is, in a sense, of no effect. That is to say, it is ineffective to accomplish any purpose for which the rules of the organization concerned constitute a meeting. It is not, however, necessarily something to be treated as if it had not occurred. In the absence of a provision in the rules of an organization prohibiting any but official meetings, it is always open to the members of an organization, or some of them, to gather and to pass resolutions. Those resolutions may have no more than moral or persuasive effect. As resolutions of groups of members they are nevertheless valid and effective. In the present cases, no rule of the Union prohibiting members from holding such meetings was referred to. If such a rule did exist, it may well contravene s.140(1)(c) of the Act. Whilst any meetings held as a result of the advertisements published were not valid general meetings of the respective branches, they may well have had some effect as meetings of groups of members of the Union. As I have said, there is no evidence as to whether any meeting was held in either the Sydney branch or the Newcastle branch, and the evidence relating to a meeting of the Melbourne branch is very limited. In those circumstances, I do not regard it as appropriate to order the Federal Secretary to treat the proceedings of any meeting as null and void and of no legal effect.

6. In my view, it is appropriate in the circumstances to make orders requiring the Federal Secretary to refrain from treating as valid notices of meeting the advertisements which were published, and to refrain from treating any resulting meetings as valid special meetings of the members of the branches, held in accordance with the rules. Beyond such orders, it would not be appropriate to go, for the reasons which I have given.