Van Arend, Rob v Armstrong, Jan
[1998] FCA 1481
•19/08/98
FEDERAL COURT OF AUSTRALIA
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 371 of 1998 |
| BETWEEN | ROB VAN AREND | |
AND: | JAN ARMSTRONG PETER ELLISON JENNY JENSZ FRANK CARROLL DANIEL GILLESPIE DENISE GREGOR VERONICA FAHEY SONYA MCCORMACK ROBERT MCCUBBIN JENNY KENNEISON MARIA GORGAL NADA VUJASIN GAIL GILLS CHARLIE NADER | |
JUDGE(S): | NORTH J | |
DATE OF ORDER: | 19/08/98 | |
WHERE MADE: | MELBOURNE | |
THE COURT ORDERS THAT:
The rule nisi is discharged.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 371 of 1998 |
| BETWEEN | ROB VAN AREND |
AND: | JAN ARMSTRONG PETER ELLISON JENNY JENSZ FRANK CARROLL DANIEL GILLESPIE DENISE GREGOR VERONICA FAHEY SONYA MCCORMACK ROBERT MCCUBBIN JENNY KENNEISON MARIA GORGAL NADA VUJASIN GAIL GILLS CHARLIE NADER |
JUDGE(S): | NORTH J |
DATE: | 19/08/98 |
PLACE: | MELBOURNE |
EX TEMPORE REASONS FOR JUDGMENT
I intend to rule on the arguments which have been put this morning in relation to the question of whether the rule which I have previously granted should now be discharged. On 10 August 1998, I granted a rule to show cause, calling on the members of the Committee of Management Health Services Union of Australia, Victoria No 1 Branch, to show cause why they should not treat as null and void certain resolutions of the Branch Committee of Management, carried at a meeting held on 28 July 1998. The resolutions purported to terminate the employment of Zora Marko, Paul Elliott, David Amesbury and Ruth Hutchison (the employees). The applicant, himself a member of the Branch Committee of Management, contended that those members of the committee of management who voted in favour of the resolution did not act bona fide in exercise of the power given to them by the rules.
Mr Langmead, who appeared as counsel for the applicant, contended that the employees had been dismissed because they met with Jeff Jackson on 13 July 1998 in circumstances to which I will refer shortly. Mr Nolan, who appeared as counsel for the first, second and sixth to eleventh respondents, argued that the making of the rule was not justified and that it should be discharged. He contended that the evidence relied upon by the applicant did not establish a prima facie case of lack of bona fides. I have been greatly assisted by the arguments of counsel in determining what is always a very difficult line to draw in cases involving allegations of lack of bona fides.
I now turn to the circumstances of the dispute which gave rise to the impugned resolutions. Prior to the termination of employment of the employees, the branch was involved in a controversy over the appropriate investigatory process into some financial irregularities concerning the branch secretary. A majority of the Branch Committee of Management determined that an inquiry should be conducted by accountants, Peter W. Jess and Associates Pty Ltd, appointed by the branch, rather than an independent inquiry. The applicant argued in favour of an independent inquiry. The Jess report was adopted by the Branch Committee of Management on 13 July 1998. The applicant voted against this resolution.
The employees terminated by the Branch Committee of Management held the view that an independent inquiry should be held. Their views were well-known to the Branch Committee of Management. Immediately after the Branch Committee of Management meeting on 13 July, the employees met at the Café Hotel with the applicant, Danny Gillespie and Jenny Jensz, all members of the Branch Committee of Management who had opposed the resolution. Jeff Jackson, an opponent in the last elections of the current members of the Branch Committee of Management, also attended. The Branch Committee of Management dealt with these events on 28 July 1998, when the impugned resolutions were passed. The applicant described the proceedings relating to the dismissals at that meeting as follows:
“Amongst other items of business, there was a brief verbal report by Mr Nader in which he proposed the instant dismissal of Zora Marko, Paul Elliott, David Amesbury and Ruth Hutchison. He accused them of a number of things, including conspiring with Jeff Jackson to undermine the officials of the branch, meeting with Jeff Jackson and the National office, leaving meetings ‘in mid air’ to meet with Jackson, telling Jeff Jackson that Jan Armstrong had to go, and refusing directions and being disloyal. The main focus seemed to be on the fact that they had met with Jeff Jackson, particularly at the Café Hotel, which was the only time identified. A number of other members of BCOM interjected with comments like, ‘speaking with the enemy is intolerable’ and asking whether myself and other BCOM members who had been at the Café Hotel were in with Jeff Jackson. Charlie Nader said that the employees had been given an opportunity to explain their alleged actions, but didn't say whether they gave any explanation.”
The applicant proceeded a little later to say:
“I believe that the decisions to dismiss these employees were because of the meeting with ourselves and Jeff Jackson, and because Jeff Jackson is seen as a political opponent of the Officers of the Union.”
The letters of termination handed to the employees referred to gross disloyalty to the elected officials of the Branch and fostering disunity in the Branch as some of the reasons for termination. Of particular importance is a statement of one of the employees, Ruth Hutchison. In her affidavit, affirmed on 12 August 1998, she addressed her belief as to the intentions of the Branch Committee of Management in dismissing the employees. She said:
“Each of us said [at a meeting with Peter Ellison after the termination] we believed we were being terminated because we were concerned that Jan Armstrong may have abused the funds of the union and had made clear that we thought that an independent inquiry was needed.”
The evidence of the applicant, taken as a whole, demonstrates that the employees were terminated because they were actively committed to the case for an independent inquiry, that this cause had been lost, and that their continued identification with it was disruptive to the management of the branch.
In order to support the making of the rule, the applicant must show a prima facie case that the resolution was not made bona fide for the purposes of the powers conferred on the branch. He must show a prima facie case that the majority of the Branch Committee of Management were acting from “bye-motive, possibly of personal advantage, or for any other reason,” see Allen v Townsend (1977) 31 FLR 431, at 487, or “for some ulterior and illegitimate object”: Allen v Townsend at 485-486.
Upon the closer analysis of the evidence inter-partes which today's argument has allowed, I have come to the view that the evidence relied upon by the applicant does not establish a prima facie case of an illegitimate object. The action of the Branch Committee of Management may have been harsh, unfair or misguided, as to which I make no determination, but there is no prima facie evidence of any purpose other than the concern with the loyal support of staff for union officials and unity in the Branch. Nor is there evidence from which I can infer a prima facie case that the employees were victimised for personal reasons unrelated to the management of the Branch. As a consequence, the rule nisi must be discharged. The order of the court will be that the rule nisi is discharged with no order as to costs.
| I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North |
Associate:
Dated: 2 November 1998
| Counsel for the Applicant: | Mr D Langmead |
| Solicitor for the Applicant: | Slater & Gordon |
| Counsel for the First, Second and Sixth-Eleventh Respondents: | Mr Nolan |
| Solicitors for the First, Second and Sixth-Eleventh Respondents: | Holding Redlich |
| Counsel for the Third-Fifth Respondents: | Mr R M Niall |
| Solicitors for the Third-Fifth Respondents: | Howie & Maher |
| Date of Hearing: | 19 August 1998 |
| Date of Judgment: | 19 August 1998 |
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