Walker v McLeod

[1984] FCA 84

Re: JUDITH WALKER
And: K.H. McLEOD; K.W. DAVERN; J. ANGUS; P. PHILLIPS; I. WEST; J. BOOKER;
J. DWYER; M. CLARK; I. LARCOMBE; J. WILSON; R. PURVIS; G. CHRISTIE; J.
TROUSDALE ; L. ASPINALL; G. DUNCAN; P. ADAMS; AUSTRALIAN INSURANCE EMPLOYEES
UNION
No. NSW 18 of 1984
Industrial Law
7 IR 94

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.

CATCHWORDS

Industrial Law - Application under s. 141 of Conciliation and Arbitration Act - Pending proceedings to remove officer from office - Replacement of rule dealing with such removal - Repeal by implication.

Conciliation and Arbitration Act, 1904 s.141

HEARING

SYDNEY

#DATE 6:4:1984

ORDER

1. Orders that the respondents and each of them perform and observe the rules of the Australian Insurance Employees Union ("the organization") by recognising the applicant as continuing to occupy the offices of New South Wales Branch Secretary of the organization and additional Delegate of the New South Wales Branch to the Federal Executive of the organization and as possessing all of the rights, privileges and duties associated with those offices.

2. Orders that the respondents and each of them treat as null, void and of no force or effect resolutions purportedly carried by a special general meeting of the New South Wales Branch of the organization on Friday, 24 February 1984.

3. Declares that no valid resolutions have been carried in accordance with the rules of the organization removing the applicant from any office occupied by the applicant in the organization or otherwise affecting the position and standing of the applicant within the organization.

4. Declares that each of the resolutions purportedly carried by a special general meeting of the New South Wales Branch of the organization on 24 February 1984 was null, void and of no force or effect.

JUDGE1

This is an application for orders under s.141 of the Conciliation and Arbitration Act, 1904. In the proceedings, the applicant challenges the validity of certain resolutions purportedly carried by a special general meeting of the New South Wales Branch of the Australian Insurance Employees Union held on 24 February 1984. The applicant was, and claims she still is, the secretary of the Branch and an additional delegate of the Branch to the Federal Executive of the Union. The personal respondents are all members of the Federal Executive. The resolutions now challenged found the applicant guilty of a number of substantial breaches of the rules of the Union and guilty of "gross misbehaviour" in a number of respects and then purported to dismiss her from the two offices mentioned.

There is little, if any, dispute about the primary facts. On 9 January 1984, Mr. T.A. Wenman, a member of the respondent Union, wrote a letter to the president of the N.S.W. branch of the Union giving notice that, at the next general meeting of members of the branch, he intended to move the following resolutions (a copy of the letter was sent to the applicant):

"1. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that in or about the month of January, 1981, contrary to Rule 43(b), she did receive an amount of $200.00 from a member of the Branch, Mr. L. Grimm, on behalf of the Union and did fail to pay such amount into the Branch Receiving Account within three days of the receipt of the same.

2. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that in or about the month of January, 1981, contrary to Rule 43(b), she did receive an amount of $200.00 from a member of the Branch, Mr. L. Grimm, on behalf of the Union and did fail to hand to the Treasurer of the New South Wales Branch any receipt for the said amount of $200.00.

3. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that in or about the month of July, 1981, contrary to Rule 43(b), she did receive an amount of $100.00 from the Australian Bank Employees' Union, New South Wales Division, on behalf of the Union and failed to pay such amount into the Branch Receiving Account within three days of receipt of the same.

4. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that in or about the month of July, 1981, contrary to Rule 43(b), she did receive an amount of $100.00 from the Australian Bank Employees' Union, New South Wales Division, on behalf of the Union and did fail to hand to the Treasurer of the New South Wales Branch any receipt for the said amount of $100.00.

5. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that in or about the month of Janurary, 1980, contrary to Rules 39, 43 and 49, she did cause to be opened in the name of the Union a charge account Number 501104 with Cab Charge without the authority of the New South Wales Branch Committee of Management.

6. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, contrary to Rules 39, 43 and 49 and contrary to the direction of the New South Wales Branch Committee of Management expressed in a resolution of the 18th November, 1981, she did not cause to be closed charge account number 501104 with Cab Charge.

7. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, on numerous occasions between the 11th November, 1980 and the 20th July, 1982, contrary to Rules 39, 43 and 49 and without any authorisation by the New South Wales Branch Committee of Management, she did use charge account number 501104 with Cab Charge for private purposes at the expense of the Union.

8. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, in or about the month of March, 1981, contrary to Rules 39, 43 and 49, she did cause to be opened in the name of the Union a charge account at the Backstage Seafood Restaurant without any authorisation by the New South Wales Branch Committee of Management.

9. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, on numerous occasions between March, 1981 and July, 1981, contrary to Rules 39, 43 and 49 and without any authorisation by the New South Wales Branch Committee of Management, she did use the charge account at the Backstage Seafood Restaurant at the expense of the Union.

10. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, between the 1st January, 1981 and the 31st July, 1982, contrary to Rule 43, she did fail to ensure that the books and accounts of the New South Wales Branch of the A.I.E.U. were kept in a state fit for the conduct of a satisfactory audit. 11. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, between the 1st January, 1981 and the 31st July, 1982, contrary to Rule 43, she did fail to ensure that adequate and satisfactory documentary evidence be kept in respect of the expenditure of the funds of the New South Wales Branch.

12. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of a substantial breach of the Rules of the Union in that, on or about the 3rd June, 1982, contrary to Rules 26, 43 and 49, and to a decision of the Federal Executive of the Union made on the 17th May, 1982, she did cause to be paid out of the funds of the New South Wales Branch to a Ms. P. Reynolds additional expense allowances in respect to the Women and Labour Conference in Adelaide.

13. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of gross misbehavior in that:

(i) to (xii) (as in 1 to 12, above)

xiii. On or about the 19th April, 1982, as a delegate of the New South Wales Branch to the Federal Executive of the Union, she mislead the Federal Executive of the Union with respect to details of the pre-payment of rent and removal expenses relating to the occupancy by the New South Wales Branch of the Ash Street premises;

xiv. On or about the 16th August, 1982, as a delegate of the New South Wales Branch to the Federal Executive, she misled the Federal Executive with respect to the existence of and/or use by her of the charge account Number 501104 with Cab Charge.

14. That this general meeting of members of the New South Wales Branch of the A.I.E.U. finds Ms. Judith Walker guilty of gross neglect of duty in (substantially the above respects).

15. That the said Ms. Judith Walker be dismissed from office as Secretary of the New South Wales Branch of the Australian Insurance Employees' Union.

16. That the said Ms. Judith Walker be dismissed from office as an additional delegate of the New South Wales Branch to the Federal Executive of the Union."

At this time, the rules of the Union dealt with the removal of branch officers as follows:

"47. --REMOVAL OF BRANCH OR SUB-BRANCH OFFICERS AND OFFICE HOLDERS

(a) An officer of a Branch or Sub-Branch or a member of a Branch or Sub-Branch Committee of Management shall not absent himself from three consecutive meetings of the Branch or Sub-Branch Committee of Management without satisfactory explanation or without the permission of his Committee of Management.

(b) Such an Officer or member may be suspended or dismissed from his office or position if a General Meeting of members of the Branch or Sub-Branch by resolution finds him guilty in accordance with these Rules of misappropriation of the funds of the Union, a Branch or Sub-Branch, a substantial breach of the Rules of the Union, gross misbehaviour or gross neglect of duty or finds that he has ceased according to these Rules to be eligible to hold his office or position.

(c) Any such Officer or member shall be given fourteen days written notice of the intention to move such a resolution and shall be entitled to attend the General Meeting and to be heard.

(d) A member so suspended or removed shall have the right to appeal to the Federal Council provided that he gives to the Federal Secretary within seven days after his being notified in writing of his suspension or removal notice of his intention to appeal."

On or about 24 January 1984, the president of the N.S.W. branch received a number of petitions, pursuant to Rule 48 (c) of the Union rules, requesting that the president instruct the branch secretary to call a special general meeting of the branch on 15 February 1984 to consider and decide upon the resolutions proposed by Mr. Wenman. Thereafter, Union members received a notice in these terms:

"IMPORTANT NOTICE TO ALL FINANCIAL A.I.E.U. MEMBERS

The N.S.W. President has received sufficient signatures under Rule 48c on petitions calling for a special meeting of members.

This meeting will be held on Friday the 24th February 1984, at 5.30 p.m. in the Sydney Town Hall, George Street, Sydney.

AUTHORISED BY

J.M. WALKER
STATE SECRETARY"

On 17 February 1984, Union members received a letter from the first respondent as follows:

"Dear Member,

As you know, a petition calling for a special meeting of members of the New South Wales Branch of A.I.E.U. has been signed by 2438 members and handed to the Branch President.

At last, the Branch President has called the meeting, at the following place and time:

SYDNEY TOWN HALL
FRIDAY 24 FEBRUARY, 1984
AT 5.30 p.m.

Although Branch President Angus failed to specify the business of the meeting in his announcement, it has been called to consider and decide upon a number of resolutions to be moved by a member, Mr. T. Wenman. The details of those resolutions are included with this letter. (see above)

This meeting is vital for the future of your Union. It gives you a chance to decide upon matters which have been affecting your Branch.

You are urged to attend the meeting and participate in shaping the future of your Union. Show your concern by coming to this important event in A.I.E.U.'s history and having your say.

Also enclosed is a form which you should fill in now and bring along to the meeting, demonstrating that you are a financial member of A.I.E.U. This is merely to streamline your entrance to the meeting place.

Once again I urge you to attend on Friday, and show your concern about A.I.E.U.

Around two hours of your time given now could vitally affect your future.

Yours faithfully,

(Sgd.)
Ken McLeod
Federal Secretary."

As has been said, at the special general meeting held, the resolutions now impugned were purportedly passed. Before going to the several ways in which the applicant challenges the conduct of the proceedings brought against her at the meeting, it is necessary to refer to a preliminary point raised by the applicant only shortly before the commencement of the final hearing of this proceeding.

The rules of the Union certified on 25 January 1978 (and subsequently amended) in force prior to 15 February 1984 provided, so far as material:

"57. --ALTERATION TO RULES

Amendments may be made to these Rules or new Rules made or any Rule may be deleted or deleted and replaced by a new Rule by a resolution of Federal Council carried by a two-thirds majority of members voting. . . . "

The minutes of the Federal Council show that, on 3 October 1983, the Council considered certain recommendations made by the rules committee appointed by the Council in 1981. A new set of rules was adopted, although each new rule was separately considered. Inter alia, the Council adopted a new rule 46 in these terms:

"46. - REMOVAL OF BRANCH OFFICERS AND OFFICE HOLDERS.

(a) An Officer of a Branch, a member of a Branch Committee of Management or a delegate from a Branch to Federal Council or Federal Executive may be removed from his office if the Federal Council, the Federal Executive or a General Meeting of his Branch by majority resolution of members voting finds him guilty, in accordance with these Rules, of misappropriation of the funds of the Union or a Branch, a substantial breach of the Rules of the Union, gross misbehaviour or gross neglect of duty or finds that he has ceased according to these Rules to be eligible to hold his office or position.

(b) Such person may be charged by any member under this Rule. Any charge shall be in writing and shall be forwarded to the Federal President or the Federal Secretary (in which event the charge shall be determined by the Federal Council or the Federal Executive) or to the Branch President or the Branch Secretary (in which event the charge shall be determined by a General Meeting of members of the Branch). The Officer to whom the charge is forwarded shall notify the person charged of the details of the charge.

(c) The person charged shall be given not less than fourteen days' notice in writing of the time and place of the meeting at which the charge is to be heard and determined and shall be entitled to attend such meeting and to be heard but not to vote thereat.

(d) A member so removed by the Federal Executive or a General Meeting of a Branch shall have the right to appeal to the Federal Council provided that he gives to the Federal Secretary within seven days of his being notified in writing of his removal notice of his intention to appeal, but the giving of such notice shall not operate to stay the decision of the Federal Executive or the General Meeting as the case may be.

(e) Notwithstanding the foregoing, the Federal or Branch President or the Federal or Branch Secretary or the Federal Executive or the Branch Committee of Management may, at their discretion, suspend from office a person charged under this Rule pending determination of the charge but in no event shall a person remain suspended for more than twenty-eight days."

The Council then resolved (inter alia):

"that Federal Council having considered a proposed new set of rules as recommended by the Rules Committee and having amended some of those recommended Rules:-

1. rescinds the rules as certified on 25th January, 1978.

2. replaces the rescinded rules with a new set of rules as set out in Federal Council Resolutions 83000 to 83075. (new rule 46 was resolution 83051)

. . .

that Federal Council having received recommendations relating to a total review of AIEU Rules from a Rules Committee appointed in 1981 and having considered separately each proposed rule contained in these recommendations determines that the Rules as considered and debated and set out in Federal Council resolutions 83000 to 83075 be adopted as AIEU Rules replacing those Rules as certified on 25th January, 1978 and as subsequently amended. . . ."

On 15 February 1984, the Registrar certified as required by s.139(4) of the Act in respect of the alterations to the rules of the Union adopted at the meeting of the Federal Council. The alterations, therefore, did not have effect until that date, being a date after Mr. Wenman gave notice of intention to move his resolutions. Although he did not mention that he was purporting to proceed under rule 47(c) of the rules certified on 25 January 1978 and as subsequently amended, it is evident that Mr. Wenman was purporting to act under that rule; and, in any event, until the Registrar certified, as required by s.139(4), in respect of the alterations to the rules, rule 47(c) was the only relevant rule operative.

In the circumstances, the applicant contends first, that the meeting held on 24 February 1984 purported to act under a Union rule no longer in force; and secondly, that compliance with the rule then operative, that is, new rule 46 was not attempted and, in any event, was impossible, in view of the time limit specified in para.(c) thereof for the giving of notice of a charge (that is, fourteen days commencing from no earlier than 15 February 1984). Thus, the applicant submits, the Union rules were not relevantly complied with.

As has been said, this point was only recently raised: the applicant says that the material facts only recently came to the attention of her legal advisers. In order to raise the point, it was necessary for the applicant to seek to amend her initiating process. The application to amend the rule to show cause was opposed by the respondent in the main upon the ground that the amendment would be futile in that it disclosed no arguable cause of action. On the other hand, the applicant sought that the point be determined as a separate question or preliminary point. Since questions of discretion would probably arise even if the preliminary point were upheld, I directed that the whole of the evidence be tendered and that the whole of the argument be put, upon the footing that I would reserve my decision in the whole proceeding, including the preliminary point.

In addition to the preliminary point, the applicant claims that she is entitled to the relief sought upon the alternative ground that the resolutions purportedly carried at the meeting held on 24 February 1984 were carried in contravention of the rules of natural justice in several respects and were therefore null and void. However, since in my view, the applicant is entitled to succeed on the preliminary point, it is unnecessary to consider the natural justice question.

In support of her claim in the preliminary question, the applicant in the first place points to the absence, in the new rules, of any transitional or other provision which would pick up, as at 15 February 1984, the incompleted proceedings commenced by Mr. Wenman in his notice given on 9 January 1984 of intention to move pursuant to old rule 47(c). The applicant submits that, by analogy with the approach taken to statutory construction in this type of situation, it should be presumed that the new rule has a prospective operation only and does not pick up incompleted proceedings (cf. Acts Interpretation Amendment Bill, 1984, s.25B(4)). The applicant points to the obvious, substantive differences between the old and new provisions and submits that, since the amendments are not merely procedural, they should be construed so as to have a prospective operation only.

In this connection, the applicant relies upon the decision and the reasoning of Spicer, C.J., Joske and Eggleston, JJ. in Beeson v. Blayney (1966) 8 F.L.R. 292. There, during an election for office in an organization, the term of the office was increased. The amendment to the rules increasing the term of the office was certified by the Registrar, and so became effective, after the close of the ballot. It was held first, that an election for office is complete as soon as the ballot closes; and secondly, that the successful candidate held office for the shorter term provided by the rules before amendment. Joske, J. (Spicer, C.J. and Eggleston, J. concurring) said (at pp.294-5):

"In my opinion the amendments to the rules apply and were intended to apply only to future elections and have no application to an election which had already commenced and was in progress at the time the rules were amended. The rules on their face put forward election dates from January to June and appear only to be dealing with the future. In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters. I am therefore satisfied that the rules as amended do not apply to the election in question. I would simply add this. In this case the amendment to the rules increasing the period of tenure of the office from three to six years was a matter of substance which could affect the actions of voters and of potential candidates. A voter might very well be prepared to give his vote to a candidate for a period of three years but might hesitate to do so for double that period on account of the age or personal characteristics of the candidate which might render doubtful the wisdom of giving him a greater period of office. A potential candidate might not be attracted by a period of three years, but the longer period might make him well consider the desirability of putting in a nomination, had not the nominations already been closed at the time these amendments were made. The position, while not identical, may be likened to the case of a statutory amendment, providing for taking a majority verdict of the jury, which came into force during the course of a trial, where it was held that this was a matter of substance and not one of procedure merely, and the amendment did not apply to enable the majority verdict to be accepted in the trial which was in progress (Newell v. The King . . . )." (Emphasis supplied.)

The applicant also relies, in this context, on the decision and reasoning of Spicer, C.J. and Eggleston, J. in Davis v. Pulp and Paper Workers Federation of Australia (1963) 8 F.L.R. 277. There, rules of an organization were amended to provide as a qualification for election to a certain office in the organization a requirement that a candidate must be and have been continuously a financial member of the organization for at least three consecutive years immediately preceding the date of the opening of nominations for office. Contrivutions were payable quarterly in advance and a financial member was defined as one who had paid all money owing by him to the organization within twenty-one days of the due date unless a reasonable explanation was tendered. It was held that on the true construction of the rules they did not operate retrospectively to disqualify a candidate who had not been continuously a financial member before the amendment to the rules took effect, and, accordingly, the rules did not contravene s.140(1)(c) of the Act.

Spicer, C.J. and Eggleston, J. said (at pp.280-1):

"The rule of construction against retrospective operation which applies to statutes does not, of course, directly apply to the rules of an organization. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v. Victorian Railways Commissioners . . . ), and somewhat similar considerations must apply to the construction of the rules of an organization such as this, particularly where the injustice of the rule may be a statutory ground of invalidity. In our opinion, it would lead to injustice to apply the rule retrospectively, and we are therefore of the opinion that a failure to maintain the status of being 'continuously a financial member', as defined, during the period prior to the registration of the new rules cannot, on the true construction of the rules, be a basis of disqualification of a candidate for office."

On behalf of the respondents, it is submitted in the first instance that the old rules are capable of application to incomplete business of the kind which has occurred in the present case as at 15 February 1984. In this connection, the respondents rely upon the circumstance that s.139(4) applies only to alterations to rules; so that, strictly speaking, Federal Council Resolution 83076, so far as is purported, in para. 1, to rescind the rules as certified on 25 January 1978, was not subject to the operation of s.139(4), nor did the Registrar certify in respect of the rescission referred to in that resolution. Rather, they say, what happened was that the new rules repealed the old rules by implication but there was preserved in the old rules the capacity to deal with business then incomplete. In support of this argument, the respondents rely upon the reasoning advanced by Spicer, C.J., Dunphy and Eggleston JJ. in Higgins v. McGrane (1961) 5 F.L.R. 82. There, an officer of a branch of an organization was re-elected to the office of secretary-treasurer which he was, by resolution under the rules, to hold for a period of four years. During his term of office, the rules were amended to provide, inter alia, that "any person elected" to the office of secretary-treasurer should, on re-election, hold office for six years. It was held first, that the amendment to the rules applied only to officers re-elected after the date on which the amendment came into operation; and secondly, that there was a necessary implication that an existing office bearer should continue to hold office until the expiration of the term of office fixed by the rule previously in force. The Court said (at 84):

"It was argued, on his behalf, that a construction which did not extend the term of existing office bearers would leave a gap in the administration, since the rule under which Lynch held office for four years (i.e. until 21st September, 1961) had been repealed, and unless the new rule were constructed as applying to existing office bearers there would be no office bearers at all until fresh elections were held. We do not think, however, that the repeal of a rule necessarily terminates the offices of all office-bearers who have been elected under it. In the case of a statute, the doctrine of the common law was that a repealed statute was to be considered as if it had never existed, except as to transactions past and closed, so that, in the absence of a saving clause, the statute could not be relied on after its repeal, even in respect of matters which took place before the repeal. But we do not think this doctrine applies to the rules of an organization, and it must frequently happen that a rule is altered or repealed, without any provision being made to preserve existing rights, in circumstances in which the repealed rule must be looked at for some purposes even though it has ceased to be an operative rule for the future. The question must in the ultimate analysis be one of intention, and if it is clear, as we think it is, that the new rule was intended to fix the terms of office only of officers elected after its coming into operation, there is we think a necessary implication that existing office bearers should continue to hold office until the expiration of the term of office fixed by the rule previously in force. If, in the present case, the expression 'any person elected' had read 'any person elected after registration of this rule', such an implication would have been readily made, and we think the same result must follow in a case in which the rule on its true construction has this meaning, although it is not unequivocally and in express terms stated to apply only to officers elected in the future. It may be added that even in the case of a statute, the rule as to repeal only applied in the absence of provision to the contrary, and such a provision might be found by necessary implication. Wigram v. Fryer affords a striking example of a statute which was held, by necessary implication, to have a continuing operation notwithstanding its express repeal." (Emphasis added.)

Alternatively, the respondents argue that, on their true interpretation, the new rules are capable of application to the events which occurred in the present case and that the relevant requirements of new rule 46 were in fact complied with (see Baker v. Cole (1961) 2 F.L.R. 159 at p.163).

In my opinion, the preliminary question falls to be determined by the proper construction to be placed upon the new rules which came into force as from 15 February 1984. Being a question of construction, as was said in Higgins v. McGrane, it is thus one of intention to be gathered from the rules themselves, and little assistance can be derived from conclusions arrived at in other cases.

In considering the question of what intention should be imputed to the framers of the rules, some of the more significant differences between old rule 47 and new rule 46 should be mentioned. Although each rule is capable of being used to bring about the dismissal of a branch or sub-branch officer, there are fundamental differences in the approach taken in each case: old rule 47 contemplates a procedure involving, in the first instance, the matter being dealt with at a general meeting of members upon notice being given of intention to move such a resulution; on the other hand, new rule 46 contemplates a charge being forwarded to either the Federal President or the Federal Executive (in which event the Federal Council or the Federal Executive deals with the charge) or to the branch President or branch Secretary (in which event a general meeting of the branch deals with the charge); the Executive notifying the person charged of details of the charge; and the person charges being entitled to be heard but not to vote, at the meeting which hears and determines the charge.

On its face, the new rule 46 is exhaustive and purports to cover the field of removal of officers. A question may arise whether it is possible to spell out of the new rules an implication to the effect that old rule 47 does not continue to apply to incomplete business thereunder. However, this question does not arise because the business in question did not really commence until Mr. Wenman moved his resolutions at the meeting held on 24 February 1984. In other words, the position may well have been different if the meeting had commenced before 15 February 1984 but had adjourned to a date thereafter, with its business incomplete. In such a situation, whilst it is unnecessary to decide the point, the respondents' argument may have been stronger. But in the present case, all that had happened prior to 15 February 1984 was that notice of intention to move the resolutions had been given and, of course, Mr. Wenman was not obliged to proceed with his stated intention. It follows, in my view, that old rule 47 was no longer operative for present purposes.

I therefore uphold the applicant's preliminary point.

The respondents then submitted that, as a matter of discretion, relief should be refused (see Cook v. Crawford (1982) 43 A.L.R. 83). Accepting, as I do, that the Court has a discretion, I do not think that it is appropriate to decline the relief sought on that ground: in the first place, the differences between old rule 47 and new rule 46 are, as has been said, significant; secondly, and more important, I am satisfied that the applicant was prejudiced in the presentation of her case by being handed at the commencement of the meeting a large booklet of material to be used against her. In my view, even if she had seen some of the material previously, she could not reasonably be expected to handle adequately such a large body of documentary evidence which was proposed to be adduced against her on such short notice, even if some of the facts there alleged were not seriously in dispute. In other words, in my opinion, there is nothing in the circumstances of the case or in the conduct of the applicant which disentitles her to the relief sought.

I make the following orders:

1. Order that the respondents and each of them perform and observe the rules of the Australian Insurance Employees Union ("the organization") by recognising the applicant as continuing to occupy the offices of New South Wales Branch Secretary of the organization and additional Delegate of the New South Wales Branch to the Federal Executive of the organization and as possessing all of the rights, privileges and duties associated with those offices.

2. Order that the respondents and each of them treat as null, void and of no force or effect resolutions purportedly carried by a special general meeting of the New South Wales Branch of the organization on Friday 24 February 1984.

3. Declare that no valid resolutions have been carried in accordance with the rules of the organization removing the applicant from any office occupied by the applicant in the organization or otherwise affecting the position and standing of the applicant within the organization.

4. Declare that each of the resolutions purportedly carried by a special general meeting of the New South Wales Branch of the organization on 24 February 1984 was null, void and of no force or effect.