CATCIMORDS Industrial Law - interpretation of rules of organisetion ~ implied res1rpnation of office - doctrine of election, Federal Court of Austrelia (Cons cowoniiol Provi 310s) 1976 s.4(2); Conciliation ard Arbitrei.ou Act 1904 8.144 BARRY THOMAS EGAN v, JAMFS BERLARD AAFPER & OPS. B. No. 295 of 1975 Coram: Smithers, Evatt and Northrop JJ, 8 June 1978 Melbourne. IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY ; INDUSTRIAL DIVISION ) BETWEEN: BARRY THOMAS EGAN Claimant AND: JAMES BERNARD MAHER, WALTER F. MAJOR, EDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADING, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE, FJ. KEPPELL, K.G. ADDISON, J.L. McPHIE, JOHN M. BOAG and D.S. KILLICOAT Respondents ORDER JUDGES MAKING ORDER: SMITHERS, EVATT and NORTHROP JJ. DATE OF ORDER: 8 December 1977 WHERE MADE: Melbourne. THE COURT ORDERS: That until a new election shall have been held for the office of National Assistant Secretary the respondent, Edward John Goldsworthy, cease to hold himself out as National Assistant Secretary of the Shop Distributive and Allied Employees Association and that the remaining respondents cease to recognise him as National Assistant Secretary of the Shop Distributive and Allied Employees Association. +6 IN THE FEDERAL COURT ) OF_ AUSTRALIA formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court iN THE MATTER of the Conciliation and Arbitration Act 1904 BETWERN: BARRY THOMAS EGAN Claimant AND: JAMES BERNARD KAIER, WALTER F, MAJOR, FDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. PENWETT, MORRIS REED, LEQ WALSH, JOUN DALE, H. LESLIE KELLY, RAYMOWD J. McCART, FRANK 4. CURRIE, F.J. KEPPEL, K.G. ADDISON, J.L. McPHIE, JOuN |, BOAG and D.S. KILLICOAT SMITHERS J. 8 June 1978 REASONS FOR JUDGMENT In this case the Court made orders on 8th December 1977 that specified officers of the Shop Distributors and Allied Employees' Association should cease to recognise the respondent Edward Goldsworthy as the National Assistant Secretary of that organisation and that the respondent Edward Goldsworthy ccasc to hold himself out as the Naticn2] Assistant Secretary of cine organisation. At the time of the making of these orders I intimated that I was unable to concur therein. The basis upon which the orders were made was the office of National Assistant Secretary theretofore held by Mr. Goldsworthy was terminated by operation of law in the following circumstances. There is no Federal rule of the organisation containing express provisions on the subject of resignation from office by 4 national officer. Rule 14 as in force at the relevant date was in the following terms: "14, OFFICERS For the purpose of this rule the term Officer shall mean only those persons holding the following positions:- National President, National Vice- President, National Secrelary-Treasurer and National Assistant Secretary. Such Officers shall be elected by and from tne National Council and, if a delegate, upon election shall cease to be 2 delegate from any Branch whilst holding their respective positions, At the expiration of their term of office they shall be eligible for re-election. The term shall not include any person holding office of Branch only. No person shall hold at any one time more than one of the offices mentioned in this Rule." Rule 12(c) was in the following terms: "In the event of any vacancy occurring on the National Executive, National Council shall arooint another member from amongst the members of National Council to f2111 the vacancy. Any member so aorpointed shall hold office for the remaining portion of the retiring member's term of office." At the biennial meeting of the National Council held in October 1972, Mr. Egan was elected to the office of National Secretary~Treasurer and Mr. Goldsworthy was elected to the office of National Assistant Secretary. Each was to hold office until the biennial meeting of National Council to be held in October 1978 ard each was ex officio a member of the National Executive. At its biennial meeting 1n October 1974, the National Council purported to remove Mr. Egan from his office of National Secretary- Treasurer. Subsequently at the same meeting National Council passed the following two motions: "That there being a casual vacancy in the office of National Secretary-Treasurcr Mr. Goldsworthy be and he is hereby appointed to fill the casual vacancy." "That in consequence of the appointment of Mr. Goldsworthy to fill the casual vacancy in the office of National Secretary-Treasurer, the registered office of the Association be establsihced at 103 Wright Street, Adelarde until otherwise Getermined by National Council." Following the passing of these motions Mr. Goldsworthy, although not expressly resigning his office of National Assistant Secretary, purported to hold the office of Nationel Secretary- Treasurer. He performed the duties and exercised the powers imposed and conferred by the Federal Rules on the holder of that office. He held himself out as and acted as if he was the National Secretary-Treasurer of the S.D.A. At no time did he purport to exercise these powers pursuant to the power con-— ferred on the National Assistant Secretary by Rule 19(b) namely - "419. DUTIES AND RIGHTS OF NATIONAL ASSISTANT SKCRBETARY The duties of the National Assistant Secretary shall be to:- (t)in the absence of the National Secretary - Treasurer, he shall assume the tull duties of the National Secretary-Treasurer." Immediately prior to the passing of these motions, Mr. Goldsworthy received legal advice that Mr. Egan might be able to challenge successfully the validity of the motion purporting to remove him from office and in that event the appointment of Mr. Goldsworthy to the office would be invalid and therefore Mr. Goldsworthy should Accordingly not resign his existing office. /Mr. Goldsworthy formed the intention not to resign from his office of National Assistant Secretary but after the passing of the motions he held himself out as holding the off:ce of National Secretary-—Treasurer. On 25th August 1975 in the matter of Egan v. Harradine (1975) 25 FLR 336 the Australian Industrial Court ordered that the respondents therein should obey the rules of the organisation by recognising Mr, Egan as National Secretary-Treasurer. From the reasons of the Court it is apparent that these orders reflected a finding by it that a motion * of the National Council dismissing Egan fron/otfice of National Secretary-Treasurer was null and void because it was carried in circumstances in which natural justice had not been extended by the National Council to him. It follows that Egan was not removed from office and has at all times material continued to be the National Secretary—Treasurer of the organisation. It is a consequence of this that the recital in the motion of the National Council in October 1974 purporting to appoint Goldsworthy National Secretary-Treasurer that there was a casual vacancy in the office of National Secretary-Treasurer was contrary to fact. There was no casual vacancy and as a result the motion appoint- , @ ° ing Goldsworthy National Secretary-Treasurer could not and did not have any effect. He never did hold that office and in purporting to hold it he was erroueously claiming an office to which he had no legal title. The question is, however, whether by his actions he lost his office of National Assistant-Secretary. In the circumstances referred to above, that part of Rule 14 which provides that "no person shall hold at any one time more than one of the offices mentioned in this Rule" had no application in relation to Goidsworthy's occupancy of the office of National Assistant Secretary. At no time did he hold eny office other than the latter. Of course Goldsworthy purported to take up the office of National Secretary-Treasurer and asserted that he held that office. But Rule 14 does not operate upon a situation in which a member having one office in the Branch mistakenly claims another. The situation might weil be different if the resolution appointing Mr. Goldsworthy to the office of National decision of the Court of Exchequer Chanbo Secretary-Treasurer had been valid. Thus in the/Iron Shin Costang Company Ltd. v. Blunt (1868) 3 LR Comm. Pleas 484 where the articles of a goint stock company provided that any director who should accept or hold any office under the company other than manager shculd thereupon cease to be a director, a person who held the office of Secretary of the company was elected as a director. It was held that the resolution appointing him a director "involved" his resig-— nation of the office of secretary. Eut 1t does not appeer that the same result would have followed had the election and resolution been invalid. I do not think it would. Accoraiungly, Mr. Goldsworthy could lose his office of Nationel Assistant Secretary only if he resigned expressly or impliediv. or if he vere denrived of the nosition bv operation of Jaw. I do not think that on the facts disclosed an inference arose that Goldsworthy resigned from the position of Nationel Assistant Secretary. His conduct was compatible with an appreciation by him of the likelihood that Mr. Egan would challenge his appointment and an attitude on his part that his continued occupancy of the position of National Assistant Secretary depended upon the operation of Rule 14, Knowing that his appointment as National Secretary- Treasurer might be challenged Goldsworthy did not resign at the time of or as a condition of that appointment. It was contended that although Goldsworthy had no intention of resigning his position of National Assistant Secretary unless at any rate, his appointment as National Secretary Treasurer was legally valid, nevertheless a resignation by him happened by operation of law. It was contended that the conduct of Goldsworthy which was critical in causing this situation was that of purporting to act as National Secretary-Treasurer. It is no doubt a sound view that an act perfermed by a person consistent only with a determination or election by him that he has given up some existing right or adopted a particular stand concerning his legal relations with another may operate, whatever his intention, to bind him to that determination or election. As soon as he performs acts or ommissions "justifiable only if he has made that determination or clection" then the law annexes to that conduct, the legal consequences of tht election disclosed by it, per Kitto J. in Tropical Trades Ltd, v. Gooran (1964)/C.L.R. 41 at 56. In that case, 1t was pointed out by Kitto J, that the operation of the doctrine of elecvion does not ®@ , depend upon intention rather - "It is an effect which the law annexes to conduct which would be justifiable only if an siection had been nade one way or the other", ((1964) 111 CLR 4,55). I think it is difficult to apply those words to the situation in which Mr. Goldsworthy found himself. His only duty was to obey the rules of the organisation. His conduct could be ""Sustifiable" only if it was in accordance with that duty. As it turned out his purported occupancy of the position of National Secretary-Treasurer was contrary to the rules because his appointment was invalid. According to the rules therefore he never was National Secretary-Treasurer. It follows that his ostensible occupancy of the position was not legally justifiable at all. To my mind just as the validity of his occupancy of the posation of National Secretary~ Treasurer was to be determined by reference to the rules so was his occupancy of the position of National Assistant Secretary. The only "election" which Goldsworthy really made was to act, on the basis, that according to the rules, he had been appointed National Secretary-Treasurer, If the basis was sound then he was National Secretary-Treasurer and Rule 14 would operate. If not Rule 14 was not involved. The words of Kitto J. in Tropical Trades Ltd. v. Goonan (supra) were spoken in particular, in relation to cases of contract where the rights of the parties will vary accord- ing to their conduct. They are apt to describe the situation where one party to a legal transaction adopts one or two courses legally open to him, gains the benefit of that course and is thereafter bound thereby. The rights and duties of the parties are thereafter determined by reference to that conduct. But that does not happen where, whatever the conduct of the parties, 1t is the rules which govern the legal rights and liabilities of the orgunisation aud its members, not what they assert and not what offices they may wrongfully purport to hold. The sentence quoted from the gudgment of Kitto J. assumes that the position taken up by the party electing 1s one which, on the basis according to which it 1s justifiable, is legally open to him. In this case the position taken up by Mr. Goldsworthy, namely that he was National Secretery—-Treasurer was never legally open to him. It was pointed out by Mason J. in Sargent v. ASL Development (1974) 131 C.L.R. 634,641. et seq that a person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights i.e. when he has the right to determine an estate or terminate a contract for breach of convenant or contract and the alternative right to insist on the continuation of the estate or performance of the contract. But in the events which had occurred Goldsworthy did not have alternative and inconsistent rights concerning the offices of National Secretary-—Treasurer and National Assistant Secretary of the orgenisation. He had no rights at all in relation to the office of Natzonal Secretary- Treasurer, Support for this view may be found in a number or decisions of United States Courts. Thus Mr. Justice Holmes in delivering the opinion of the Supreme Court in Bierce v. Hutchins (1907) 205 U.S. 340 summarised the law relevant to this question as follows:- "Election 1s simply what its name imports; a choice, shown by an overt act, between two 1nconsistent rights, either of which may be asserted at the will of the chooser alone... The fact that a party, through mistake, attenpts to exercise a right to which he is not entitled, does not prevent his afterwards exercisiug one wnick he had and still has unless barred by the previous attempt." (205 U.S. 340, 346-3477) Similarly in Doyle v. Hamilton Fish Co. (1916) 234 F.A7 where the Circuit Court of Appeals dismissed an appeal from a decision of Learned Hand J. it adopted in its entirety his Honour's judgment which contained the following statement :- "As to the defence of an election, based upon the unsuccessful effort to disposess . the lessee upon allegations that there was no leuve it is enough to say that a party has an election only between existing not supposed rights. Bierce v. Hutchins 205 U.S. 340. The plaintiff could not destroy his rights under the lease by mistakenly following other supposed rights which turned out not to exist. That would be to put him, not to election, but to a correct estimate of his right under pain of forfeiture."| (234 P.47, 51) See also Asher v. Pegg (1909) 123 N.W. 739 and American Jurisprudence {2nd Ed. 1966) volume 25 p.652 It 1s possible to contemplate that 1m the situation in issue action might have been taken to appoint some person to the position of National Secretary~Treasurer, Had this happened questions of estoppel might have arisen. But this did not happen, On /evidence, it is reasonable to infer that such action was not taken by the National Council because a significant portion of its members understood the basis upon which Goldsworthy was acting. His conduct was "justifiable" in law only if he were validly appointed National Secretary-Treasurer. But it is another question whether in the relevant sense it was justifiable only if he had also resigned from the position of National Assistant Secretary. I do not think it was. The claim by Goldsworthy to the position of National Secretary—Treasurer was justifiable, af at all not by reference to any resignation by him of has nosition of his position of National Assistant Secretary. It was justifiable or ctherwise by reference to the validity of his {UV appointment as National Secretary-Treasurer, His occupancy of the office of National Assistant Secretary was something aliunde the justification of his claim to be National Secretary~ Treasurer. If he were validly appointed as National Secretary- Treasurer, then the resignation from the other office was involved as an incident or consequence thereof. But otherwise it was irrelevant to his assertion that he was the National Secretary~Treasurer, If he had previously actually resigned from the position of National Assistant Secretary that would not have made his assertion that he was National Secretary-Treasurer justifiable in the relevant sense. In cases of contract such as discussed in Tropical Trades Ltd. v. Goonan (supra) where the conduct of one party to the contract exhibits an intention for example to refrain from rescinding a contract although entitled to do so and thereby affirms that the contract is one still on foot, 1t is reasonable to say that such conduct is justifiable only on the basis that an election has been made to keep the contract on foot. In such case each party has the benefits and burdens of the contract as one so remaining on foot. The doctrine of election at common law differs from that of election in equity. The latter operates to fasten upon the conscience of a person taking under a dced or will by refusing to allow him to take the benefit of the disposition in his favour except upon satisfaction of certain conditions, But at common law election rests upon a basis of what is thought to be fair as between the parties. Cf. per Mason J, 1n Sargent's Case (supra) at page 654. When a party has elected to exercise one of his inconsistent alternative legal rights and thereby crystallascs his legal relations with another the basis of fairness in his being held thereto is apparent. But in the present case it is hard to see the fairness 1n Goldsworthy being deprived of his office of National Assistant Secretary and failing every to have had that of National Secretary-Treasurer. If he had been in a position to elect between being National Secretary-—Treasurer or being National Assistant Secretary that would have been one thing. But he could not do that, No other party is shown to have altered his position on the basis that Goldsworthy was thought to have resigned as National Assistant Secretary. The National Council did not teke or refrain from any action on that basis. The evidence suggests that the National Council was aware of the likelihood of a challenge by Egan to his dismissal and the appointment of Goldsworthy as National Secretary-Treasurer and understood that Goldsworthy's position depended in all respects on the validity or otherwise of his appointment. Accordingly I am unable to concur in the order made herein. I certify that this and the 10 preceding pages are a true copy of th Reasons for Judgment herein of his Hone Wr. Justice Sm, MOS Bee A ciate Dated: ¥ 6 TS IN THE FEDERAL COURT OF AUSTRALIA ) ) formerly B. No. 295 of 1975 INDUSTRIAL DIVISION ) in the Australian Industrial Court IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN: BARRY THOMAS EGAN Claimant AND: JAMES BERNARD MAHER, F. MAJOR, EDWARD J. GOLDSWORTHY, R.W. BRIAN HARRADINE, KENNETH J. BENNETT, MORRIS REED, LEO WALSH, JOHN DALE, H. LESLIE KELLY, RAYMOND J. McCART, FRANK A. CURRIE F. J. KEPPEL, K.G. ADDISON J.L. MCPHIE, JOHN M. BOAG and D.S. KILLICOAT Respondents EVATT J. 8 June, 1978 REASONS FOR JUDGMENT I have had the opportunity of reading the reasons for judgment herein of Northrop J. I agree with those reasons and have nothing to add. CATCHWORDS Industrial Law - interpretation of rules ~ validity of election of officers of an organisation - time of commencement of an clection - effect of rules of an organisation which are in contravention of the Conciliation and Arbitration Act 1904 ~- effect of rules ceasing to contravene the Act due to repeal of legislation. Conciliation and Arbitration Act 1904 s. 133(1), (3), (4A), 140(1) (2), (3), (5), (7), 5.141 BARRY THOMAS EGAN V. JAMES BERNARD MAHER & ORS. N.S.W. No. 23 of 1977 CORAM: Smithers, Evatt and Northrop JJ. 8 June 1978 Melbourne IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGTSTRY 5 No. 23 of 1977 INDUSTRIAL DIVISION ) BETWEEN: BARRY THOMAS EGAN Claimant AND: JAMES BERNARD MAIER WALTER FRANGIS MAJOR KENNETH JOUN BENNET LEO WALSH MORRIS REFD SHOP _DISTRIBUTIVE 6 ALLIED EMPLOYEES ASSOCIATION Respondents ORDER JUDGES MARKING ORDER : SMITHERS, EVATT and NORTHROP JJ. DATE OF ORDER : 8 June 1978 WHERE MADE : MELBOURNE THE COURT ORDERS:That the rule nisi herein be discharged. IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION N.S.W. No. 23 of 1977 NEW SOUTH WALES DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 BETWEFN: BARRY THOMsaS FGAN Claimant AND: JAMES BERUARD MAHER WALTER FRANCIS MAJOR KENNETH JOHN BENNETT LEO WALSH MORRIS REED SHOP DISTRISUTIVE & ALLIED EMPLOYEES ASSOCTATICN Respondents SMITHERS J. 8 June 1978 REASONS FOR JUDGMENT The question for decision in this matter is whether at elections conducted at the biennial mecting of the National Council of the Shop Dastributive and Allied Employces' Assoc- iation (S.D.A.) which commenced 1n November 1976 and after adjournment concluded in July 1977 the respondent Maher was elected National President, the respondent Magor was elected National Vice President and the respondents Bennett Reed and Walsh or any of them were elected members of th: National Executive of the Association. This question arises in an applicetion under s.1/+4 of the Conciliation and Arbitration Act 1904 (the Act) for orders requiring each of the respondents to obey the rules by cezsang to hold himselfout as being the holder of the office to which he claims to have been so elected. The claimant Parry Thomas Egan alleges that none of the respondents was elected to the offices aforesaid at the elections conducted at the meeting of the National Council because the rules appearing in the S.D.A. rule book according to whicn the elections were conducted were not valid rules of the S.D.A. at the time of the holding of the National Council meeting. The elections for the office of National President and National Vice-President were conductcd pursuant to Rules 14 and 15 which were in the following terms: "44, OFFICERS For the purposes of this rule the term Officer shall mean only those persons holding the following positions:- National President, National Vice-President, National Secretary-Treesurer end National Assistant Secretary. Such Officers shall be elected by and from the Mational Council and, if a delegate, upon election shall cease to be a delegate from any Franch whilst holding their respective positions. At the expiration of their term of office they shall be eligible for re-election. The term shall not include any person holding office of Branch only. No person shall hold at any one time more than cne of the offices mentioned in this Rule." and "45, FLECTION OF OFFICERS AND EYPFCUTIVE MIBERS (a) Nominations for the positions of National President National Vice-President ard three (3) National Executive Members shell be called for by notification to all members of National Council by the Returning Officer at least fourteen (14) days prior to each bi-ennial meeting of the National Council, Nominations shall close at the opening of the ba-ennial meeting of the National Council. Should more than the required number of nominations be received for any position a secret bailot of all membcrs of National Council shall be conducted by the Returning Officer without delay. The ballot shall close upon the return of all ballot papers but in no case shall it close later than fourteen (14) days after the ballot papers have been distributed. (b) Prior to every third bi-~ennial meeting of National Council nominations for the positions of National Secretary-Tress- urer and National Assistant Secretary shall be called for at the same time and in the same manner as the nominations referred to in paragraph (a) hereof and the ballot for these positions shail proceed in the same manner and at the same time as for the positions of National President, National Vice-President and the three (3) National Executive Members," Rule 15A provides that the conduct of the elections shall be in the hands of the Returning Officer who (inter alia) calls for nomi-~ nations by giving notice to each member of the National Council (r.154 (1)). Rule 15A (8) provides that "successful candidates shall assume office on the declaration of the poll and subject to the rules shall hold office till their successors are elected, and shall be eligible for re-election," The election of members of the National Executive was conducted pursuant to Rule 15 set out above. Actording to Rule 12(a) such members are elected by and from the members of National Council, Rule 47(e) empowers each branch of the S.D.A. to elect its own delegates to National Council, At the material times delegates of some branches had been elected at a branch election in which all financial members of the branch were entitled to vote, while delegates of other branches had been elected by and from the members of the Branch Committee of Management who had been elected to that Commitrec pursuant to an election in which all financial menbers of the branch were entitled to vote. According to these rules the National Council which elected the National officers and National Executive members was comprised of the four National Officers and branch delegates elected as mentioned above, The National Officers had been clected at a previous election by a National Council similarly constituted, By s.133 of the Act as amended by s.52 of the Conciliation and Arbitration Amendment Act 1972 (Act No. 138 of 1973) whach came anmto operation on 13 November 1973 it was provided as follows:- "433,{1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by ... organisations include a condition that the rules of ... organisations — (a) shall provide for the clectzron of the holder of each office within the association or organisation at an election at which 311 fanancial members, or all financial mepbers included in such brench, section or ovher division, or in such class, as is appropriate, having regard to the nature of the office, are subject to reasonable provisions with respect to enrolment eligible to vote; ooo eee eeasee (1A) Where, immediately before the commencement of this sub-section, the rules of an orgeunisation provided for the filling of an office, being en office the holder of which is a member of the commiitee of management of the organisation but the duties of which are of a part-time nature, otherwise than by election directly by the members of the org2rmsation who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1) but by a proucedure an which those members elect delegates to a conference or council of the organisation and those delegatcs elect a person to hold that office from amongst them- selves, those rules shall not, by reason only of that provision be taken to fail to comply with paragraph (a) of sub-section (1). (3) An association which was registered as an organisation on the date on which th? Conciliation and Arbitration Act 1973 received the Roy. 1 Assent is allowed ea period of twelve months aiter that dace, or such longer period as the Industrial keristrar determines, within which to bring its rules into conformity with the requirements of sub-section (1), ee veneroe (4A) Notwithstanding sub-sections (3) and (4), where, immediately before the commencement of this sub-section, the rules of an organisation provided for the election of the holder of an office in the orgenisation otherwise than directly by the members of the orgenisation who would be entitled to vote if the rules were in accordance with paragraph (2) of sub-section (1), but by a procedure in which those members indirectiy take part, the organisation is ellowed a period of three years after that date within which to bring its rules, so far as they relate to that office, anto conformity with paregraph (ay of sub-section (1)." Acting on the view that the rulcs of the S.D.A. referred to above were not in conformity with the requirements of s.133(4)(a)as amended by Act No. 138 of 1973, tne §.T.A, recuected the Industrial Registrar to determine a longer period pursuant to S$. 133 (3). But tnat longer period expired on 31 October 1975. The result was that on 1 November 1975 unless s.133(1A) or s.133(4A) of Act No. 138 of 1973 were applicable to the rules of the 8.D.A. as they stood immediately before the commencement of such sub-sections namely on 12 November 1973 the ruies in question did not conform with the requirements of s.133(1)(a) and purported to provide for elections otherwise than as provided for in s.133 (1)(a). It would dearly appear that s.133(1A) was not applicable to the rules of the organisation because the offices with which the elections in question were concerned were part-time offices and the procedure of election provided by the rules was that of a collegiate system of more than "one tier", Section 132(1A) contemplates a collegiate system of "one tier" only, but s.143(4A) apparently applied to elections for part-time offices as well as for full-time offices and applied where the procedure of election was thet of a collegiate system which might involve mulli ticrs. But it was 2 condition of the application of s.133(4A) that the election procedure provided by the rules should be one in which the members of the organisation who would be entitled to vote 1f the rules provided for an election at which all fanencial wmbers were, subject to reasonable provisions with respect to entitlement, eligible to vote, indirectly take part. In such case the organisation was allowed a period of three years nemely until 13 November 1976 within which to bring 1ts rules into conformity with paragraph (a) of sub-section (1) of s.133 as enacted by Act No. 138 of 1973. The question 1s whether the procedures for election of the National President, National Vice-President and National Executive members were procedures in which the members specified in s.133(4A) andirectly take part within the meaning of that sub~ section. The Elective Structure The rules provided for the National President, National Vice-President, National Secretary-Treasurer and National Assistant Secretary to be elected by and from the National Council (Rule 14). Nataonal Council was constituted by the National President, National Vice-Presadent, National Secretary-Treasurer National Assistant-Secretary and a number of delegates of Branches. The delegates would ordinarily considerably outnumber the four officers. (Rule 8) 'The National Council meets biennially. Nominations for the positions of National President and National Vice-President and National Executive members were called for by notification to all members of National Council by the Returning Officer at least 14 days prior to each biennial meeting of the National Council. Nominations for the positions of National Secretary-Treasurer and National Assistant Secretary were called for 14 duys before every third biennial meeting of National Council. In respect of all the positions mentioned nominations closed at the opening of the relevant National Council meeting. Were a ballot necessary it was to be conducted by the Returning Officer without delay (Rule 15). But the declaration of the poll took place as the second last item of business of the meeting. (Rule 10(14)). Thus at any biennicl meeting of National Council the National President and National Vice~President and the three Executive members here in issue were elected by a number of persons made up of:~ (i) the delegates of each branch; (i1) the persons who were elected as National President and National Vice-President at a National Council meeting two years earlier by delegates of branches and the then National President and National Vice-President who were elected as such two years earlier according to the same routine; and (i2i) the National Secretary-Treasurer and National Assistant Secretary who were elected according to the same routine at a meeting of National Council which took place, according to circumstances two, four or six years earlier. The National Secretary—-Treasurer and National Assistant Secretary were elected at intervals of six years by National Council constituted as mentioned above. Accordingly it could oceur and normally would occur that the National Secretary—Treasurer ad National Assistant Secretary voting at a biennial mecting had been elected at a meeting of National Council two, four or six years earlicr by a Council including a Rational Sevretary--T-casurer end National Assistant Secretary elected two, four or six years earlier than that and themselves elected according to the same routire. the After 8 July 1976 by virtue of s.2 of /Concilietion and Arbitretion Amendment Act 1976 (No. 64 of 1976) the maximum term for which an officer may be elected is 4 years, but on 13th November 1973 the rule providing for a 6 year term was valid. Accordingly. the rules provide for the election of officers and €xecutive members at an election at which the rank and file members of the organisation who would have been eligible to vote af the election had been conducted in accordence with s.133 (1) (a) indirectly took part and in which the four officers took a direct part. It was said that because of the mothnd by which the four officers had become members of the National Council their votes at an election of officers by National Council at any biennial meeting cannot be considered as the indirect votes of rank and file members who would have voted had the election been conducted in accordance with s.133 (1)(a). They were too remote from the rank and file who would vote at such an election and in any ovent, if any section of rank and file could be considered as voting indirectly through the officers at a particular election they would be a section of rank and file members of long ago, many of whom vould inevitably not be persons entitled to vote at the election if it had been conducted in accordance with s.133(1)(a). It is common knowledge that an this particular organisation the turnover of members is extremely high cf. Levoridge v. SDAEA (1977) 17 ALR 145. Contentions The contention for the claimant wos that the electoral system was one in which the office holders were elected not only by the persons who would have voted et an election conducted an accordance with s.133(1)(a) but by them an congunction with other persons. It was said that the election contemplated by s.173(1)(a) js one in which the rank and file and no other persons elect the officers and do so by direct vote. each person having a vote of equal value. It is to be noted that if this be not so then the apparent purpose of s.133 (1)(a) was subject to easy frustration. And support for the view that 1t is so is found both in s.133(1A) and s.133(4A) whicr assume that the situation where an election 1s conducted in accordance with the provisions of s.133(1)(a) is that the election so conducted is an election of officeholders directly "by" the "members who would be entitled to vote if the rules were in accordance with" s.133(1)(a), and not by them and other persons. On this view s.133(4A) provides for cases in which "those members" take part indirectly rather than by direct vote and not for cases where those members participate indirectly in the election alongside other electors. In support of these views reliance was placed by the claiment on my published reasons for judgment in Clarke v. Maynes (B. No. 55 of 1976 Australian Industrial Court 23 December 1976). The rules described above provided for an electoral system very similar in structure to that considered by the Australian Industrial Court in Clarke v. Maynes. Dealing in that case, with that set of rules, I expressed the view that on 28 September 1976 the rules there in question contravened s.140(1)(a) of the Conciliation and Arbitration Act 1904 because they did not conform with the provisions of s.133(1)(a) of the Act as then in force and were not such that s.133(4A) was applicable thereto. The actual rules attacked in that case were sub-Rules 16(1) and 16(7) of the Federated Clerks' Union of Australia which were in the following terms :- "16. CONSTITUTION OF FSDERAL COUNCTL (1) Subject to the provisions of Rule 32 the supreme control of the Union shall be vested 1n a Council, the UO members of which shall be the Federal President, the Federal Deputy President, The Federal Secretary and the Assistant Federal Secretary and the Councillors elected by each Branch on the following basis:- Branches having 1500 or less members Branches having 1501 to 3500 members Branches having 3501 to 6500 members Branches having 6501 to 9500 members Branches having 95071 to 12500 members Branches having12501 and over members 4 Councillor; 2 Councillors; 3% Councillors; 4 Councillors; 5 Councillors; 6 Councillors; t | but no Branch shall elect more than 6 Councillors." "46(7) The Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary shall not be entitled to be elected by any Branch as a Federal Councillor." So far as material my reasons for judgment in Clarke v. Maynes (supra) were in the following terms:~ "The method of election of the four Federal Officers is dealt with in Rules 23, 23A, 24 and 25. Rule 23 provides that the Federal President shall be elected by and from the members of the Federal Council in accordance with Rule 22 and that the person elected shall hold offace until his successor has been duly elected or until the occurrence of an extraordinary vacancy in the position. Rules 23A, 24 end 25 contain similar provisions with respect to the Federal Deputy President, Federal Secretary and the Assistant Federal Secretary respectively. Rule 22 provides that at mectings of Federal Council each member present shall be entitled to one vote. A biermial meeting was held in October 1976 and Federal Council purported to elect a Federal President, Federal Deputy President, and it would seem, other officers. The claimant pointed out that the procedure for election of such officers was what is known as a multi tier collegiate system, that is a system under which renk and file members in certain Branches elected a Council which in tur elected delegates to Federal Counc2l which an turn elected the officers, It appears that certain Branches of the Union elect Federal Councillors by direct membership vote, but that in other Branches the members elect a Council which then elects the Branch delegates to Vederal Council, tt The claimant argued that having regard to the presence of the multi tier procedure 3.133(1A) was not applicable to the Union Federal elections, The respondent did not contend to the contrary. The claimant contended also that s.133(4A) was inapplicable to the Federal election procedure of the Union. The respondents did contend to the contrary of this proposition. The respondents said that the procedure obtaining under the rules was one in which the members of the Union indirectly take part. Accordingly, so it was said, the organisation was allowed until 1%th November 1976 to brang its rules into conformity with paragraph (a) of sub- section (1) of s.13%. The problem raised is one of interpretation of s.133(4A) in the light of the whole of the provisions of 8.133, That section enacted by sub-section (){a) that in addition to the conditions referred to in sub-section (2) of s.132 the conditions to be complied with by organisations include a condition that the rules of the organisation shall provide for the election of the holder of each office within the organisation at an election at which all financial members are entitled to vote. By sub-section (3) it was provided that an organisation already registered should be allowed a period of twelve months after the date of Royal Assent to the Act (namely 13th November 1973) or such longer period as the Industrisl Registrar might determine within which to bring its rules into conformity with the requirements of sub~section (1). The requirement of the procedure referred to in sub-section (44) is that it is one in which members described as "those members" take part. Those members are "the members who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (41)." It is said by Mr, Keely that the procedure established by sub-Rule 16(1) and Rules 23, 23A, 24 and 25 is a procedure in which the financial members take part indirectly. He points out that by electing directly or indirectly 32 of the 36 collegiate members 111 financial members have taken part in the election of (aay er Council, and that that satisfies sub-section A). However in my opinion that is not enough. Such a construction of sub-section (4A) would mean thet it would be satisfied by a procedure by which five or six collegiate members out of 37 or more were clected arrectly or indirectly by the financial members. This would be out of harmony with the thrust of sub-section (1) (a) which clearly contemplates that the electors of officers are to be all relevant financial members and no other persons and they are to act directly. Clearly erough sub-section (4A) is intended to give time for the bringing of the rules into conformity where the existing election procedure provides for election by the financial members indirectly rather than directly. But it is another question whether it is intended to give that time where the participants are not only the financial members as such but members voting directly in the college not as delegates of financial members but deriving their voting entitlement from a rule authorising officers to vote, It 1s to be noted of course that in a case like the present each officer has the voting power of a delegate representing between 1500 and 3000 financial members. The answer depends on the meaning of the expression "in which those members indirectly take part". Mr. Keely argued that if it had been intended to indicate that the procedure must be one in which the top college was comprised only of delegates of financial members the legislature would have employed expressions such as are found in sub-section (1) (A) which speaks of a procedure in which the members elect delegates to a conference or Council and those delegatcs elect the person to hold the office. But there is good reason for the change in language. Sub-section (1A) relates only to a one tier collegiate system. Sub-section (4A) deals with a multi tiered system, It has to be remembered that sub-section (4A) 1s specifying a set of circumstances which will give relief from the requirements of s.132(1)(a). It 1s saying this relief will be given if "those members" take part. If the procedure 1s one in which other people also take part an additional element not specified in the relief provision has been added. Assistance is to be gained by spelling out sub- section (4A) in full. So stated it would read - 'Notwithstanding sub-sections (3) and (4), where immediately before the commencement of this sub-section, the rules of an organisation provided for the election of the holder of an office in the organisation otherwise than dzrectiy by the members of the organisation who would be entitled to vote if the rules were in accordance with paragraph (a) of sub-section (1), but provided for the election of the holder of an office in the organisation by a procedure in which the financial members of the organisation indirectly take part, the organisation is allowed a period of three years...' The period of three years 1s only allowed where the procedure is that described. If the procedure is one in which other persons take part 1t 1s not the procedure described and the condition of the allowance 1s not fulfilled. If one looks at s.133 more generally the approach is confirmed. What the legislature was basically seeking was election of officers by financial members wathout any college. A one tier college was to be acceptable for part time officers. A multi tier collegiate system was temporarily acceptable for full time officers, But the injection into the ultimate colloge of officers as such who would vote directly and otherwise than as delegates is something which would be a totally new idca, foreign to the basic purposes of the section, and acceptable only on there being some clear indication in the words used. It is clear therefore that sub-rule 16(1) and rules 23, 23A, 24 and 25 between them set up a procedure which does not conform with the requirements of s.133(1) and that the Union did not within 12 months of 13th November 1973 bring its rules into conformity therewith. Accordingly, if the view of the majority of the Court in The Queen v. Commonwealth Industrial Court,(1950) 103 CLR 468 (Shearer's Case) 18 applied the offending rule or rules were, as from 14th November 1974, void, because of failure to provide for election of Federal Councillors in accordance with s.133(1)(a). On 14th November 1974 the situation was that the rules of the organisation not only failed to make a provision required by the Act, but contained provisions directly in conflict with the provisions which the rules ought, according to the Act, to have contained. Since Shearer's case, s.140 has been amended and the legislature has donc nothing to suggest that tke view expressed by the majority in the cese is erroncous, In addition in Cameron v. Duncan, (1965) 8 FLR 148, I andacated that I felt Bound by that view and Spicer, C.J. at page 149 was inclined to the same opinion. It 1s said thet the view that the effect of s.140 is to render void, as from the date of the operation of s.140, a rule in conflict with the standards there laid down, is obiter dicta. If so it is ebiter dicta so closely related to the actual grounds of the decision reached that it must carry the greatest weight. In The Gueen v. Gough & Anor ex_parte Australasian Meat Industry smployees Union, (1965), 39 ALJR 240 at 243, the Chief Justice, speakiry or tne rules of an urganisation of employees, said "until the rules of the organisation are dealt with by the Court they remain the rules of the organisation and a member is bound by them". His Honour was speaking of rules which ne did not regard as ex facie oppressive, unreasoneble or unjust but which might become so if some particuler course of conduct thereunder were pursued by the organisation. But the view expressed appears prima facie at least to be at variance with that of the majority view expressed in Shearer's case, The views of the majority in Shearer's case were not shared by Windeyer, J. but that learned Judge was responsive to the difficulties which arise if a rule which offends s.140 remains cffectual es a rule until it 18 declared to be in contravention of that section by this Court. It was his view that the question of whether or not a rule contravened the section was to be determined by considering whethcr it did so at the date in relation to which its observance was challenged. In this case the validity of the rule was challenged when the rule nisi herein was sought and made, namely September 1976. As to a challenge as at a particular date there is therefore a majority of judges of the High Court whose expressed opinions support the view that the relevant date is not later than the date of challenge. In view of the legislative treatment of s.140 since Shearer's case was decided, I think it is my duty to apply the view of the majority expressed shortly by Menzies J. at pp.387~388:- "In the first place, sub-s.(1) does lay down mandatory - although in some respects general - standards to which each rule of an organisation must conform as a condition of its validity. The language is imperative and I find it impcssible to treat the sub-section as nothing more than a direction to the registrar or to anyone else about what rules must not contain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organisation shall not be of a character specified and any infringement of the prohibition therein contained must, it seems to me, result in invalidity from the time of the coming into force of the section," Accordingly, on 14th November 1974 the rules of the organisation were such that they farled to make a provision required by a provision of the Act, namely thet enjoined by $.133(1) (ay and the same would be true as at the date of the rule nisi herein if the view of Windeyer J. were to prevail. On the question of the election of officers, the relevant provision in the rules is to be found 1n sub-Rule 16(1) and Rules 23, 23A, 24 and 25 read together, Taken together they not only fail to make provision for election of the Federal Officers 1n accordance with s.143(1) (a) but make @ provision contrary thereto. Looking at 5.134% as a whole 1t would appear that not only does it allow an organisation until 14th November 1974 to bring its rules into conformity with sub-section (1) but impliedly 1t imposes upon the organisation an obligation, by that dcte, actually to amend its rules to introduce the reauired provisions, There is a contraventior of the obligation imposed by the Statute if rules not in conformity with s.133(1) are thereafter left extant. In this sonse therefore on and after 14th November 1974 rules previding for an election procedure of full time officers other than that specified in s.133(1) (a) were contrary to an implied provision of the Act. The provision of s.133(3) empowering the Industrial Registrar to take remediil action in the case of an organisation whose rules on 14th November 1974 had not been brought into conformity with the requirements of s.133(1) does nothing to weaken the view that there is a statutory obligation on the organisation itself to take remedial action within the time allowed, rather the reverse. In these proceedings the claimant does not attack Rules 23, 243A, 24 and 25, His attack is limited to sub- Rules 16(1) and 16(7}. Ik is said that sub-Rule 16(1) is unobjectionable standing by itself and therefore cannot be said to be contrary to the provisions of the Act. The same might be said of Rules 23, 23A, 24 and 25, The better approach appears to me to be to consider all the rules dealing with the election of officers as a single provision. Looked at in this way it is sub-Rule 16(1) which introduces the factor, but for which, the organisation would have been allowed until 13th November 1976 to bring its rules into conformity with s.133(1). That factor was to introduce the officers as such into the elective college. While Rules 23,23A, 24 and 25 stand, the introduction ot the officers as such into the Federal Council for all purposes including elections under those rules is a provision which is contrary to a provision cf the Act. But on 12th November 1976 s.133 took a d:fferent forn consequent upon the mectnent of the Conciliation and srbitration Amendment Act(No.2) of 1976. By s.4 of this Act paragraph (a) of sub-séction (1) of s.133 was omitted and the following was substituted:- "(a) shall provide for the election of the holder of each office within the association or organisation either by ~ (i) a direct voting system; or (141i) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system;" It 1s said that the collegiate system established by sub-Rule 16(1) and Rules 23, 23A, 24 and 25 is a system in conformity with the requirements of s.133 as so amended. But unless it satisfies the provisions of s.4 of the Act as amended by s.3(d) of the Amending Act of 1976 it is not a collegiate system within the meaning of s.135(1) (a) of the Concaliutioa end Arbilration act as amondcd, Section 3 (d) contains" the tTollowiip — "(5) For the purposes of the application of the of the definition of 'collegiate clectoral system' 1m sub-section (1) in relation to an election for an office in an organisation an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons vy and from whom persons are elected at any stage subsequent to the first stage included persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may anclude the office to which the election relates) but are not members of that body by virtue of an election 1n accordance with that derinition, being persons each of whom has held such an office (whether the one office or not) at all times since be1ng elected to such an office uuder a collegiate electoral system, or a direct voting system, as defined in sub-section (1)." A collegiate electoral system as defined in sub-section (1) of s.4 of the Conciliation and Arbitration Act as amended by s.3(a) of the Amending Act is - ",,. a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage... " The critical question is whether the four officers are persons who have held an office at all times since being elected to "such an office" under a collegiate clectoral system as defined in sub-section (1). All Federal officers elected under Rules 23, 23A, 24 and 25 and sub-Rule 16(1) in the form in which those rules now stand or hereinbefore have stood are officers who were elected to the officcs currently held by them or the Federal offices which they previously held, under a system in which they were elected otherwise than "by and from persons who themselves were elected at the next preceding stage of the then relevant collegiate electoral system". It was argued by Mr. Dalton that there was discovereble in the section an intention that the critical words should be interpreted in a manner which would accommodate officers elected according to the procedure established by the rules in question, I am unable to find any such intention express or implied. On the contrary it would appear that the legislature was prepared to accept officers to the extent of fiftcen per centum of total electing body if those officers had originally been elected as officers under a system strictly as defined in sub-section (1). This would be because such officers had a legitimate claim to have commenced their period of office by the type of election approved by the legislature for ecneral application, But there renains for consideration sub-section (4) of 5.133 as substituted by the Amending Act of 1976. By the omission of paragraph (a) of sub-sections (1) and (3) of s.133 as they stood before 12th November 1976 the Act of 1973 so far as it 1s imposed an obligation on the organisation to bring its rules into conrormity with sub-section (1) (a) of 5.133 as theretofore in force ceased to speak, The question therefore arises whether the rules which had become void by reason of s.133 1n November 1974 were restored to operation by the omisszon of s,133(1)(a) and s.133(3), together with the enactment on that date of s.4(c) of the Amending Act of 1976. It appears to me that by reason of s.133(3) of the Act as it now stands an organisation 1s not required to bring its rules dealing with elections of officers, whatever they might be on 12th November 1976, into conformity with the provisions of s.133(1) (a) which came into force on that date, until 12th November 1978, However, so far as rules which were extant on 13th November 1974, but became void on that day for non-compliance with s.140 are concerned, there appears to te nothing in the Amending Act to restore them to overation. In the absence of apparent legislative intention to revive rules which had become, and possibly had been declared, void, it would appear that the effect of the Amending Act hes nothing to say. And there is nothing in ¢.i140 itself to suggest that the condition of being void under that section 1s 4 condition which may cease to exist 1f the law by reason of which it became or was declared void should cease to exist; of Windeyer, J. in Shearer's case (supra) at p.389. It would appear therefore that in September 1976 when these proceedings were commenced an election of Federal officers carried out between 13th November 1397/4 and 12th November 1976 by the Federal Council as constituted by sub-Rule 16(1) would be invalid, and that officcrs "elected" thereunder would not take office. It is to be observed that sub-Rule 16(1) provides not only for the composition of the body which is to elect the Federal Officers, it takes such officers as have been elected as such by that body and declares that thc persons so elected shall without other election be members of the Federal Council. The Federal Council itself is a body for the election of which Regulation 115 (1)(d)(1) requires that the rules shall provides. Whether to declare persons elected to a perticular office to be members of a Committee of Management, admission to which is required to be Ly election, satisYies the Regulation, may be a question. But however that may be, it is clear that the farlure to provide for the election according to law of such persons as officers was at the same time a failure to provide for their election according to law as Councillors. So far as the inclusion in the membership of Council of the four officers is concerned it 1s sub-Rule 16(1) and sub-Rule 16(7) which accomplish that. In so far as that rule purports to appoint those persons to the Council it was in contravention of s.123(1) as it eperated from 13th November 1974 until 12th November 19°76," Clarke v. Maynes 19th May 1978 However, since the hearing of the instant case the order of the Australian Industrial Court in Clarke v. Maynes has been the subject of a successful application in the High Court by the respondentstherein for a writ of prohibition. By reason of the judgment of the High Court R_ v. Dunphy and Others ex parte Moynes and Others in that matter delivered on 19 May 1978 the contentions of the claimant in this case and the reasoning set out in my reasons for judgment in Clarke v, Maynes cannot be regarded as valid. The invalidity results from the statement in the judgment of Mason J. (at p.6 of the judgment of the High Court) with which Barwick C.J.,Stephen and Aickin Jd. agreed that: "At this point it is convenient to observe that the electoral system provided for by Rules 16(1) and (7) is one which provides for the election of office holders by a procedure in which members indirectly take part. It was therefore a case to which s.133(4A) applied with the consequence that the Union had until 13 November 1976 to bring its rules into conformity... Accordingly a departure from the requirements of 5.133(1)}(a) docs not fall within s.140/1) so long as tho time prescribed by s.133(4A) hag not oxpared... For my part then, I am unable to perceive that on tne material before 1t the Court could ecrrectly cor.clude that the two rules infringed s.140(1) (2} py viriue of diseer- formity with s.133(1)(s) as at ?Slh Gevtember 1970, Nor is my task facilitated by the Court's tailure to cxpress ats reasons for that conclusion," Having regard to the discussion in the published reasons set out above of the question whether the rules, of which Rule 16(1) was a critical part, were such as to make the case one to which s.133(4A) applied, the foundation for this last sentence is, with all respect, not apparent. But the view expressed as above in the judgment of Mason J. as applicable to the electoral system under discussion in Clarke v. Maynes is authority for the view that the electoral system provided by the rules under consideration in this case is one to which s.133(4A4) applies. Accordingly the request made by the Association to the Registrar to extend the time pursuant to s.133(4) was unnecessary. The Association had until 13th November 1976 to bring its rules into conformity with s.133(1) (a) and by virtue of s.4 (c) of the Conciliation and Arbitration Amendment Act (No. 2) 1976 which came into operation on 12 November 1976 the Association was given a further two years for this purpose. It follows that the election of the respondents Maher as National President, Major as National Vice-President and the respondents Bennett, Reed and Walsh as National Dxecutive members was conducted during the period from July 1976 to November 1977 and did not contravene s.140(1)(a) by reason of non-conformity with s,133 of the Conciliation and Arbitration Act 1904. It may be observed that it is only in a particular sense that Rules 16(1) and (7) of the Federated Clerks' Union may be said to provide an electoral system which provides for the election of office holders. Standing alone they do not do so, Rule 16(1) assumes that office holders have already been elected and Jt purports to appoint them as members of the Council. The relationship of Rule 16(1) to the electoral system which provides for the election of office holders is that it identifies the persons who operate as an electoral college at one stage of the procedure for electing the relevant officers /the organisation and who are nominated for that purpose under the description "the members of Federal Council" in rules 23, 23A, 24 and 25 referred to above. The possible effect of Regulation 115(1)(a)(i)€)} does not appear to have been raised in Clarke v. Maynes and was not raised in the instant case. Having regard to the foregoing the rule nisi should be discharged. Void or Unenforceable As indicated above, the election in question in the instant case was conducted pursuant to Rule 15 which is set out above. Unless s,133(4A) as inserted by Act No. 138 of 197% was applicable to it, that rule was in contravention of s.140(1)(a) for lack of conformity with s.133(1) (a) on 1st November 1975. However, by s.4(c) of the Conciliation and Arbitration Amendment (No. 2) Act 1976 (No. 117. of 1976)a period of two years from 13th November 1976 was allowed to the organisation to bring its rules into con- formity with s.133(1) (a) as then in force. It is now established that s.133(4A) was applicable to Rule 15. Accordingly it never has been out of accord wilh the provisions of s.133 of the Act. If however, that had not been the case, then on 1st November 1975, the provisions of Rule 15 would have been in contravention of s 140(1)(a). If the result of that were that it was rendered unenforceable or inoperative as a provision creating or affecting legal rights or duties but nevertheless remained in existence as a rule of the S.D.A., then, when its provisions ceased to be in contravention of s.140(1)(a) they would regain their legal effectiveness, In such a case the election conducted under Rule 15 would have been conducted pursuant to a valid and legaliy operative rule, On the other hand, if it were the result of Rule 15 being in contravention of s.140 (1)(a) on 1st November 1975, that Rule 15 ceased to be a rule of the S.D.A., so that the situation was the same as if its provisions had been repealed, then on 12th November 1976 those provisions were simply not part of the rules of the Association and Act No. 117 of 1976 would not re-enact them. - Argument in support of each of these alternatives was submitted during the hearing of this case as it was not then established that s.133(4A) was applicable to Rule 15. But in view of the decision of the High Court in k v. Dunohy « Ors Fx Parte . Maynec (sunra) it is umnecessary to decide which 1s the correct view expressing and I refrain from / a concluded opinion in the matter. Never- theless the circumstances are such that it may be useful to draw attention to considerations relevant to the issue. The issue may well arise with respect to rules which offcnd not only s.140(1)(a) but also those which offend 140(1) (b), (c) and (d). It may be that it would be beneficial to union government that a rule which becomes inoperative because it offends s.140(1) by reason of particular circumstances such as imbalance between the numbers of members in various branches should if and when a tolerable balance were restored, become operative again without being re-enacted by the organisation or by Statute. As at present advised I see no disadvantages in the law being to that effect. But there is a real question whether this is the state of the current law. By s.80 of the Conciliation & Arbitration Act 1904-1955 it was provided that "the Court"might disallow any rule which in its opinion was contrary to law or to an award, which was tyrannical or oppressive, which prevented or hindered members frou observing the law or any award, or which imposed unreasonable conditions on membership upon applicants for membership and that any rule so disallowed should be void. The Conciliation & Arbitration Act 1956 renumbered that section as s.140. That section provided for the exercise by the Commonwealth Industrial Court, of the power of disallowance and enacted that rules disallowed by 1t should be void. In Rv. Spicer ex varte Australian Bu1rlders' Labourers' Federation (1957)100 CLR 277 it was held that the power of disallow- ance was a non judicial power and accordingly one which could not be conferred upon the Commonwealth Industrial Court. In 1958 after that decision, Parliament repealed s.140 as then in force and enacted s.140 in terms which sufficiently for current purposes, were in line with these of the section as now in force. This present discussion and indeed the existence of the issue under discussion depends on the validity of the view that s.140(1) operates of its own force upon the rules of organisations independently of any declaration by the Court being made pursuant to subsequent sub-sections. On this basis, which has been accepted by the Court (see Leveridge v, SDAFA (1977) 17 ALR 145) it is clear that when a rule comes into collision with the provision of s.140(1) it immediately suffers some change in its legal status, The relevance of the provisions of s.80 (supra) and s.140 as first enacted is that the consequences to a rule,of being disallowed,was simply that 1t became void. It cannot be thought that it was intended that such a rule remained in existence in any sense as a rule of the organisation; the rule was simply void. Under those provisions the section did not operate upon a rule until the Court haddisallowed it, Under the 7958 provision Parliament, for the purpose of achieving by gudicial process the substance of what it had unsuccessfully sought to achieve by 8 non judicial process, itself laid down criteria non compliance witn which, would constitute a contravention of the section. The ultimate consequence of such a contravention was that the rule on and from a declaration being made with respect to it was void. But as s.140(1) operates oa an offending rule of its own force and independently of ary declaration by the Court a question immediately arises as to the nature and effect upon an offending rule of s.140(1) so operating. The question is whether Parliament intended that the consequences of unlawful contravention attaching to a rule by reason of the operation upon it of s.140(1) of its own force should be different in nature from the consequences flowing from a declaration that the rule was in contravention of s.140(1). Whatever those consequences are 1c is without doubt that the rule becomes inoperative. For the purposes of the issue presently under discussion it is necessary to keep in mind the special purposes of s.140(5). As to this reference may be made to Shearer's Case (supra) per Fullagar J. at 379 and per Menzies J. with whom Taylor J, agreed, at pp 388 and 385 and inferentially, per Kitto J. with whom Dixon C.J. agreed, at the end of his judgment at p.385. Reference may also be made to Leveridges Case (supra). Having regard to that special purpose it is reasonable to think that in s.140(5) Parliament was not enacting that the consequences to a rule of a decision that it contravened s.140(1) should be different in nature, from the consequences inevitably suffered by an offending rule under s.140(1) itself. Rather it was enacting, that once a declaration that a rule contravened 3.140(1) had been made by the Court as between parties, the same consequences of such a contravention as would occur under s.140(1) itself without any such declaration, should thenceforth be established as binding on all the world. Those consequences were fhat the rule was void. Of course the basis of all this is that the view of the majority in Shearer's Case (supra) is correct end it 1s to be noted that there is no hint in the decision of the High Court in R_v. Dunphy & Ors Ex Parte Maynes & Ors (supra) that those views are not to be relied upon. Having regard to these considerations it is not easy to identify any factor indicating that Parliament had in mind a distinction between the state of being void which it had persistently imposed upon an offending rule in s.80 and s,.140 as first enacted, and still provides for a rule declared void, and the condition which it intended to impress upon an unlawful and contravening rule on which it intended s.140(1) to operate of its own force. The Justices in Shearer's Case (supra) who considered the basic questions whether s.140(1) operated upon rules of its own force used different words to describe the consequences offending the rule if s.140{1) had so operated. Fullager J. expressed the vView.~ "Apart from sub-section (5)the position is simply that sub-section (1 makes unlawful,aad therefore void ,any rule having any of the specified characteristics..." (103 C.L.R. at 377) again at page 378 he said:- "Sub-section (1) of section 140 forbids an organisation to have any rule which possesses one or more of certain specified characteristics (some rules prohibited would be unlawful without express enactment), Rules which fall within the forbidden classes are void. This as it seems to me,must be soy I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub-section (1)they are invalid and void." Menzies J. with whom Taylor J. agreed, speaking of s.140(1) said:~ "In the first place ,sub-section (1) lays down mandatory- although in some respects general standards to which each rule of an organisation must conform as a condition of its validity. The language is imperative and I find it impossible to treat the sub-section as nothing mcre than a direction to the Registrar or to anyone else about what rules must not coutain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organisation shall not be of a character specified and any infringment of the prohibition therein contained must 1t seems to ms result in invalidity from the time of the coming into force of the section ... Finally, when the Court has made an order declaring that there is a contravention of sub-section(1)it as sought by the section to effect the consequential result i.e.., by the provision of sub-section (5) that wnen the Court makes an order there 15 a contravention of sub-section (1) the rule or that part of the rulc,as the case may be shall be deemed to be void from the date of the longer order, so that the question of its future validitv is no / a question open in any proceedings before any Court. What is attempted, as I understand it, is not to give an order of the Court inter partes a binding effect as against the world; it 1s rather to treat 4 gudicial order as a step in a legislative process of invalidating rules for the future whether or not the order was correctly made". (103 CLR at 3&7 ) McTiernan J. said:- "Tt follows from the mandatory language of Section 140 (1) that any rule of an organisation which 1s contrary to the provisions of the sub-section is unlawful and for that reason is not enforceable in any Court... The wider purpose of section 140 1s to rid an organisation of a rule which contravenes sub-section(1)."(107 CLA at 374) Although Kitto J. took the view that s.140(1) did not operate of its own force upon a rule which contravened its provisions he did refer to what would be the consequences to such a rule if it did so operate. His Honour spoke of the provision in s,.140(5) that where the Court by order declared that a rule contravenes s. 140 (1) the rule is deemcd to be vo1d as from the date of the order, and said that from that provision "the implication seems 1o mc to be clear that until that date the rule (or part ) is not intended to be void for contravention of sub-section (1)". . Honour But his/added "no doubt if that sub-section were to be ccnsidercd by itself ,it might well be understood as intending to muke void for illegality rules contravening its provision."(See 103 CLR at 380) With these expressions Dixon GJ. stated his agreement (see 103 CLR at 372). It seems clear that Kitto J. and Dixon CJ. considered that the possible alternative constructicns of s.140 were either that a rule in contravention of s.140(1) became void in the sense of null and void only as a consequence of an order declaring it to be 1n contravention of s.140(1) made by the Court, or that such a rule was "void for 1llegality" as soon as 1t contravened s.140(1), They preferred the first of these alternatives and to my mind did not consider that there was a third possibility, namely that contravention of s.140(1) by itself and before the making of an order pursuant to s.140(3) or 140(5) may operate on a rule and may render it unenforceable but not affect its fundamental status as a rule. Such a possibility sits uneasily with statements that a rule which contravenes s.140(1) is void for illegality, void or invalid. And in this respect the words of Kitto J, and Dixon C.Jas I understand them support the view of Fullagar J. that if, as I consider I must accept, s.140(1) does operate per se upon the validity of a rule which contravenes it, Lhat operation renders the offending rule void. It is to be noted also that in discussing the factors which led him to conclude that s.140(1) did not operate per se upon an offending rule,the remarks of Kitto J. indicate that he took into account that it was not to be thought that a rule might by reason of the operation of s.140(1) become invalid by reason of some temporary circumstance and become valid again when that circumstance ceased to exist. It would appear to me that his Honour having dismissed the possibility that rules which had become invalid could later tecome valid regarded the situation before him as one in which rules offending s.140(1) would be totally and permanently void by one of two avenues, either by the direct operation of s.140(1) or the making of an order under s.140(3) or 140(5) declaring the rule to be in contravention of s.140(1). It appears to me that his Honour was saying that as the cause of a contravention of s.140(1) might be some temporary circumstance occurring, perhaps almost without being noticed, it was unsatisfactory that a state of voldness of a rule should arise except by some overt arid prominent act, such as an order of the Court declaring the rule to be in contravention of s.140(1). If this be a correct assessment of his Honour's remarks it establishes that in the view of Kitto J. and Dixon C.J, there was no question of a ruie on which invalidity had once descended ever becoming valid at a later stage, and that by the operation of 5.140 a rule offending against s.140(1) would ultimately become permanently and totally void either by direct operation of s,140(1) itself or by the operation of s.140(5). If therefore, the ultimately preferred view 1s that of the majority,of the High Court namely that invalidity is the result of tne direct oncrat- views of aon upon a rule of s.140(1) itself, then the/Kitto J. and Dixon C.J. combine with those of Fullagar J, to describe the effect of that operation as creating a statc of total and permanent voldness in an offending rule. The passage containing the relevant remarks of Kitto J. which should be read in conjunction wath the passage from his Honour's judgment quoted above, is as follows:- "No doubt if that sub-section were to be considered hy itself, it might well be understood as intending te make void for illegality rules contravening its provisions. But the section considered as a whole appears to tie to embody a coherent plan for which the whole {function of sub-section (1) is to take an essential preliminary step. The step 1s to lay down propositions in relation tc which the rest of the section is to operate. propositions in the form ef prohibitions to be observed by every rule on pain of liability to tnvalidation by the operation of sub-section (5) upon the non-obdservanee being judicially declared 1n proceedings brought for the purpose by a member rather than to enact absolute prohibitions intended to have a separate and independeut invalidating effect. If the contrary had been intended, the cuimi- nation of a proceeding under the section would suicly have been a declaration of the pre-existing invalidity of the inconsistent rule, instead of being an order which says nothing at all about invalidity but fulfils a condition which the @ction prescribes for the stetrutory avoidance of the rule for the future. The view I have expressed seems to me to find support in the neture of sone of the prohibitions themselves. 1 necd refer only to the provision of par. (b), that a rule shall not be such as to prevent or hinder members from observing the provisions of an award. Whether a particular rule contrevenes this paragraph is a question which may require different answers at different times, having regard to the terms of the awards in force for the time being and the industrial situations to which they relate. The invention can hardly be that invalidity shall attach to a rule as soon es a situation arises in which the rule fills the description shall endure while the situation lasts, and shall cease when the situation comes to an end. It 1s a much more likely intention that when the Court fiuds a contravention of sub-section (1) existing at a particular time, and the organisation, if given an opportunity to alter the contrs~ vening rule, has not altered it the rule shell thereunon become void." (103% C.L.R. at 480-381) ¢ Je Support for the notion that the state of unlawfulness caused by the operation of sub-section 140(1) is to render a rule unenforceable but not void may possibly be found iu the words of McTiernan J. at p.373 quoted above, but it is not apparent that his Honour was directing himself to that distinction. However, there is support in the judgment of Windeyer J. for the view that a rule which had at some stage in its history contravened sub-section 140(1) could by reason of a change in circumstances become a valid rule, and the same is true in respect of possible implications from the remarks of Mason J. in his judgment inR. v. Dunphy & Crs Ex Parte Maynes & Ors (supra He said:- ad ' "In this context, despite the contrary view of Windeyer J. expressed in Shearer's case. at p. 389, it 1s my opinion that the court's order in accordance with s.140(2) and (3) speaks as to the rules as at the date of the order. An order should not be made by the court unless it is satisfied that the relevant contravention exists at the date of the order. It is from then that a rule declared to contravene s.140 (1) 1s deemed to be void and it 1s from then that time runs under s.140(7). It would be strange indeed if the court could make an order that a rule contravened s.140(1)(a) unless it was satisfied that the contravention persisted to the date of the order. For if the contravention has been rectified or has been terminated between the commencement of the proceedings and the date of the order, it would nevertheless be deemed to be void by vartue of s.140(5) as from the date of an order declaring the contravention. Expressions such as "void" and "invalid" and even "void for illegality" may be used in a context in which it would be correct to construe them as indicating a condition of less than total nullity. But in the case of tne use of those expressions by the Justiccs who used them in Shearer's cace it is certainly a serious question whether in so describing a rule which contravened s.140(1) they had in mind any qualitative difference between what they were describing and a condition which may, inelegantly but accurately, be called voidness in the full sense. Practical It seems clear that one factor influencing Windeyer J, in Shearer's case (supra) to conclude that an order made by the Court under s.140 might properly be made to speak as at the date of the rule nisi was that it might not otherwise be possible for a union member against whom action were taken under a rule which contravened 5.140(1) to obtain the protection of the Court. The kind of situation contemplated is exemplified by the events which occurred in the Australian Workers'Union in 1965 which were before the Commonwealth Industrial Court in Cameron v. Duncan (1965) 8 FLR 748. viens, The situatior is described at p. 24Gof the report as follows:~ "Turning to the action of the executive council against the claimants under r.36, Miss Mitchell relied on the order of this Court made on 11th June, 1965, in which it declared that r.36 contravened the provisions of 2.140(1) of the Conciliation and Arbitration Act 1904-1965, By virtue of s.140(5) the rule 1s deeméa Void as from that date for all purposes and bctween all parties. But Miss Mitchell submitted that the reasons which induced the Court to make the declaration were applicable to r.36 at all mater1al times prior to the decleration by this Court on 11th June, 1965, With this I agree. She submitted, therefore, that the rule was void in May 1965 when the branch executive members were superseded, For this last step she relied upor. the view of the majority of the members of the High Court in The Cuecn V. Cainmon- wealth Industrial Court; ex parte The Sw Leamay O sapaleering Une Australien Section R355 to tae eifect tict a union rule which contravenes s.740(1) is void from the tame when s,740(1) came into operation. Mr. Ludeke contended that the expressions of the mombers os the Court to this effect were not essential to their decision ard that the matter is therefore not finally concluded so far as this Court is concerned, He submitted that a rule contrary to s.140(1) was valid until a declaration to the contrary was made by this Court. The view for which Mr. Ludeke contended would enable a branch executive or the executive council to discipline or expel members under rules obnoxious to the legislature provided that 1t could carry its proccedings to a conclusion before the accused could obtain a declaration from the Court under s.140 or relief under s.141. In this case Wright, having been charged by lettcr dated 8th April 1965, calling upon him to appear before the executive council on 3rd May, 1965, moved with reasonable promptness. He obtained a rule to show cause in this metter under s.140 on 28th April, 1965. It was heard on 18th and 19th May, 1965, and the declaration was made on 11th June, iC65. But the supersession occurred on 6th May, 19€5. The other claimants relied upon the outcome of Wright's application but they were also dealt with on 6th May, 1965, the executive council having refused apnlications for an adjournment pending judgment by this Court. If a rule contrary to s.140(1) 1s good until a declaration of invalidity is made under s.140 persons charged under a union rule, in fact contrary to s.140(1) but not so declared, are, to say the least, in a difficult position, and might well suffer pains and penalties in circumstances where, subgect to procedural requirements, 1t was not so intended by the legislature." It is quite likely that situations would occur in which the protection of the Court could not be invoked in time even if the view of Windeyer J. had been held to be correct. However the practicalities are resolved by implementation of the view of the majority in Shearer's case that s.140(1) operates upon rules of organisations of its own force, in the procedure provided at 148 et seo and 175 for in s.141 and in other proceedings, c.f. Leveridyes case (supre) / Thereby effect is given to the principle enunciated by Windeyer d. in Shearer's case (supra) at page 389 that the status of a rule as enforceable or otherwise,in the light of the provisions of s.140 of the Act, should be determined by considering whether it contravened s.140(1) at the date in relation to which itz observance is challenged. The important thing is that through J? the operation of s.141 and other proceedings justice may be extended in accordance with the view of the majority and the principle enunciated by Windeyer J. where there has not been time to obtain reliaef by an order under s.140, The principle enunciated by Windeyer J. is of course fully applicable whether the effect upon a rule of s.140(1) of its own force is to render the rule void or merely unenforceable, Conclusion By reason of the effect of 5.133(4A) of the Conc .liation end Arbitration Act 197% (No,138 of 1973) it has not been shown thst the electoral system provided by Rules 12(a) and 14 of the S,D.A. contravene s.140(1). Accordingly the rule nisi here:zn must be discharged, I eertify that this and the 3< preceding pages are a true copy of the Reasons for Judgment herein of his Honour 'ir. Justice Cm Ss 7; AAbipncio. ciate As Late hated: 5 6.78 IN YRE FEDERAL, COURT OF AUSTRALTA INDUSTRIAL PDIVISTON ie] he oO ~ 3 June 1978 | No. 23 of 1977 IN TRE MATLURR of the and arbitration Act, amended ARD IN TER undars Soctsons 140 stad Act. RBETWUITTs: MAITNR of a PARRY THOMAS Conciliation 1904 as iemmal AND: JAnES BURT Ne WALINE KE. Claismant Tm wins mat LTSl., OVLE ~ Respunivats This 1s the return of an order nisi granted on 11 Novauber 1977 1n which the claimant a membor of the Shop Distributive and Allacd [Imployecs Association ( the organization) seeks orde1s pursuant to 5.141 of the Conciliation and Arbitration Act 1904 (the Act) that the respondents other than the organization perform and observe tho rules of the organization and for further orders pursuant to s.140 declaring chat x.12(a) and r.14 of the National Rules of the organization contravene s.140(1) of the Act. During the hearing Mr Handley Q.C., who wiih Mr Konzieé appeaced for the claimant asked that the order nisi seching orders pursuant to 5.140 be not procraded with at that point of time for reasons which are set out latex herein. The Court heard the matters raised under s.141 of the Act. These matters concern purported elections fo: the filling of the offices of National President and Vice President of the organization and of three other National Executave members which commenced in November 1976 and concludei later in that month in respect of all positions other than National President which concluded in or about June 1977. The orders sought in this regard are that each of the five respondents who had been declared elected to the respective offices cease to hold hamself cut as the holder of the office to which he was purpeortcdly elected. The validity of the elections was chalicnged on the besis that. the rules under which such elections were conductcd had at a point of time antecedent thereto beccme contrary to the provisions of the Act and in particular contrary to 8.133 prior to its amendment on 32 November 1976 by Act No. 117 of 1976 and that as a resuit of such contra- vention such ruics either by force of 5.133 itself on s.1i0(1) er both had become void at the tine of such contravention and had thereafter remained void and of no effert. , wef2ae A copy of the rules of the organization cert: Ficd by the Registrar pursuant to s.157 on 16 December 1975 was tendered. That section provides that such a copy shall be prima facie cvidence of the rules of the organization. Such rules provide that there shall be a National Ccuncil, which shall consist of four National Officers and delegates from affiliated Branches; that the Branches elect their own delegates to National Council and that the Branch rules make provision for such election. The National Council is the governirg body of the erganization and ordinarily meets biennially. Between meetings of the Council the affairs of the organization are managod by a National Executive the constitution of which is providcd for in r.12. Rule 12(a) and (b) 1s as follows : "12. CONSTITUTION OF NATTOVATL -XRCUTIVE (a) The National Pxecutive shall consist of the National President, Natzronal Vice-President, National- Secretaryv-Treasurer, Mutronal Assistant Secretary and ait least three (3) other membors elected by and from the Maiiona] Council at its ordinary biennial meeting. If any brancn is not otherwise' represented cn the National iNecutive, the Branch Council of that branch may elect one of its delegates to Federal Council to be a member of the National Executive. (b) Each momber of the National Executive, other than the National Secretary-Treasuser and the National Assistant Secretary shal] held office until such time as his successor 15 clected." Rule 14. was purportedly amended in October 1975. The validity of the amendment 1s a matter in issue in other procecdings. The purported amendment does not afrect the issucs raised in the matters under considcration in this proceeding. Rule 14 prior to the pusported amendment is as follows : "14, OFFICERS For the puirposes of those rules the te.m Offtecr sha]l mean only those persens holding the folle. ing positions :- National President, taticnal Vice -Ppraside nt, National Secretary-Treasurer and National Assistant ~-f3.. Secretary. Such officers shall be clected by and from the Natzonal Council and, if a delegate, upon election shali ccasc to be a delcgate fiom any Beanch whiist holding thea: respective positions. At the expiration of their term of office they shall be cligible for re-election. The term shall not include any person holding office of Branch only. No person shall hold at any one time more than oaec of the offices mentioned in this Rule." Rule 9(e) empowers the National Council to "appoint a Returning Officer for the conduct of clecticns for positions in the Association". Rule 10 provides for National Council mectings and prescribes an order of businces for those meetings. IJIten. 1 1s the close of nominations for the Netional Cffices and for positiors of National Cxecnvrive menbers. litem 5 is the appointnent of a Returning Officer. Item 14 as the ceclaration of Ballot ot Statoment by the Returning Officer. Rule 15 makes provision for the election of tha officers and Exccutive members. For present purpusos 1.15(a) and (b) only are relevant. They read :- "15. LLUCTION OF OFFICURE AMD LNPCUTIVE No UBePs (a) Nominations for the positions of National President, Nataonal Vice-Frazicvnt and three (3) National Dxecutiv: MNeubers shall be called for by notification to all members of Wational Councia by the Returning Officer at least fourtcen (14) days pricr to each biennial mecting of the Wational Council. Nominetions shall clos: at the opening of the bienniel mecting of the National Council. Should more than the required nimber of nominations be received For any positron a secret ballot fur ali nembere of ational Council shall be conductec by the Returning Officer without delay. The ballot shall clos? vpon the return of all ballot papers buocn no cars shall at close later than fourte n (14) aays after the ballot papers have been distributed. fee ~4- (b) Prior to every third bi-cnnial meeting of National Council nominations for the positions of National Soctetary-TreasuLer and lational Assistant Secretary shall be called for at the same time and in the same manney as the nomination. referred to in paragraph (a) hereof and the ballot for these positions shall prx2 eed in the same manner an@ at the same time as for the positions of National Prasident, National Vice-President and the three (3) ational Executive Menbers. " Rule 15A. provides that the conduct of the elections shall be in the hands of the Returning Officer who (inter alia) calls for nomanaticns by giving notice to each mernber of the National Council (r.154.(2)). Rule 15A. (viii) provides that "successful candidates shall assume office on the declaration of the poll and subject to the rules shall hoid office tall their successors are clected, and shall be eligible for re-election." Rule 37(f) empowers each Branch to elect its own delegates to National Council. 'The rules of the various branches of the organization were al relevant times such that the delegates for some branches were elected pursuant to an election in which all financaal members of the branch were entlitted to vote whilst delegates from one or mere of the other branchcs were elected by and from members of the respective Branch Committee of Management the members of which had been elccted pursuant to an clection an wnich all financial members of the branch were entitled to vote. It was common ground : - (i) that the duties of the holders of all five positions : were at all relevant tines of a part-time nature; (2i)that the elections for the filling of the five particular positions were carried out under and in accordance with the abovementioned rules; (aia)thet the opening day of the 1976 ordinary biennial meeting of the Natrerad Coun 1h wes 23 November J976;3 ({av)thot the Returning Officer called for nowinatzons for the said positions on 8 Uavember 1976 by (v) notification to all purportcd mambers of National Council (r.14.(a)); , that one valid nomination only was received in respect of each of the positions of National Vice~ President and the 3 National Executive members by 23 Now mber when nominations closed (x.15(a)); (vi)that accordingly the Returning Officer that day purporledly declared the Respondents Mr Major, Mr Bennett, Mr Reed and Mr Walsn clected to the positions of National Vice-President and National Executive members respectively, no ballot being required; (vii)that two valid neminations were received by the Returning Officer in respect of the position of National President and accordingly a ballot was conducted for that position "without delay" (r.15(a))) under the provisions of r.15A.; (visi)that the declaration of such ballot was made by the Returniny Officer on or about 4 July 1977. (The reason for the delay between the holding of the ballot, which according to r.15(a) was to clese not later than 14 days after the ballot papers had been distributed, and the declaration of the ballot was not explain=d); (ax)that the Respondent Mr Maher had purportedly been (x) (x3) (x21) elected to the position of National President he having received a majority of the votes in such ballot; that the Respondent Mr Maher had beon first olected National President by and from Netione}] Council in accordance with r.14 in October 1970, and that thereafter he had becn re-clected by and from the ordinary biennial Nattonej] Councr Stn 1972 and 1974. that 12n October 1968 Mr Maher had been elected National Vice-President by and From Katronal Council in accordaner with r.14, that Mr Maher had since 1968 attcrded each biennial meeting of Nataonal Council ar an cfficer within tho meaning of r.14 and not as an elected dalegate rrom a Branch, ../6.. (xiit)that Miz Maher had first hzcome a deleqate to National Council from the Vactorizan Branch of the organiration aun 1953 having been clect:.d such delcgate by and from the Comuttee of Management of that Brénch th members which had been clected thereto pursuant to an clection in which all financial members of that Branch were entitl«da te vote. He had been so re-clected as such Gelegate trom time to tim> until he became an officer within the meaning of r.14 in 17368, (xav)that the Respondent Mr Major hao been farst elected National Vice-President in accordance with r.14 by and from the fational Council in October 1970 and had been so re-clected to that office in 1972 and 1974, (yev)that Mr Major since 1970 attended each ordinary biennial meeting of the Natioral Council as an officer within the meaning of r.14 and not as an elect:d Gelegate of a Branch. (xvi)llhat Mr Major when first clectec Vace-Presidont by and from the National Council in 1970 had attended that Council as a delegate from the Qucenslend branch having been clected as such delegate by and from the Comnittse of Management of that Branch. The maibers of that coumittece had been elected purssuant to an election jn which all financ1al memb23s of the Branch were entitled to vote. lie had been previously clected in accordance wath tha Queensland Brauch rules as such delegate over a perioa of many years. (xvis )that che Respondent Mr Bennett had bocn elected a National Executive Member jn accordance with r.12(a) by and from the Yational Council at its ordinary biennial meoting in October 1474, (xviii)that at all material times since 1969 I'r Bernete had been a Geleygate to National Council from the Tasmanian Branch, heving been elected in accordance with that Branch's rules by a ballot at which all financial im.nbo; s were ontiticd to vote, oe/7Te- (xix)that the Respondents Messrs. Reed end Walsh wore never officers of the org@nization within the meaning of r.l4 and until their purported celcction as Natzronal Exccutive membsars in November 1976 ne1tho: had held such positions. Both were delegates to National Council from the Victorian Bronuch cuch having kcen so elected by and from the Committeoa of Management of that Branch, the members of which had been clected thcrétec pursuant to an election in which financial] mombers of the Branch were entiticd to vcte. Further 1t was conceded by the claimant for the purpose: of this proceeding that the rules set out herein were the rules of the oigenization immediately bofore the coming into operal1on on 13 November 1972 of s.52 of Act. No. 138 of 1973 which amended s.132 of the Act, the relevant purts of which are set out later. In proceedings such as the present brovght pursuant to s.141 of the Act the Court has to determine the validity of rules at a particular antecedent point of tame. This will involve a determination whether a relevant rule was contrary to a provision of the Act or Regulations at that point of time. If such was the case, then s.140(1) by 1ts own Loree anvalidates the rule and any act or thing then done under or dependent upo: such rule was unvalidly done and of no effect. R.v. The Judccvs of the Commonwyalth Trndustriel Court Ty narte th Anatoenated Fnginceving Mnicn (1960) 103 C.L.R. 366 (Shearer's Case). So where a purported election is held under a rule cr rules which the Court subsequently determines was or were contrary to the Act or the regulations at the pounl of tame yen sich Clection wes held, then the clectionvwas invelid end of no effect and th. Court should subjcet to a gencral discretion make an order acco? dingly unless prolibited by sub-sections (6) oF (7) or unless 1t postpones its acttenmanalicn in acco: dunce na a aor with sub-section (&). It should bo notud that sub-section ~ 5) 1s through the effluxion of time spent while sub-section (70) provides that "clection" within the moaning cf s.141 includes a purported election that 1s a nullity. In my view the question. for determination hy the Court 1n such prececedings are (1) the relevant anteccdent date, (112) the provisions of the Act or Regulations at that date; and (111) whether the relevant rules were then contrary to such picvisions. In the present case, I am of the opinion that the relevant antecedent date is 8 Novembe: 1976, the date when nominations for the five positions under challenge were first called. In my view an election of the kind with which the Act 1s concerned comvences net Later than the opening date of the poriod during wnich the neminatiroue of candidates may be lodged and the rutes of an oxganizution at that date are the rules which control the conduct of the election throughout. An essential step in any election is the culling for nominations. In [ricnd v. Barnes (1969) 15 FLL.R. 1&4 Spicer C.d. and Smithers J. an a joint judgment said at p.201: "That the calling for and receiving of noninations are integral parts of the conduct of an cje stion ef the hind with Which the ConciJsation and Arbitraticen Act is concerned 1g not to be doubled. Elections in organizations of thevisands of inclubors can not be carried ort if such stops be ompritted. sbury's Law of Fngland, 3rd ed., vol. 14, Pt.2, ss.4 and 5, and to May's Parliomentary Practice cenfirms that the concept of couducting an election extends to the initiating process such as the assuao of the writ, the calling for noarnations and their scrutiny, as well és the oc tual process of arranging tor and 1cceiving the votes end declaring tho poll." Refe:ence te Hal Steps in or in cornex.ion wilh clectiens, includs the deteripination of the tunes and dates of the ccamensemont +/9-- and the closing of the period for lodying nominations of candidates, the scrutiny and determination by the returning officcr of the validity of such nominations, the determination and preparation of the roll of voters, the determination of the electoral system under which the ballot 1s to be conducted and of the period a1 the ballot, the deteimination of the methecd of issuing and the return of ballot papers, the Gel.ormination whether duplicate Lallot papers should be issued, the ccunting and scrutiny of the ballot and the declaration thereof. ach 7) Tach step 1s am integral part of the election and determinaticn involves formal decisions arrived at by rules which should be known and accepled in advance. It is the essence of a democratic cloction that such rules are so known and remain unaltered after the electicn commences. ' In my view this principle epplies to an election of the kind with wiich the Conciliation end Arbitration Act 18 concerned and, 21f after such an election has commenced, amendincnts to rules governing such elections are certificd such amenced rules will not apply to that clection unless clearly expressed toa do so and then only if the Act or regulations clearly permit that such amendments are to apply to an clection which has conmenced (cf. Boesor_v. Tlayucy & F.L.R. 292). In my view this principle also applies where during th currency of an clection of officers of an organization the Act 1s amended so as to remove or negate conditions which, prior to such amendment, had resulted in rolevant rules boing 1n contravontion of the previsions of ihe Act. ~-/10.. The Act does make provision for "officially conducted" (£.141(9)) elections. In Part 1X ~ Disputed Elecvcions in Organizations - the Act empowers the Court to make certuin orders which could have the effect cf altering such rules (s.165). Again s.l70h empowers the returning cfficer conducting elections under either s.165A or s.17UA to take such action and give such dzrect.ons as he considors necessary 1n order to ensure that no irregularities (as defined) occur in or in conncx.cn with the election or to remedy any procedural defecis in the rules of a particular oryanization notwithstanding anything cor.tained in such rules. Further, since 1976 the Act has made provision that where the rules of an organization provide fo. electicns by a direct voting system for offices in that organization then the result of such elections shall b= determired ly secret postal ballot (s.133 (AA)). where such rules do not provide for such a ballot in such elections then regulations under Part. V AA (reg. 146 AA - 146 AI) aprly. In my view such regulations clearly recognise that all tire steps referred to therein are integral parts of an clecLlion with which the Act is concerned and, 3n my view, ace bat a legislatist Ponovncertntof what have long been recogniscd as basic stops in or ain connexion with any democratic election. Having determined that the relevant aniccedent date in tho present matter is 8 Novembe:» 1976, consideration must then be made as to the previsions of the Act ox the Regulations at that date and a determination maas as to whether or not the rules under which the clccticns vere condected then contravened such piovisions. - ill - The relevant provisions of s.133 of the Act as at 8 November 1976 were :- "193.(1) In addition to the conditions ref_rred to an sub-section {2) of section 132, the conditions to be complied with by .......... organizations include a condition that the rules of .......... Organizations — (a) shall provide for the clectaicn of the holder ef each office within the association or erganization at an eiecticn ab wuich ald financial momb2rs, or all f2nancial mewbe) s included in such branch, secticn or clher division, or an such class, as is approp: iat, having regard to the nature of the office, ure subject to reasonable provisicns with rosp:cl to enrolment, cligible tu vote; (1A) Where, inanediately before the crumeneawut 7 this sub-section, the rules of an orgqanination provided for the filling of an office, boing an office the holder of which is a member of the counties of management of the cigeuirzation but the dutic; of which are of a part-time nature, othory by electicn directiy by the moubers of 7 who would be entatlead to vote if the rules wer accordance with paragzeon (a) cf sub-section ( c Ore © in but by a procedure in which those manb-1s ele Gelegates to a conference cr council] of the erganization and thore aticoates clect 4a porson to hold that office from emonjget. themsclies, those rules shall not, by reason only oc thet provision, be taken to faz1 to ceorwply with paragraph (a) of sub-section (1). 1) (3) An Association which vas registered as an organization on the @ate ou whoch the Conciliation and Arbitration Act 1973 received the Royw] Assent is allowed a period of twelve months arter that date, or such lornge?: nevried az the Inaustrial Registrar determinzs, within vaich to bi ing rules anle confocmity with the requirements sub-section (1). sts of a (4A) Notwithstanding sub-csctions (3) and (4), where, imrediately bofore the caommencen ml of 1s sub-section, the rules of an orcvuntoutien pre det for the clection of the holder of an office an the .-/12.. ~ 12 - organization otherwise than directly vy the members of the orp wni7ation wo would De eniil.ed to vace if the rules were in accordance wiih paregre7h (4) of sub-scction (1), bul Ly a proceture in Wuich these menbers indirectly trke part, The orgenizatlica is allowed a period of three youre after thet cate within which to bring its rules, so Tor ans they IL relote to that office, anto conformicy with paragraph (a) of sub-section (1)." The above provisions were isnsertcé into the Act by s.52 of Act No. 158 of 1973 which cao anto operation on 13 November 1973. Further, s.3(c) of that Act addec an additional object (Lf) to s.2 of the Act. This object reads it~ s.2 The chief obgects of the act are :- \ Pe (f£) to encourage the denmociatie centro] of orgenizebions ... ard the full pirticinaticn of members ... in the affairs of the orgaricctsi on. The claimant argued that rules 12(e) and 14, the rules under which the challenged elections were held, clearly were contrary to s.133(1){a) at the date of the commencement of Act 138 of 1973 (namely 135 NovertLor 1972) and, if sub-s. (1A) of s.133 did nol epoly, thoce rules were invalid on 8 November 1976 unless protected Ly extensions granted under sub-s.(3) or, if sub-s.(4A) vas applicable, saved by the period of grace referred to therein. It is clear that even though the clecticns vere for the filling of positions on the "committee of me unygeucnu" of the organisation and the duties of those holding cuch positions were of a part-time nature only the rules under which such élections were conducted did not amne before 13 November 1973, the date when sub- js atel ( electoral ae } —> f rh eth to a of s.133 commenced, wake provision for the tye FS ) moe rn system reivrred to therein, namely a one-tier collegiate electoral cystem. Further, pursuant to 5.133(4) the Industrial Registrar had 1n 1974 and 7°75 allowed the orsent. ation - 13 - extensions of tare within which to bring 1ts rules into conformity with the requirements cf s.133(1)(a). The last extension expired on 31 Octuber 197). A question was raised wietber such extensicus vere valid extencious undcr the sub-section as it was not clear that they vere continuous from a point of time Le:ore 13 November 197 up until 31 October 1975. But for the puvpeses of the claimant's argurent in this regard this wos immalteria] as it was sufficient under such argument to show inaé at sore point of time prior to the disputed elections being commenced the extensions of time grented under sub-section had expired with the result thal the rules under wich the elections were in fact conducted had become invalid at that pointe or time and had remained so thereavter up until the ( \ot commencement of the elections unless protectod by sih-section (4A) of 5.133. The claimant su.mitted that such invalidity extended beyond the date of such commencemoenc but for the purvoses cf the present argument it is urnecessary to make a determzralion as to that perzod. Rules 1?(a) ane 14 clearly prov.de for the election of officers in the organizetion by a procedure other than by the direct vote of "those marboars" rcferred to in s.133(1)(a). In my view such rules do not previde for the election of such officers ty a procedure witch 1s proviced for in sub-section (4A). namely a proceaure in which oly "those members" referrec to in the sub-sect+on indirectly take part. Under those rules rh: persons entitled to vote at such elections are (2) the Ce'egates elected e1ther directly or indirectly by membcrs who probably would have been enLitled to vote at the cleclion of the officials if the clectoral syst-m edoptedi wes a direct voting system and (i1) the offiacere of the oreanizatiLon vho vote diroctly as officers and nol indareclly on belili of "those members" referred to in the sub-section, That lhe vece of an officer 1s such a direct vote 18 aydustratca by ) - 14 considering the vote of the Nationcl Secre vary-Troasurer at a perticular Council meeting. If he hed been clectcd for @ second term of office he may have atvended prior Nations1 Council meecings for up to twelve years rout a delegnte but «s an officer, Further af he hed been che holder of the office of Acsistant National Secretary- Treasurer immediately prior to his election to the offices of Secretary then this period of twelve years would bu ancreased by the period that he hud held the cerlicr office. It 1s well Inown thet in the organizetion there is +. heavy turnover cf members particularly since 1970 (ef. Leveriife +. Shop Dittvitvitive and Allicd Erntcyeos feeociotion (17 ALL-R. 145). 'The 1llustration given cleerly show. thet the rules in question permit a situation to occur which in my view is contrary to that which the Legislature by the emvicndment to s.133 1n 1973 intended. In my opinion it is not # lid construction of 8.132(4A) which permits the vote of = person in 21 olection uy of the hcider of an office who hac been elcctea a celecete to Council by the direct or indizrect votes of an appropriate section of the rembership of the organizetiorn at a time many years privur to the casting of the seid vote and who nad at that ecerlicr point of tire teen elcctee en officer by end from the Council to which he was clected erd who theircaficenr continucd to be an officer within the meaning of r.74 ec a result of his re-election by and from cech successive biennr71 a Council to be an indirect vote of "t2rose rcmbers" referred to in the sub-section. The p2rticulai members who Cirectly or indirectly voted for such person to f121i the position of dclegate to Council may not be and, becuarc of the a turnover of membership in this organization, probally vould not be "Lhose members" referred to in sub-s. (4A). w/15.. ~ 15 - Such a construction in my view, would bo contrary to the thrust of the 1973 amendments to s.123(1)(2) of the Act whach effectively meant that the filling of officcs within orgenizations was to be cairiecd out urder an electoral systen where each financial member wes entitled to ercreise his frenchise by his darect vote. In other woreés, clecblions conterpleted by s.1233(1)(a) were to be elections under wineh the officers of organizations were to be electeé by the direct votes of the rank ard file finiuncial menzber's. An exception to this basic principle was the election of a part-time officer (sub-s. (iA4)). If the rules of an orgenizaticn at the tine of the commencement of the amending Act provided for a one-tier collegiate electoral system for the election of such nert-time officer then such procedure complied with the Act and the orfanzzation was not required to atend its rules in this regard. Again vhere tne rules of an organization at the time of the commonacenert of the amencing Act provided for the election of its full-tinc officers by any collegiate electorel system or 1ts officers by a multi-tier collegiate electoral system, then such organization vas given a period of gerece of 3 yerrs in which to bring its rules into conforvity vith s.137(1)(<). Organizations which at the time of the comencerent of the amending Act did not heave rules .dich complicid with the nted a provisions of cither sub-s. (1A) or sub-s. (44) were er @ per1od of 12 ronths or such furth-r period ast my be prenatec to bring its rules into tonformity with s.135(1)(a). It is clear, an my view, that r.12(a) or 14 do not rake provision for the collegiete electoral sysiem that the legislacure contemplated in sub-s. (4A) and accordingly ithe said rules were not saved during the period of grace of 3 years referred to in the sub-section. 2/16. - 16 - In my opinion rules 12(a) and 14 on 8 Novembcr 1976 contravened s.133(1)(a) of the Act and that, either by foree of that section or by force of s.140(1) or both, the said rules were then invalid. The challenged elections being dependent upon such invalid rules were therefore of no effect, Accordinaly I find it unnecessary to make a determination whether such rules on and afler 32 November 1976 when s.133 was auended by s.4 of Act No. 117 of 1976 Ast ay were catant and were not then, and for a period of at le 2 years expiring not before 12 November 1978 could not be, contrary to that section (s.133(3)). As mentioned at the oulset of Lhese reasons For judgment the claimant did rot pres: his claim for orders pursuent to s.140 declaring thet the particuiar rules coutravened s.140(1)(a). It was submitted Ly the cleimant that in view of the decision in Shearer's case (supra.) a determination by the Court in an applicalion brougnt under s.141 that a rule contravened s.-40(1)(a) at some antecedent point of time had the result that the rule vas void jn the strict sense at that point of time and thereafter remaird void so that a declaration by the Court in the application brought urdcr s.140 was umnecessary. On the other hand, the claimant conceded, and rightly so in my view, that if this submicsion was not valid tien it would be pointless to proceed with the s.140 application as a determination under s.149 speaks as to the rules only aL the date of the declaration under the section emd as the present .433¢3) allows the organization a period of at least 2 years exptirin,, at the carlicst on J2 November 1978 to bring its rules into conformity with $.133(3)(a) tne particular rules cam rol be presentsy contrary Lu the section. Thee had the oppoituotes of reading the reasons. for judement hereto of Northrop J. wherein he rejects the claumaurt's subeisciou dn this regard. - 17 - In iny view it is unnecessary to decide this question and I prefer not to eapress any concluded view th-reon, Further, I do not find it necessary to express any view on other submissions mide by Mr Sha Q.C. who, with Mr D. Ryan, appcared for the vespondents conccurniny the construction of the present s.133 and whether rule 12(2) and 14 make provisions required ly that section. Reverting to the claim under s.141, the result is that the respondcnts Maher, Major, Bennett, Recd and Walsh were not clected to office as a result of the purpurted eleclLion comnencing in November 1976. But the regpondcnts Maher, Major and Bennett were clected to Lhe positions of National President, National Vicc-President ond National Executive Membcr respeclively in or about October 1974. Such clections were not and could not have been challenged under s.141. Rule 12(b) provides that :- "Bach member of the National Executive, olher thai the National Sucretary-Jreasurcr and the National Assistant fccretary shall hold office until such time as his successor 1s elected." As no successors have been elected to the positiors held by the respondents Maher, Major and Bennett I an of the opinion that each of those respondents holds the rsespectise - 18 - positions to which he was elected in 1974, The claimant argued that by nominating and standing as a cnndidate at the purported elections in Novembcr 1976 cach of the three respondents had impliedly resigned from his office or position by operation of law. This argurent is rejccled for the reasons set out in the reasons for judgment given br with which I have agreed. Since the preparation of these reasons for judgmer: the decision of the Iligh Court of '4ustralia in R. v. Durohy gs and Or3 ex parte Maynes hag been d. livered. (1° May 1978), ang VE3_ ex T y In my view the reasons for judgment given therein by Mason J, and agreed in by Barwick C.J. and Stephen and Aichin JJ. do not affect. the expressions of opin'on in my reasons for judgment. Accordingly orders should be made that the respond«nts and each of them ccased to hold vthemselves out as having been elected to the resprctive offices or positious pursuant to the purported election which comnceneed in November 1976. Such orders sheuld indicate that the respondents Maulier. Major and Bennett continue to hold the offices ond position of National President, Nationa] Vice-President and Nationil Executive Member respectively to which office or position each was respectively electcd in or about October 1974. 'The rule nisi granted herein in so far as it relates to orders under s.140 is discharged. IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY No. V27 of 1977 INDUSTRIAL DIVISION BETWEEN: BRIAN WILLIAM O'NEILL, SHIRLEY TURPIE and DONALD F. ROBERTSON Claimants AND: BARRY THOMAS EGAN, TAURENCE JOHN BRERETON, JOHN BURGESS, JAMES McDOYLE, JAMES GIBSON, JOAN WYETH, ALWYN H. WRIGHT, and SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION Respondents ORDER JUDGES MAKING ORDER: SMITHERS, EVATT and NORTHROP JJ. DATE OF ORDER: 22 November 1977. WHERE MADE: Melbourne. THE COURT ORDERS AND DECLARES: That sub-rule (b) of rule 15 of the Federal Rules of the Shop Distributive and Allied Employees! Association, in so far as the said sub-rule (b) purports to provide that the National Secretary-Treasurer of the said organisation shall hold office for a period of six years and shall only be required to submit himself for re-election prior to every third biennial meeting of national council of the said organisation, contravenes s.140 (1) of the Conciliation and Arbitration Act 1904. IN THE FEDERAL COURT OF AUSTRALIA VICTORTA DISTRICT REGISTRY INDUSTRIAL DIVISION V No.27 of 1977 ent Natt nett ae BETWEEN: BRIAN WILLIAM O'NPILL, SHIRLEY TURPTE ond DONALD F. ROBFRTSON Claimants AND: BARRY THOMAS EGAN, LAURENCE JOS et eer tn BRERETON, JOUN PURGESS, JAMES McPOYLE, JAMS GIBSON, JOAN WYETH, ALWYN H, WRIGHT ond SHOP DTsiriBUTIVE AD ALLIED EMPLOYEES ASSOTGATION Respondents ORDER JUDGES MAKING ORDER : SMITHERS, EVATT and NORIHROP JJ. DATE OF ORDER : 8 June 1978 WHERE MADE : MELBOURNE THE COURT ORDERS : That the rule nisi herein granted pursuant to Section 141 of the Conciliation and Arbitration Act 1904 be discharged. IN THE FEDERAL COUKT OF } AUSTRALIA V. No. 27 of 1977 INDUSTRIAL DIVISION VIZTORTA DISTRICT REGISTRY IN THE MATIFR of the Conciliation and Arbitration Act 1904 BETWEEN: BRIAN WILLIAM O'MESLL, SEIRLEY TURPIE and DONALD F. ROBRETLON Claimants AND: BARRY THOMAS EGAN, LAURINCF JOUN BURGESS, JAMES McPOYLE, JAMES GIPSON JOAN WYETH, FLWYN TL. WerGst and SHOP DISTRISUTIVE AND ALLIDD E."PLOYSES ASSOCIATION Respondents SMITHERS J. 8 June, 1978 REASONS FOR JUDGMENT - This is the return of a Rule Nisi made on 15 September 1977 by Northrop J. requiring the respcndents to snew cause inter alia why orders should not be made under 5.141 of the Conciliation and Arbitretion Act 1904 directing them to perform and obser-e the rules of the Shop Distributive and Allicd Employces Association: (1) by treating as null and void and of no legel effect a purported notice convening a meeting of the Brench Council of the New South Wales Branch of the organisation issued in the name of the clazmant Turpre for 10.30 a.m. on Friday 16 September 1977 an the Green Room second floor 421 Patt Strect, Sydney; (2) by treating as null and void and of no legal effect any purported meeting of the Branch Council of the New South Wales Branch of the said organisation held pursuant to a purported notice convening a meeting of the Branch Council of the New South Wales Branch of the said organisation issued in the name of the claimant Turpie for 10.30 a.m. on Friday 16 September 1977 in the Green Room, second floor 321 Pitt Streot, Sydney. The cleimant Tuipie (formerly Shiriey Coffey) took no part an these proceedings. The Rule Nisi was supported however, by the other claimants and resisted by the respondents, - The "purported notace" convening the meeting of the Branch Council was signed by Mrs. Shirley Turpie who was at that stage the President of the New South Wales Branch of the organisation and was in the following terms:- ' MEMO TO: Branch Councillors FROM: Shirley Coffey DATE: September 5, 1977 RE: Branch Council Meeting In accordance with Rule 12 of the Eranch Rules, as certified by the Industrial Registrar et Melbourne on August 11 1977 I have received a request in accordance with the Rules for < meeting of the Committee of Management of the Branch. I have there- fore called a meeting for 10.30 a.m. on Friduy, September 16, 1977 at the registered office, 2nd floor, 321 Pitt Street, Sydney in the Green Roon ang I anticipate the meeting lasting until approximately .30 p.m. Because of the nature of the business I request all members of the Committee of Management to make every endeavour to be in attendance. Shirley Coffey, Branch President. " The request referred to in this notice was signed by the respondent B. T. Egan and was in the following terms:- "MEMO TO: S. Coffey, D. Robertson and BR. O'Neill FROM: B, T. Fgan DATE: September 2, 1977 RE; Rule 12 N.S.W. Branch In accordance with Rule 12 you are requested to ensure that a meeting of the Committce of Managemen: of the New South Wales Branch 1s convened for 10.30 a.m. on Friday, September 16, 1977, in the Green Room at the registered office of the Branch, 2nd Ploor 321 Pitt Street. In accordance with the rule you are advised that those persons requisitioning this meeting ere the tollowings: Jack Eurgess, Barry Egan, Jack Thomas, Laurie Lrezeton and Al. Wright. Please make the necessary arrangement to advise all members of the Committee of Manarement of this @ecasion and further to my earlier mcmo in respect of breaches of Rule 2%, I draw your attention to breach s of Rule 29 as i propose to raise this matter before the Committee of Management at 1ts meeting. B. T. Egan, National Secretary " Tt appears that two of the signatorics nomely Thomas and Burgess were not Branch Councillors at the relevant time. It is a conseguence that the notice was not signed by 25% of Branch Councillors and that the request was ineffective to create any duty in the President of the Franch to call a mecting of the Branch Committce of Manugement pursuant which is set out hereunder. to Branch rule 12(¢)/ It would also anpear that Mrs. Turnie was under the impression that the request was a request of 25% of Branch Councillors and that she was under a duty to convene a meeting of the Committee of Management in accordance therewith. She did convene the mectang which took place at the place and time specified, In these circumstances the claimants contend that the meeting was not validly convened and was held in breach of the rules and ought to be treated as null snd void. On their behalf it was submitted that it was the effect of the rules properly interpreted: (a) that except pursuant to Rule 12(e) the President was not empowered to convene a meeting of the Committee of Management otherwise then jointly with the Secretary; (0) the suthority of the President to call a meeting pursuant to Rule 12(e) was conditional on receipt of a veguest therefor from not levs than 25% of Branch Councillous; (c) (a) that a notice given to Committee members com ening a meeting of the Committee of Management by the President acting under the mistaken belief that a request for such a meeting received by her was a request from 25% of Branch Councillors and imposed a @guty upon her to convene the meeting and who called the meeting only because of such belief was given by the President without authority under the rules and was ineffective to con.ene the meeting; that the meeting of the Committee of Management held pursuant to a notice given by the President in the circumstances mentioned in the procecding paragraph was not a valid meeting and was not authorised to conduct business of the Branch. In support of these submissions the claimants referred in particular to Rules 6 (a)(i) and 6 (a)(111) and Rule 12 (e). Rule 6 is headed "Duties of Officers and Councillors" and so far as is relevent for present purposes provides:- "Rule 6. DUTIES OF OFFICERS AND COUNCILLCRS The duties of Officers and Councillors are as follows:- (a) (1) Branch President - The President shell preside at all meetings of tne Branch Council and all other meetings of the Branch whenever possible. The President snall sign ¢1l documents requiring his signature and, 12m conjunction wich whe Franch Secretary, shall be empovered to convene meetings of the Branch Council and ali other moctings of the Branch, I1n the case ol an emergency or the absence of the branch Secretary, the Presiden may exercise the povers of the Prench Secretary subject to the concurrence of the krancn Coineil. In case the votes at eny tive at a Lranch Council meeting be equal he shall exercise a casting vote only. (ii) ..... (iii) Branch Secretary - The Hranch Secretary snall be the chief exccutive officer of the Branch and he shall....convene meetings ....." Rule 12 provides as follows:- "Rule 12. CONTROL BY COMMITIER OF MANAGEMENT (a) Subject to the National Rules and the decisions of National Council, the Branch Council sheali kave the general control end conducl of the business of the Branch and shall act on its behalf in 411 matters. (db) ..eee (c) seas (d) see. (e) The manner of summoning meetings shall be by notice to each member from the Branch Secretary or Franch President given personally or by writing. telegram or telephone. If the Branch Secretary or Branch President receives the request from not less than 25% of Branch Councillors the Branch Secretary or Branch President shall within 14 days convene a meeting of the Branch Courc1i1." I am unable to accept these submissions. In respoct of that set out in (a) above reliance was placed in particular on the expression in Rule 6(a)(i)"in congunction with the Branch Secretary". It was said that by virtue of Rule 6 (a) (111) it was clear that the Branch Secrctary is the chief executive officer of the Branch and has a clear duty intcr alia, to convene meetings. It was said that the President's powers as set forth in Rule 6 (a) (1) are generally so limited that a limitation of his powers to convene meelings is not surprising. It was said that the expression "au congunction Branch with the/Secretary" 1s quite unegu2vocal and must be taken to have been deliberately inserted to achieve a result and if construed according to ordinary grammatical principles it defines the President's power to convene meetings of tne Committee of Management as a pover to do so only gointly with the Branch Secretary. But it is to be observed that in circumstances where under the rules, the Branch Secretary acting alon:, has authority to call meetings of the Committee of Management it 1s a mere waste of words and achicves nothing to confe.- on the Branch President a power to convene Brench Meevings only where the Branch Secretary will act gointly with him. There is no point in empowering the President to convene meetings if he must obtain the concurrence of the Secretary. But there would be a point in a provisizon that the power to convene meetings was conferred on the President as well as on the Secretary. In th:s matter of the construction of Rule 6(a) (1) assistance is gained by consideration of the provisions of Rule 12(e). It is clear thet Rule 12(e) proceeds on the basis Lhat a notice summoning a meeting of/Branch Committee of Managomcnt is effective if given to the members by the Sceretery alone or by the President alonc, personally, or by writing o1 by telegram or by telephone. If the President were not a peison authorised to convene a meeting otherwise than jointly with the Branch Secretary at would be surprising that the rules should provide that the notice of summoning the meeting might be efiectuated by a personal communication from the President to members. The rule does not require the President to state to members that the meeting the calling of which he is communicating has been "convened" by the Secretary or jointly by him and the Cecretery, If the President himself were not authorised to convene a meeting then withcut such an intimation members would not know whether the meeting was convened in accordance with the rules or not, It is not to be doubted that a meeting summoned by the Presidcnt pursuant to Rule 12(e) by notice not containing any intimation that he and the Secretary or the Secretary alone has convened the meeting is duly summoned and when held is a valid meeting of the Committee of Management. It would cause chaos if a meeting summoned by the President personally in terms authorised by Rule 17(e) were invalid unless 1t had been "convened" by the Secretary or the President jointly with the Secretary. It 1s conce.svable that Rule 12(e) refers to meetings that have already been "convened" by the Secretary alone or by the President and Secretary acting jointly. The conception rests upen the idea thet for the purposes cf the rules there 1s a difference between convening a meeting and surmoning a meeting. But it is difficult to think that any such conception really lurks in the rules. It wosuld involve that there 1s to be some preliminary overt act of convening a meeting either by the Secretary alone or by the Secretary end President jointly and that ther and then only shall the next meeting be summoned. The cssential feature of "convening" a meeting is the communication of a message summoning the members to it. Consistently with this,Fule 12(e) lays down the manner in which the relevant communicatioa is to be made namcly personally or in writing or by telegram or by telephone by either the President or the Secretary. It is my view that the inference arising from the rules is that he who is authorised to summon the members to a meeting is authoriscd to convene a meeting. Reference to the psregreph in Rule 12 stalings:- "Tf the Branch Secretary or Branch President receives e request from not less than 25% of Branch Councillors the Pranch Secretary or Branch President shall within 14 days convene a meeting of the Branch Council." supports this view, It is to be observed that this paragraph was added by way of amendment to rule 12 as previously enncted. The terms of the paragrapn do not speak in terms of conferring upon the President a power he does not already have. It refers to a "request" to the Secretary or to the President to convene @ meeting. The conception of a request being made to a person to do something implics that the person so recuested is & person having the power to do the thingin oveeticn. So fer es the Secretary 1s concerned clearly the parapriph does uot conier a power bul only creates 8 duty 4 GNEPrCLSF & Q power already existing. The use of the same words with respect to the President naturally reflect the sane idea, If tue power to convene a meeting already existed in the President the amendment performs in a natural and lossical way the same function with respect to the President as with respect to the Secretary. And it 1s significant that the power to be exercised pursuant to the amendment whether by the President or the Secretary is to "convene" the meeting. vy Oo In these circumstances there is ample warrant for construing Rule 6 (a) (i) as though it were expressed "in conjunction witn the grant of power to the Secretary to convene meetings of Branch Council set out 1n Rule 6 (a) (111) the President is granted power to convene such meetings". This may seem a substantial alteration of the language but it does no more than to construe the words "in conjunction with the Branch Secretary" as referring to the act of the rule making body in conferring power rather than qualifying 3 power other- wise granted. It is the act of conferring power on the President which 1s performed by the rule making body which 1s done "in conjunction with" a similar act done by it with respect to the Branch Secretary. On this basis the words "in congunction with" may be construed in the sense of "an addition to" or "as well as" without doing any violence to the words used. Having regard to the absence of purpose which would attend the grant of power to the President couteained in pule 5(a)(1) 1f otherwise construed and the foregoing observations as to the signiti- cence of each part of Kule 12 I consider that the real antecntion of Rule 6(a)(1) is achieved by construing the criticalwordsm che sense of "an addition to" or "as well as". The result is that accordiig to the rules the President has a full and independent power to convene meetings of the Committee of Management as and when he chooses. Submissions (b),(c) and (ayfabove may conveniently be considered together. Certainly no duty arises in the President if a request made under Rule 12 is made by less than 25% of Councillors. But a meeting convened by the President jin the circumstances contemplated in these contentions 1s still a meeling convened by the President. That she acted under the impression that she was under a duty to exercise hei power to convene the meeting and would not otherwise have so acted does not make her action any the less an exercise of a power that was hers. One cannot read into Rule 6 or 12 any suggestion that a meeting convened by the Secretary or the President 1s invalid if he or she acted on a mistaken belief that a duty had arisen under Rule 12. So far as Committee members are concerned once they have been summoned by the President, or the Secretary, as the case may te, in terms indicating that the President or the Secretary is acting on the basis toathe or she has received an effective requcst in accordance with Rule 12 they know that a person authorised to convene a meeting has done so. And in this case the President being authorised to convene a meeting did so. That she wes under a misapprehension is irrelevant. Inquiries by Councillors as to the contents of or the requisite signaturesto the request would not be practical. In construing rules in a matter of this kind it is proper to ha'e in mind that meetings of the governing bodies of represent- ative organisations are essential to the achrevemenc of the objects of such bodies. Accordingly a resolution of questions un a manner facilitating the holding of meetings rather than frustrat~ ing it 1s to be preferred. A meeting of the Committee of Managc- ment to conduct the business of the Branch is prima facie a beneficial act in the course of the Branch government and there is every reason to refrain from taking a narrow or destructive view of the provisions for calling such meetings. But the claimants contend that apart from the matters referred to abo-'e there is another ground on which the con' ening of the meeting of 16ti: September 1977 and consequently the meeting itself was in breach of the rules and invalid. It is said that the whole procedure concerned with convening and holding the meeting was so tainted by mala fides that wnat was done in purported operation of the rules was done not for the purpose of the achievement of the objects of the Association but for ultcrior purposes designed to promote the interests of certain members and improperly to affect the interests of the claimant O'Neill prejudicially. It is clear that in the Association members are divided in their opinions as to the merits of certain alternative policics. The claimant O'Neill favours a policy which is opposed to the amalgamation of the New South Wales Branch within the organisation known as the Australian Workers Union and the orgenisation known as the Builders Workers Industrial Unior, The respoudenk heen and certain other members favour the taking of steps to achicve such an emalgamation, It is said by the claimants that the respondent Egan with the intention of achieving the censure of the claimant O'Neill at a meeting of the Committee of Management at which the claimant O'Neill could not be present: (a) requested the President to call the meeting at 10,30 a.m. on 16th September 1977 because he knew that the claimant O'Neill could not attend at that date and time as he would be attending as a delegate of the Association to the Australian Council of Trade Unions Congress; (b) that the respondent Egan failed to inform the claimant O'Neill that it was his intention to make charges against him at the meeting and seek to have those charges dealt with thereat; (c) that the respondent Egan did make charges against the claimant O'Neill at the meeting and had them dealt with by resolution censuring the claimant O'Neill. It is to be observed that no suggestion of absence of bona fides is made against the President. Accordingly the immediate act of convening the meeting was taken bona fide in the course of the administration by zn officer of the Association. There is no reason to think that the President had any animus against the claimant O'Neill in this matter. In fact the inference to be drawn is to the contrary. The claimants' contentions are directed therefore to the indicated procedures adopted by the respondent Egan. In this case I do not consider that it has been shown that there was a lack of bona fides in the making of the request pursuant to Rule 12. It is true that the respondent Egan knew that the claimant O'Ne1ll was a delegate of the Association to the A.C.T.U. Congress and that the Congress would be meeting at the close of its week's deliberations on the morning of 16 September 1977. I do not consider that the respondent Egan requested the meeting for that day on this account. Mr. Egan swore that it was not in his mind when the time was chosen. Mr. Egan knew that attendance at the A.C.T.U. Congress was sufficicntly flexible to permit Mr. O'Neill to obtain leave and attend the Branch Committee of Management meeting if he so desired, To a person with Mr. Egan's experience in union administration the idea that Mr. O'Neill could be excluded from the meeting of 16 September had he wished to be present would have seemed to be most unlikely. It is to be observed that Mr. O'Neill was well aware of the proposed mecting end endeavoured to cancel it and had made up his mind not to attend it in any event irrespective of his attendance at the A.C.T.U. Congress, It is clear that Mr. O'Neill knew that certain charges were to be made against him at the meeting and equally clear that he did not intend to defend himself at the meeting. It appears that the meeting dealt with various charges against Mr. O'Neill some of which had not been brought to his notice, Questions of natural gustice could arise in this respect. However, that is a matter going to the validity of what was done at the meeting and does not affect the validity of the meeting itself. (0 On behalf of the claimants it was put that the conduct of the respondent Egan and those associated with him designed, as it was, to promote the policies of amalgamation was inherently and fundamentally contrary to the objects of the Association and was thereby critically lacking 1n bona fides, But on behalf of the respondent Egan it wasput that in his view and the view of those associated with him those policies are in the best interests of the Association and within its objectives. It is his contention that the policies espoused by the claimant O'Neill and those associated with him are contrary to the best interests of the Association and have been promoted by conduct contrary to the rules. In this general situation I have found it impossible to make findings as to the bona fides of the parties. It is my view that the conduct of the partics so far as it arises from the clash of opinion as to the conflicting policies does not go to the bona fides of the request made by the respondent Egan and others pursuant to Rule 12. In the resuit I am not satisfied that there was any invalidity in the convening of the meeting of the Committee of Management for the 16th September 1977 at 10.30 by the President or in the meetings being held pursuant to the President so convening 1t. Accordingly. the Rule Nis1i so far as it seeks orders under s.141 of the Act should be dis- charged, - The second part of the Rule Nisi herein sought an order that Rule 15(b) of the rules of the Association contravenes s.140(1) of the Act. On this aspect I aygrec with the reasons for gudgment of Nortkrop J of which I have had the advantage of reading. I certify thet this and the /9 preceding pages are a true copy of the Reagons for Judgment herein of his Honor 4dr, Justice San, Hew 7 Fhenvank Associate Dated: 2 6°72 IN THE AUSTRALIAN INDUSTRIAL COURT B. No, 112 of 1974 MAHER - VY ~— CGAN B. No, 161 of 1974 EGAN & ANOK - V_- BARRADINE & OTHERS B. No. 295 of i975 V- DAVIS & LCA ~ MAJOR & OTIIDRS B. No. 301 of 1975 EGAN - V - SHOv DISTRIBUTTY™ AID ALLIED LMP LOYEDS" ASSCCLATION B. No. 305 of 1975 DAVIS & EGAN - V - SHOP DISTF AND ALLIED EMPLOY 10S" ASSOCi fRBUTIVS 'TON _& OTHERS IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION N. No. 8 of | PRITCHARD = COLDEWORTHY & OTETERS N. No.4 of 1977 EGAN - V - MAJOR _& OTHERS N. No. 19 of 197 EGAN — V_- Siuor DISTPTB & ALLSTD ENPLOYLES * s UTIVE AND N. No. 23 of 1977 EGAN - V_- MAULR ¢ OYRDRS V. No. 22 of i977 SHOP DISTRIBUTIVE AND ALLIED EMPL LOYRES' ASSOCTBLTLON & OTPERS -Vc BEAT & AN SUHER V. No. 27 of 197 O'NEILL & OMERS - V - HORT & OV'HERS NORTHROP J. REASONS FOP JUDGMENT 8TH JURT 1676 Cn the 14th November, 1977, twelve separate procecdings were lusted for hearing 1n esther the Australian Industrial Court or the FederaJ] Court of Australia. Each of the proccedinys related to matters arising within the Shop Dastraibutive and Allied Employees! Association (the S.D.A.), an organisation of employees under the Conciltation and Arbitration Act 1904 (the Act), including matters within the branches of the S.D.A. Six of the 12 proceedings had been commenced in the Australian Industrial Court and inmediately before the date of commencement of the Federal Court of AustraJia (Consequential Provisions) Act 1976, the lst February, 1977, were pending in the Australian Industria] Court. In some of those sia proceedings the hearing had not commenced and pursuant to s.4 of that Act those proceedings were transferred to the Federal Court of Australia while the remainder of those s1x proceedings are to he heard and Cetermined in the Australian Industrial Court. The remaining six of the twelve proceedings had been commenced in tho Federal Court of Australia. The twelve proceedings came on for hearing before Courts consisting of the same three Judges cash of whom 18 a Judge cf the Australian Industrial Court and a Judge of the Federal Court of Australia. The parties agreed that all proceedings should be heard together and the proceeaings continued to be heard for 19 sitting days. On the 9th December, 1977 interim orders having been made, three of the proceedings were adjourned to the 23th March, 1978 and the other nine proceedings were adjourncd sine die. The proceedings raise extremely complicated issucs of fact and difficult questions of law. Aspects of some of the proceedings have been the subject of orders made in the Australicn Tndustrial Court, Egan v. Harradine (1975) 25 F.L.R. 336, and subject to challenge in the High Court of Australia, R. v. Joske ang Others, Ex parte Shcp Distributive and Allied Mmployees' ation and Others (1976) 10 A.L.R. 385. During the hearing he n Ip Qo Qa fe of the proceedings before us, particular issues were raised end argued. On some of these a raling was givon while in others the Court reserved its decision, It 1s proposed that these reasons shal] be Jamited to thcse 1ssues the hearing of which has heen coupleted. Matter V. No. 27 of 1977 - O'Neill and Others v. Dgan and Others This 18 a proceeding commenced in the Federal Court of Australia and is the return of a rule nisi granted on the 15th September, 1977 in which the claimants seek, first, orders pursuant to s.141 of the Act directing the respondents to perform and observe the rules of the S.D.A. and, secondly, that an order be made declaring that Rule 15{b) of the Rules of the S.D.A. contravene s.140(1) of the Act insofar as 1t purports to provide that the National Secretary-Treasurer of the S.D.A. shall hold office for a term of six years or shall not be required to submit himself for re~election prior to every third biennial meeting of National Council of the S.D.A. The matter raised under s.140 of the Act 1s the only issue the hearing of which has been completed. Mr. O'Neill is a member of the S.D.A. and Mr. Dgan is the National Secretary-Treasurer of the S.D.A. The S.D.A. was given an opportunity to be heard, s.140(4) of the Act. On 22nd November, 1977 the Federal Court of Australia made the following order: "The Court orders and declares that sub-rule (b) of rule 15 of the Federal Rules of the Shop Distributive and Allied Employees' Association, an so far as the said sub-rule (b) purperts to provide that the National Secretary-Treasucer of the said organisation shall hold office for a period of six years and shal] only be required to submit himself for re-election prior to cvery third biennial meeting of national council of the said orgaiisation, contravenes s.140(1) of the Conciliation and Arbitration Act 1904." The Federal Rules of the S.D.A. provide that its affaiis shall be managed by the National Council which shall meet biennially and at such other times as Natjonal Council may deem necessary, Rule 7. The members of National Councal comprise dcleyates of affiliated branches of the $.D-.A. and in addition four national officers being the National President, the National Vice-Fresidentk, the National Secretary-Treasurer and the National Assistant Secretary, Rule 8. Rule 15 provides for the election of the four national] oftaicers and the effect of Rule 15(h) as that the National Secretary~Treasurer 1s elected at every third biennial meoting ct the National Coune1l and holds office for a term of six years. af laae Mr. Egan was elected to the office in October 1972, his period of office being until the biennial meeting of National Council in October 1978. Section 133 of the Act was emended by s.12 of the Conciliation and Arbitration Amendment Act 1976 (No. 64 of 1976) by the insertion of a new paragraph in sub-section (1). The amendment came into operation on the 8th July, 1976, sec s.2 of that Act and the Australian Government Gazette No. $121 of 1976. As a result of this amendment as from the 8th July, 1976 the relevant provisions of s.133 of the Act have been and at present are: "133.{1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with ...... by organisations include a condition that the rules of ...... Organisations (db) shall not permit a person to be elected to hold an office within the ........ organisation for a period exceeding 4 years without being re-elected." It 1s noted that s.12 of the 1976 Act inserted a new sub-section {4C) 1n s.133 of the Act allowing an organisation such as the S.D.A. a period of 12 months after the 8th July, 1876 within which to bring 1ts rules into conformity with the requirements of s.133(1) (db) of the Act. Section 1]40(1)*a) of the Act is as follows: "140.(1) The rules of an organisation - {a) shall not be contrary to, or fai] to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law." It is obvious that that part of Rule 15(b) of the Federal Rules of the S.D.A. which permits the National Scerctary- Treasurer to be elected to hold office within the 5.D.A. for a period exceeding 4 years without being re-clecte? 1s contrary to the provisions of s.133(1) (db) of the Act. Accordingly the Court, in the exorcise of the powers couferred by s.140(2) and (3) of the Acc, made the order and declaration set out above. Section 140(5) vf afte a" the Act operates on that order and declaration and as a resuit that part of Rule 15(b) of the Federal Rules of the S.D.A. 1s deemed to be void from the date of that order, nameJy the 22nd November, 1977, generally see R. v. the Judges of the Commonwealth Industrial Court; E: parte the Amaigamated Engineering Union (1960) 103 C.L.R. 368 (Shearer's Case). Matter B. No. 295 of 1975 - Egan v. Maher and Others This is a procecding commenced in the Australian Industrial Court. Although prior to the lst February, 1977 the Australian Industrial Court, pursuant to s.141(2) of the Act, had made interim orders in this proceeding, the hearing of the proceeding had not commenced immediately before that date and therefore was transferred to the Federal Court of Australia, the Federal Court of Australia (Consequential Provisions) Act 1976, s.4(2),The same order and reasons for judgment would have been given if the proceedings had been continued in the Australian Industrial Court. Thais is the return of a rule nisi granted on the 3xd October, 1975 in which the claimant, Mr. Fgan, seeks orders pursuant to s.141 of the Act directing the respondents to perform and observe the Rules of the S.D.A. The rule nisi raises a number of matters but the only issue heard and determined related tn the office of National Assistant Secretary. The relevant orders sought are set out in paragraphs 5{a) and 6 of the rule nisi and are to the effect that specifie' officers of the S.D.A. "cease to recognise the respondent, Edward Goldsworthy, as the National Assistant Secretary" of the S.D.A. and that "the respondent Edward Goldsworthy cease to hold himseif out as the National Assistant Secretary" of the S.D.A. The facts relevant to decide this issue are of small compass. Rule 8 of the Federal Rules of the $.D.A. specifies that the four national officers together with delegates of affiliated branches constitute the Natcronal Council. Rule 14, us an force in October 1974, was as follows: ' ~ ur "14. OFFICERS For the purpcses of this rule the term Officer shall mean only these persons holding the following positions:- National Pressdent, National Vice-President, National Secrotary-Treasurer and National Assistant Secretary. Such Officers shall be elected by and from the National Council and, 1f a delegate, upon election shall cease to be a delegate from any Branch whilst holding their respective positions. At the expiration of their term of office they shall be elagible for re~electicn. The term shall not include any person holding office of Branch only. No person shall hold at any one time more than cne of the offices mentioned in this Rule." If a delegate 1s elected to a national office, Rule 8 (d) provides that the branch which the outgoing delegate represented shall elect another delegate to f1il that vacancy. The National Council meets biennially and at such other times as National Councal deems necessary, Rule 7, and pursuant to Rule 15(b) the elections to the office of National Secretary-Treasurer and to the office of National Assistant Secretary are held at each third biennial meeting of Wataonal Council, while the elections to the other two national offaces are held at each biennial meeting of National Council, Rule 15(a). The Federal Rules of the S.D.A. contain no express provision enabling a national officer to resign from his office. Rule 12 provades for the constitution of the National Uxuccutive which consists of the 4 national officers and at least 3 other mombers elected by and fyom the National Council at each biennial mecting of National Council. Rule 12(c) provides as follows :- "In the event of any vacancy occurring on the National Uxecutive, National Council shall appoint another member from amongst the members of Katicoual Council to f111 the vacancy. Any member so appointed shall hold office for the renaining portion of the retiring member's term of office." The effect of these rules can be stated shertly. Unless a person is a member of National Council, either as a netional fficer or as a delegate, he 1s not eliysible to neminake for a national office and cannot be appointed to f1ll a casual vacancy on the National Executive. At the biennial meeting of the National Councal held an October 1972, Mr. Egan was elected to the office of National Secretary-Treasurer and Mr. Coldsworthy was electsd ta the office of National Assistant Secretary. Each was to hold office until the biennial meeting of National Council to he held in Octoher 1978 and each was ex officio a member of National Executive. At its biennzral meeting in October 1974, the National Counc1i purported to remove Mr. Egan from his office of National Secretary-Treasurer. Subsequently at the same meotiny National Council passed the following two motions i- "That there being a casual vacancy in the office of National Secretary-Treasurer Mr. Goldsworthy be and he is hereby appointed to £111 the casual vacancy." "That in consequence of the appointment of Mr. Goldsworthy to fill the casual vacancy in the office of National Secretary-Treasurer, the registered office of the Association be established at 103 Wraght Street, Adelaide until otherwise determined by National Council." Following the passing of these resolutions, Mr. Goldsworthy, although not expressly resigning his office of National Acsistant Secretary, purported to hold the office of National Secretary- Treasurer. He performed the duties and oxercis:d the powers imposed and conferred by the Federal Rules on the holder of that office. He held hinself out as and acted as if he was the National Secretary-Treasurer of the S.D.A. At no time did he purport to exercise these powers putsuant to the power conferred on the Naticnal Assistant Secretary by Rule 19(a) namcly - "19. DUTIDS AND RIGHTS OF NATIONAL ASSTSTANT SECRETARY The duties of the Natiunal Assistant Secretary Shall be to :- ib) in the absence of the National Secretary- Treasurer, he shall assume the full dutses of the National Secretary-Treasurer." Imnediately prior to the passing of these resolutions, Mr. Goldsworthy received leqaul advice that Mr. Egan might be able to challence successfully the validity of the resoluticn purporting to remove him from office and in that event the eppuintment of Mr. Geldawerthy: flee to the office would be invalid and therefore Mr. Goldsworthy should not resign his existing office. Mr. Goldsworthy formed the intention not to resign from his office of National Assistant Secretary but after the passing of the resolution he held himself out as holding the office of National Secretary-Treasurer. On 25th August, 1975 in Matter B. No. 161 of 1974, the Australian Industrial Court ordered that Mr. Goldsworthy cease to hold himselt out as the National Secretary-Treasurer of the §.D.A. and that the other respondents to that matter recognise Mr. Egan as the National Secretary-Treasurer of the $.D.A., see Egan v. Harradine (1975) 25 F.L.R. 336 and in particular at pages 390-391. It 18 my opinion that by purporting to enter into the office of National Secretary-Treasurer pursuant to the resolutions set out above, Mr. Goldsworthy, in law, impliedly resigned his office of National Assistant Secretary. Rule 14 prevented him from holding the two offices at the same time. By purporting to enter into the new office of necessity Mr. Goldsworthy must have resigned his other office. The fact that in law there was no vacancy in the office of National Secretary-Treasurer does not in my opintun render the implied resignation invalid. The resignation was effected Ly operation of law arising from the conduct of Mr. Goldsworthy. During the hearing before us the opinion of the Privy Council in Garden Gully United Quartz Mining Co. v. McLister (1875) 1 App.Cas.39 was debated at length. Mr. Handley, @.C. who with Mr. Kengie appeared for Mr. Egan, argued that the decision was authority for the general proposition that where there is an election for an office, that election, even if invalid, necessarily involves the retirement of a person who previously held the office, c/f Wood v. Morris (1975) 25 F.L.R. 391 at p.395. In my opinion, the Privy Council decision, depending as it does on the particular facts of the case and the particular rules involved, cannot be said, on a proper analysis, to be autherity for the general propasiticn stated. I do not find the decision of assistance jin this case. In my opinion, the appropriate principle of law is stated clearly by the Court of Exchequer Chamber ?n The Tron Ship Coating co. v. Blunt (1868) 3 L.R. Comm. Pleas, 484 In thar case che c articles of association of a joint-stcck company provided that any director who should accept or hold any other office under the combeat, ~/B-ae other than that of manager, should thercupon cease to be a @irecter. A person had been appoznted secretary of the compavy at a salary and whiie holdiny that office was elected a director. Thereafter he received salary as @ director but he ceased to receive his salary as secretary even though he continued to carry ort the duties of secretary. The Court held that afte: his election as director he did not hold the office of secretary. Wallis J. at p.488 said: "The true construction of clause 69 3s this: wut was intended to provide that any director accepting an office under the company, other than that of manager, should cease to be a director. That would be so if the offices of secretary and director vere offices proper, as in the instances put in Com. Dag. Officer (8.6), where 2t 15 laid down that "the grant of an office to one who has another office incompatible, 1s not good; for, the first office will thereby be void. As, if a forester, by patent for life be made justice in eyre of the same forest pro hac vice, the office of forester will be void: for, it is auncompatible, beiny subtect to correction hv the justices in oyre."" Several other illustrations are there put: amongst them, that "the chief justice of C.B. cannot be prothonotary or clerk of the papers an the same Court". This 1s founded upon a principle which runs through the whole of the law, and is applicable to surrenders by iunplicaticn. So here, the resolution making Grabhar a salaried d:rector must be taken to involve a resignation of the office of secretary. The fact of his haviny continued to perform the dutics of serretary after he had ceased to be the paid servant of the company (which 1¢ tne only sense in which the word "office" 1s used an the clause of the deed relied on), really males no difference." This pranciple of law should Le applied to the facts of this case and in particular, the resolution of the National Council appo_nting Mr. Goldsworthy to the office of National Secretary- Treasurer must be taken to involve a resignation by Mr. Goldsworthy, of his office of National Assistant Secretery. The principle of lew stated 18 consistent wiih what was said ly Kitto J. ian Tropical Traders fimited v. Goonan (1964) 111 C.L.R. 41 where, in discussing the doctrine of olec rion, at 7.8% wie Henour said that election was not a matter of intentiea but 1s an effect which the law annexes to conduct which would bo justilaable only if an clectioi had pown rade one way os the othe: . The principle of Jaw is consisrent also wath the apinione enpees. -1 ~f/9 4, in Sargent v. A.S,L. Developments Ltd, (1974) 131 C.L.R, 634 per Stephen J. at pp.641 et.seq. and per Mason J. at pp.655 et.seq. For these reasons T would make the order announced Li the Court on 8th December, 1977 namely - That until a new election shall have beer held for the office of National Assistant Secretary the respondent, Rdward John Goldsworthy, cease to hold himself out as National Assistant Secretary of the S.D.A. and that the remaining respondents cease to recognise him as National Assistant Secretary of the S.D.A. Matter N. No. 23 of 1977- Egan v. Maher & Others This 18 a proceeding commenced in the Federal Court of Australia and is the return of a rule nisi granted on the lith November, 1977 in which the claimant secks, firstly, that orders be made declaring Rule 12(a) and Rule 14 of the National Rules of the S.D.A. contravene s.140(1) of the Act and, secondly, orders pursuant to s.141 of the Act that the respondents other than the §.D.A. perform and observe the Rules of the S.D.A. At the hearing of this proceeding Mr. Handley did not ask that the rule nisi under s.140(2) and (3) of the Act be made absclute, the reason for this will be discussed later. The Court completed the heariug ef the Iatters raised under s.141 of the Act. The particular matters before the Court under s.141 vf the Act are those set ou® in paracraphs 5, 6 and 7 of the rule nisi and arise from the election of two national offacercs and three other national executive members conducted at the biennial meeting of the National Council which commenced in November 1976, was adjourned and was not concluded until July 1977. At that election Mr. Maher and Mr. Major were elected to the office of Naticnal President and the offace of National Vice-President respectively and Mr. Bennett, Mr. Reed and Mr. Walsh were elected members of the National Lxesutive. The orders sought are that cach of these respondents perforn and observe the rules of the S.D.A. by each ceasing to bold himself out as the holder of the office to which he was so elected. Ir. other words, the validity of the election 1s being challenged. 2/10... - 10 - It 1s impertant to note that these matters arise under s.141 of the Act end the Court 18 exercising the jurisdictien conferred by that secticn. The relevant part of s.141 of the Act is as follows: "141.(1L) The Court may, upon complaint by any member of an organisation and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions fcr the performance or observance of any of the rules of an organisation by any person who 1S under an obligation to perform or observe those rules." Mr. Egan 1s a member of the §S.D.A, and claims that the elections wete invalid because they were conducted pursuant to particula1 rules of the Federal Rules of the S.D.A. which contravened oither one or other or both of s.133 and s.140(1) of the Act. It is important to remember that in deciding these matters, the Court 1s not exercising jurisdiction under s.140(2) and (3) of the Act and accordingly has no jurisdiction to make an order declaring that the whole or a part of a rule of the S.D.A. contravenes 8.140(1) of the Act. It follows, therefore, that the Court his no yurisdiction to make an order or declaration upon which s.140(5) is able te operate. The Federal Rules of the S.D.A. provide for the election of members of the National Executive. Rule 8 provides that the National Council shall consist of 4 national officers and delegates of affiliated branches and that the branches shall elect Lhetrc own delegates and that the bizanch rules shall make provision for such election. The National Council shall meet biennially, Rule 7. Rule 10 makes provisions for National Council meetings and prescribes an order of business for those meetings. Jjtem 1 is the Close of Nominations for Positions on the National Lxecutive and/or National Officers. Item 14 1s the Declaration of any Ballot or Statement by the Returning Cfficer. Rule 11 provides for the National Executive while Rule 12 provides for the constitution of the Nat1lonal Executive. Rule 12(a) and (b) 1s as follows: "12, CONSTITUYTION OV NATIONAL EXECUTIVE (a) The Navional Laecutive shall constst cf the Nattonal Presidont, National Vice-President, 4 National Secreltary-Treasurcr, National Assistant Svcretary and at least three (3) wl. - lL - other members elected by and from the National Council at its ordinary biennial meeting. If any branch is not otherwise represented on the National Ixecutive, the Rranch Council of that branch may clect one of its delegates to Fedcral Council] to be a member of the National Executive. (b) Bach momber of the National DLaecutive, other than the National Secretary-Treasurer and the National Assistant Secretary shal] hold office until such time as his successor 1s elected." Rule 14 was purported to have been amended in October 1975. The validity of the amendment is a matter 1n issue in other procuedings. The purported amendment does not affect the issues raised in the matters under consideration. Rule 14, prior to the purported amendment, is as follows: "14. OFFICERS For the purposes of this rule the term Officer shall mean only those persons holding the following positions:- National President, Nat tonal Vice-President, National Secrelary-Treasurer and National Assistant Secretary. Such Otficers shall be elected by and from the National Couneil and, if a delegate, upon election shall cease to bo a delegate from any Branch whilst holding Lhe1r respective positions. At the expirztion of their term of office they shall be eligible for re-election. The term shall not include any person holding office of Branch only. No person shall hold at any one time more than one of the offices mentioned in this Rule." Rule 15 makes provision for the election of the officers and executive members. For present purposes, it 18 sufiicient if I set out Rule 15 (a): "15. ELECTION OF OFFiCLPS AND EXECUTIVE M&MBVRS {a} Nominations for the positions of National President, National Vice-President and three (3) Naticnal Erecutive Merpers shull be called for by notification Lo all arrbers of National Council by the Pacurning Otficer at least fourteen (14) deys prier to @ech brennsal meeting of the National Coune1l. fl... ~ 12 - Nominations shal] close at the opening of the biennial mectang of the National Council. Should more than the required number of nominations be received for any position a secret ballot of all wembers of National Council shall be conducted by the Returning Officer wathort delay. The ballot shall close upon the return of all ballot papers but in no case shall it close later than fourteen (14) days after the ballot papers have been distributed." Rule 15A prescribes the method of conducting the clection. 'The Returning Officer calls for nominations by giving notice to each member of the National Council, Rule 15A(1). Rule 15A(8) is as follows: "Successful candidates shall assume office on the declaration of the poll and subject to the rules shall hold office till their successors are elected, and shall be eligible for re-election." The other provisions of Rule 15A are not relevant for present purposes. Reference should be made to Rule 37(e) which empowers each branch to elect its own delegates to National Counci!. In some of the many proceedings pnefore us, 1ssues are raised as to who was entitled to be present as delegates at the biennial National Council meeting in November 1976, but these issues do not affect the matters presently under consideration. it is sufficient to say that pursuant to the rules of the branches of the S.D.A., delogates to the National Council from some branches had been elected pursuant to an election in which all financial mambers of the branch were entitled to vote while delegates to the National Council from other branches had been clected by and from the metbers of the Branch Committee of Managerent, the membars of which had been elected to that Committee pursuant to an election :n which all financial members of the branch were entitled to vote. The Conciliation an@ Arbitration Amendment Act (No. 2} 1976 (No. 11? of 1976}, whach came into operation on 12th November, 1976, el fected @ number of amendments to the Act. A deLlinitien of the phrase "Collegiate electoral system" and a new 4efinition of the phrase "Direct voling system" were insertea in s.4 of the Act, a defunrtisou of the phrase "One-Tiecr collegiate electoral system" was added co 41% afk * ~13- the end of s.4(1) of the Act and a new sub-section (5) providing for the application of the definition of "collegiste electoral system" was added to s.4 of the Act. Section 1233 of the Act was amended. The relevant provisions of s.133, as amended by Act No. 117 of 1976, read: "133.(1) In addition to the condaticns ceferred to in sub-section (:) of section 132, the conditsons to be complied with by ....... organisations include a condicion that the rules of ....... organisations — (a) shall provide for the election of the holder of each office within the eee vee. OFGarnisation either by - (2) a direct voting systom; or (ii) a collegiate electorzl syster being, in the case of an office the duties of which are of a Full-time nature, a one-ticr collegiate electoral systen; ee ee) a (3) An organisation that becama reqisteced before the date of commencoment of this ¢ub-soctiocr 45 allowed a period of 2 years after that date, or such longer period as the Industrial Pegistrar determines, within which te bring its rules wto conformity with the requirements of pararvraph (a) of sub-section (1)." (Note, sub-section (3) 15 set out as amended by Act No.108 of 1577 5.14. The S.D.A. is an organasation within the meaning of thrs suk-secticn. The relevant date 1s 12th) November, 1976.) tet On 8th November, 1976, the Returning Officer called for nominations for the 5 offices referred to earlier. He notified all members of National Council of the callang for neminations, Rule 15(a)}. For reasons I shall give Later, the Fact tnot this notice was given four days before the cerricncement of Act No. 117 of 1976 does not affect the validity of the electson. Nominations closed at the opening of the biennial] meccing of thu National Counc: cm 23rd Novonber, 1976, Rule L5{a}, and ltem 1 ot the nrder of business, Rule 10. One valid nominatica oply had been cecerved in respect of each of the offices of National Vice-President und 3 National Executive maurbers and, accercingly, on the sama aay, the Returning Officer declared Mr. Mijor, Mr. Rennett, Mr. Poe) and ~ 14 - Mr. Walsh duly clected to the oftices of National Vice-President and National Executive members respectively, no ballot being required. Two valid nominations had been received in respect of the office of National President and accordingly a ballot had to be conducted for that office, Rule 15(a) and Rule 15A. Item 14 of the order of business for the meeting, Rule 10, provided for the declaration of that ballot and this item apparently was net reached until 4th July, 1977. On that day, the Returning Officer declared Mr. Maher elected to the office of Nationai President, he having received a majority of the votes. At the hearing before us, debate tock place on whether the rejJevant rules of the S.D.A., and in particular Rule 12(a) and Rule 14, complied with the requirements of s.133(1) (a) of the Act, but I do not find it necessary to express any view on that matter. If at the present time the rules do not comply with those require- ments, $.133(3) enabies the S.D.A. two years after the L2th November, 1976 or such jonger period as the Industrial Registrar deterrinces, within which to bring its rules into conformity with those require- ments and, correctly in my opinion, it was condeded, that during that period rules which might otherwise contravene s.133(1) (a) could not be said to be invalid by reason of being in concravention of s.133(1) (a) and acts which depend upon the val'dity of those ruics could not be invalidated by reason of the rules beiny in contravention of s.133(1) (a). In evidence before the Court was a copy of the Tederal Rules of the §.D.A. certified by the Registrar to be a true and correct copy of the rules of that organisation and tnercfore, pursuant to s.157 of the Act, prima facie evidence of the rules of the S.D.A. At no material time has there been any order of the Australian Industrial Court or the Fedsial Court cf Australia made pursuant to s.140(2) and (3) of the Act declaring any relevant rule of the S.D.A. and in particular the whole or any nare of Rule 12(a) or Rule 14 to be contrary to the provisions of s.140(1) of the Act. Accerdingly, on this materia] before the Court, there is nothing to suyyest that the election was invalid. The substantive argumenl in support of the ordcis scuvhlk an the rule nisi was based on the submicsion that by operalion of law the relevant rules and in particclar RujJes lZ(a) and Rule 14 had become null and void and of no effect at a period subsequent to the 3lst October, 1975 and prior to the L2th Noveowber, 1976 and that the amendments to the Act offected by Act No. 117 of 1976 did not and could not. revave those rules. lt wes then argued that since the election was conducted pursuant to rules, which at all material times were void, the election was invalid and accordingly the rule nisi should be made absolure. It was argued that despite the fact that the challenged rules were in the "Rule Book" never- theless in law the relevant rules should he regarded as nor being in existence. If this argument 18 correcec, it would mean tuat the provisions of s.140(5) are otiose since it would never be neceesary to obtain an order under s.140(2) and (3) on which sub-seecteon (5) 1s to operate since the invalidity arises from the convravention of s.140(1) of the Act or other provision of law and coes not Gepend on the operation of s.140(5). In order to understand the argument, it 15 necessary cto refer to the history of s.133 of the Act. For the purposes of argument, 1t was conceded that prior to 13th Novenber, 1973, the relevant rules were not contrary to the provisious o. $.133 or s.140(1) of the Act. The Conciliation and Arbitration Act J%73 (Act No. 138 of 1973), which came into operation on 13th November, 1973, by s.52 effected substantial amendments to s.133 of the Act. For present purposes, the following provisions of ¢.133 as so amended may be set out. "133.(1) In addition to the conditions referred to in sub-section (2) of section 132, the conditions to be complied with by ....... organisations include a condition that the rules of .. .... organisations - (a) shail provide for the vlection of the holder of each office withan the .....,. organization at an eleectacn at which all financial members, or all f'nancial ~onbers included in such branch, section mr other division, or in Such class, aS 18 ipprapriate, having regard to the nature of the office, are subject to reasonable provisions with respect to enrotment, eligible to vote; ee ae as my (1A) Where, ummediately berere the cunmancerent ¢c this sub-section, the rules of an organi stion peevadid for the falling of en offaica, boing an oltx.ece the loicere ot which 18 a mombor of the cenmittee of mananerort ar the organization but the duties of which are of @ part -~-16- time nature, otherwise than by election directly py the members of the organization who would he entitled to vote 1f the rules were in accordance witn paragraph (a) of sub-section (1) but by a procedure in which those members clect delegates to a conference or council of the organization and those delegates elect a person to hold that office from amongst themsclives, those rules shall not, by reason only of that provision, be taken to fail to comply with paragraph (a) of sub- section (1). (3) An Association which was registered as an organization on the date on which the Conciliation and Arbitration Act 1973 received the Royal Assent is allowed a period of twelve months aftcr that date, or such longer period as the Industrial Reyistrar determines, within which to bring its rules into conformity with the requirements of sub-section (1). (4A) Notwithstanding sub-sections (3) and (4), where, immediately before the comnencement of this sub-section, the rules of an organization provided for the election of the holder of an office in the organization otherwise than directly by the members of the organization who would be entitied to vote 1£ the rules were in accordance with paragraph (a) of sub-section (1), but by a procedure in which tnose members indirectly take part, the organization 1s allowed a period of three years after that date within which to bring its rules, so far as they relate to that office, into conformity with paragraph (a) of sub-section (1)." . It was then argued that the method of election of members to the National Executive in the manner prescribed by Rule 12{a) and Rule 14, when considered with the rules of some of the branches of tho S.D.A. which provided for the eleclion of branch delegates to National Council to be by and from members of the branch committee of management, was not in conformity with the cequirenents of s.133(1) (a) and did not come within the exclusion provisions cE s.133(JA) and s.133(4B). Mr. Shaw, 9.C., who wath Mr. Ryan, appearcd for the respondents, arcucd that the rules were protected by the exclusion provisions but I do not find it necessaly lo express 4 view on that issue. For the purpuses of argument, I will asgune that the rules of the S.D.A. did not comply with the reygvirements of s.133(1) (a) and were not protected by the exclusion provisions Mr. Handley conceded that s.133(3) extended the relevance -17- date to 12th November, 1974. The Industrial Registrar determined further extensions of time and, on the evideiuce before the Court, on the most favourable view to the respondents, the last period of extension ceased on 31st October, 1975. It was then argued that on the 1st November, 1975, the relevant rules of the S.D.A. and in particular Rule 12(a) and Rule 14, by operation of law, became null and void and disappeared and were not revived by the provisions of Act No. 117 of 1976. For a number of reasons, I reject this argument. It proceeds on the basis that the provisions of s.140(5) have no particular effect and this cannot be correct. Further, 1n Shearer's Case, supra, all the Justices of the High Court. held that s.140(2) and (3) conferred a judicial power upon the Court and that if the Court made an order declaring that the whole or part of a rule contravened s.140(1), then s.140(5) of its own force deemed the rule or part of the rule void. In that case, McTicrnan, Fullaga~, Taylor and Menzies JJ. each expressed the view that in procecdings other than under s.140(2) and (3), a Court could decide whether a rule contravened s.140(1) of the Act, and if 4st did, then thac Court was entitled to treat as invalid any act which depended woon the validity of that rule. This view 1s well illustrated by the following passage appearing at pp.372-373 of the judyment of McTiernan J.: "First it should be observed that it follows from the mandatory language of s.140 sub-s.(1) that any rule of an organization which 1s contrary to the provisions of the sub-section is unlawful and for that 1easun 1s not enforceable in any court. It seems to me that a consequence of the sub-section is that 1f any claim is raised in any court founded upon a rule of an organization and s.140 sub-s.(1) is pleeded against the claim, the court has jurisdiction by virtue of that sub-section to decide whether the rule is inconsistent with the sub-section and, 1f the court so decides, 1t ought not to uphvid the claim. the decision of the court would Le binding only as between the parties. lin my ofinaon, 3t 28 not neccssary that there should be a procecding in accordance with the procedural provisions of s.J]40 herere the Industrial Court to enable a decision to ne given chat a rule 1S contrary to sub-s. (1)." -/1G..- In the same case Kitto J,, with whose reasons Dinoa C.J. agreed, tcok the view that the jurisdiction confe1lred by $.140 constituted an exclusive code and s.140{1) could not be applicd in any proceedings other than proceedings instituted vader s.140(2) and (3). Nevertheless, Kitto J. expressed the view that a rule may well be invalid 1£ 1t contravened provisions of a Federal Statute, sce page 386. One of the recesons expressed vy Kitto J. for holding that 3.140 provided an e:clusive code, was that otherwise a rule may be invalid at a particular time but that a change in circumstances micht thereaftcr wake 1t valid. At pages 380 to 381 His Honour s21d: "But the section considered as a whole avnears to me to embody a coherent plan for which che whole function of sub-s.(1) 1s to take an essential preliminary step. The stcp 1s to lay down propositicns in relation to which the rest of the secticn is to operate, propositions in the forn of prohibitions to be observed by every rule on Duin of a liability to invalidation by the operation of sub-s. (5) upon the non-observance keiny qyudicially declared in proceedings brought for the purposs by a member, rather than to enact absolute prehibttions Intended to have a separate and indowe ident invalidating effect. 1f the contrary had been antended, the culmination of a provecding under the section would surely have bcen a decleretian of the pre-existing invalidity of the inconsistent rule, instead of being an order which say. nothing at all about invalidity but fulfils a condition which the section prescribes for the statutorv avoidance of the rule for the future. The view I ave exprussc scoms to me to find support in the nature of some of the prohibitions themse]ves. I need refer only to the provision of par.(b), that a rule shali not be such as to prevent or hinde1: members From obserwing the provisions of an award. Whether a parlrenlar rule contravenes this paragraph 18 a question which May require different answers at different tims, having regard to the terms of the avards in *orce for the time beiny and the andustrial s1itvations to which they relate. The irtencion can barciyv be chat invalidity shal] attach to a rule ats soon as a Sltuatica arises in which the rule falls the description, shal] endure whole the situation JjJasts, and shall cease when tho situetion comes to an ond. It is a wuch more likely intention that when Lhe Court finds a contiavention cf sub-s.(Ll) existing ut a particuler time, and tha orainigatson, 1f giten an opportunity to alter the contravening rnle, nas not altered it, the rnie suall thereupo:, becore void." o/19.6- - 19 - Implicit in this expression of opinion 1s the view that if s.140(1) operates of its own force, then a rule may be valid or invalid at differing times depending upon the facts proved at the relevant time. In the same case Windeyer J. expressed no final view on the two expressions of opinion concerning the effect of s.140(1) but clearly recognised that in the absence of an order having been made under s.140(2) and (3) a rule may be valid or invalid at differing times. At page 389 His Nonour said: "Whether or not a rule contravenes sub-s.(1l) dapends, I think, upon the terms or effect of the rule considered in relation to circumstances prevailing at a particular date - to the then provisions of vine Act or of an award or to other circumstances then existing. I do not think that the matter 1s to he determined by considering whether at the date a rule Was made it contravened sub-s. (1), but rather whether it does so at a date in relation to wnich its observance is challenged. A change in an avard, or other circumstences occurring 2n the meantime, cculd result 1n a rule that was a contravention of sub-s. (1) before such change being no longer abiectionable on that ground at the date its validity came into question. The effect of sub-s. (5) 1S to maxe a rule, or part cf 4 rule, that has been declared to contravene sub-s. (1) vold as from the date of the order, 1* the sense, that as from that date, 1t can have no more operation than 1f it had been on that date repealeu. If c1irceuwustances should so change that such a rule would no Lonaer be objectionable, then it could be formally re-enacted; but it would not come into operation hecause of Lhe changed circumstances. So read, sub-s. (5) docs not seem to me necessurily inconsistent with the vilew that, although no declaratory ordcr had been made bv the Industrial Court under the section, nevertheless a member of an organization, against whom 1l was sought to enforee a rule, could rely upon the fact that 1t contravened sub-s. (1)." The submissiens made in support of the rule nisi in the present case are contrary to these expressions of opinion by Kitto J. and Windeyer J. There is nothing in the opinions of the other mcrbers of the Court in Shearer's Case to support che submissions made. : fodees The argument asserts that a rule which contravenes s.133 or ».140(1) of the Act is null and void and of no effect, and, for legal purposes, ceases to exise at the woment it contravenes s.140(1) of the Ast. In my opinion thas assertion as based upon a misuse of words and involves the extension of a word to give a meaning to a provision in a Statute when in reaiity the words in the Statute should be interpreted in the light of the facts proved to exist at the time of the challenge. The position 1s clearly stated 1n Brooks v. Burns Philp Trustec Co. Ltd. (1563) 121 C.L.R. 432. In that case the High Court had to consider the effect of a clause in a deed which offended against public policy. At pages 458 to 459 Windeyer J. said: ""Vo1d", "Invalid", "Unenforceable". tf have in thas judgment used the words "invalid", "unenforceable" or 'ineffectuni", as, in similar cases, Othur judges have done. Other words and phrases can be used. For exanple, in the judgment under appeal the appellant's covenant 18 cal.ed "illegal and void". A similar promise was calied by Asquith L.J. "veid and unenforerabiut: Gaisberg v. Storr [1950] 1 K.B. 107, at p.115. The words used do not matter if the actual Leyal result they are used to express be not in deubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt farst one of the familiar legal aduectixus - "allegal", "void", "unenforceablie", ""anelfectual", "nugatory" ~ and then having given an act a label, to deduce from that its results in lew, 'That 1s to invert the order of inguiry, and by so doiny to beg the question, and allow linguistics to determine legal rights. That need not happen af verds he used, as Hobbes said that by wise mean they shonld ne, only as counters to reckon wilh; bat vcekoring becumes difficult if the values of counters are not conetant. Thece may bo no difficulty for adherents to Humpty ofrlaee - 21 - Dumpty's principle as czxpounded ky him to Alice. But his latitude and his command of his words as his servanrs are not generaliv allowed to lawyers. They are called upon to interpret other men's words. The word "void" has never been an easy word, as is pointed out in the second Australian edition of Cheshire and Tifcet's law of Contract, p.440. Tt is commonly said that when it deScr'bes a juristic act at means that it was always devoid of legal conseyuences. But this in itself 1s ambiguous, as witness the difference (which I have emphasized by italics) between the first edition of Sir Georye Paton's Text Book of Jurisprudence (1946) and the second edition — (1951). In the First it was said (at p.241) that "if the defects [of a juristic act] are such that the act has no legal effect at all, then the act i¢ said to be void". The relevant passage in the latter edition (at p.250) states - more accurately perhaps, and anfluenced probably by Professor Cohn's remarks in Law Quarterly Review, vol.64 (1948), at pp.325,326 - "A defect may make a juristic act either void or voidable. If the defect 1s sucn that the act 1s devoid of the legal results contemplated then the act 1S said to be void: A volu act is sometimes said to be a nullity in law, but this is not strictly so, as an act vo1d in its primary intent may nevertheless have an effect in anotner way." It seors to me that the defects, deficiencies or consequences of the appellant's covenant are not well ascertained by calling 1t void or using any particular epithet. The better course sccms to be to abandon single words and to look at what hus been satd to be the result of a covenant such as that un cl.2 of the deed, leaving aside for the moment the effect of the Divorce Court's approval of the decd." In the present case, the submissions put assert that if a rule contravenes s.133 or s.140(1) of the Act it is void and thereby 1s null, even though the rule is not illegal, and that a null rule is a nothing and therefore ceases to ervist:. Such reasoning 1S not permissible. It 18S necessary for the Court to determine the actual legal result of acts considered in the light of proved facts and statutory provisions applicable at the relevant time, The lack of precision tn terminoloyy tn @ similar area cf law is referred to in Buckley v. Tutty (1971) L25 C.L.R. 353, In that case particular rules of a footbaLl association were hele to impose upon a player a restraint of trade which was unreisonibis and unjustified. The association aryued that in those circwistances the law would not lend its az:d to enforve tnose rules }ut that the association could observe them voluntarily. In a Jornt juagment, @ op - the Court at p.379-380 said: "The terminology used hy courts of high authority to describe the consequence of holding that a contract as in unreasonable restraint of trade has not always been uniform and precise. Such contracts have often been described as illegal (e.g. Swaine v. Wilson (1889) 24 Q.B.D. 252; McEllistrim ve Ballymacellicott Co- operative Aqricuitural and Dairy sooty Lid. [1919} A.C. 548; Lindner v. Murdock's Garace J250) 83 C.L.R. 628, at pp.640, 653, but they are not tiesal an the sense that tc enter inte tham is to commit an offence or an actionable wrony (Mogul Steamship Co. Ltd. ve McGregor Gow & Co. [1897] A.C. 25, at pp.39, 42, 46-47, 51. It was said by Lord Macnaghton in the Nordenfelt Case [1894] A.c., at p.565, and it has frequently poen repeated, that contracts 1n unreasonable restraint of trade are void, but according to Lord Athinson in Thompson v. New South Wales Branch of the Pritish Medical Assccjation [1934] A.C. 764, at p.759, this involves a misuse of Janguage. In Josepn Evans «# Co. Ltd. v. Heathcote [1918] 1 K.B. 418, at p.431, Runkes L.J. said that contracts of this kind are more properly spoken of as contracts which the Jaw will not enforce. There 1s much authority to support this view, and some of 1t may appear at first sight to support the avpclilants' contentions. In Attorney-General (Cth) v. Adelaide Steamship Co. Ltd. [1913] A.C. Vel, at p.797, Lord Parker of Waddington said: "The parties to such a contract, even if unenforceable, were always ut Liberty to act on it in the manner acrecd." And in Esso Petroleum Co. Ltd. v. Harper's Gara (Stourport) Ltd. [1968] A.C. 269, ac p.29o7, wat" Reid sald: "One must always bear in mind thak an aqrzenent in restraint of trade is not generally unlawful if the parties choose to abide by it: ait is only unenforceable if a party chooses not to abide by it." 4% However, in these passages theirc Lordships were speaking of a contractual restraint which all partics to the contract were willing to observe. To sav thar a restraint is unenforccahle does not mean that the law wilt sumpiy ignore its existence or that the only reredy of a person upon whor it 1s sought to be imposed is te defend such legal proceedings as are brought to on it. The law treats unreasonable restraints as anenfo.rceable because it 1s contrary to the public welfare that a man should unreasonably be prevented from turning h.s Livins in whatever lawful way he chooses ara that tne punplic should unreasonably be @Geprivea vi the services of a man prepared Lo engage in erployment. It would undeced be a strange Weakness wn the tuyv 1f 2t alforded no protection to a person wio wos ccainst his will subjected an fact to an unreasonchlo ce ane of trade. Vowoyor, 1t seems to us now to b# established that ip an appropriate case a ember of cl associlaticn may cptoin ls a declaration that a rule of the association which affects hir 18S unreusonobly in restraint of trade and an injunction to prevent the rule being appi+sed against hin." Similar reasoning applies with respect to rules of an oryan?sation which contravene s.140(1) of the Act. It 1s clear from the orders made by the High Court in Buckley v. Tutty that the offending rules of the association were not null or a nothing. They remain in existence. Unfortunately, in the reasons for decision in Shearer's Case, supra, there 1s a similar lack of precision in terminvlogy bat this cannot affect the correct application of s.133 and s.140(1) of the Act to the facts and circumstances proved to exist at the time relevant for the determination of the issues before the Court. The issue 1s whether, at that time, the rules contravened s.133 or s.140(1) of the Act. In proceedings under s.140(2) and (3) the time as the time of the hearing before the Court. In proceedings other than under s.140(2) and (3), the relevant time 1S when the challenged acts occurred, dependant as they are upon the rules and togislative provisions as they then existed, The fallacy contained in the submissions put car be illustrated by an example. A member of an organisation conuwences proceedings under s.141 of the Act against othec nembers of the organisation who together constitute the committee cf management oF a branch of the organisation. The claimant seeks orders directing the respondents to perform and observe the rules of the oryanisatjion by treating as nujl] and void and of no effect certain resolutions passed at a meeting of that branch committee of management. Tor validity, the resolutions depend upon a rule of the organisation but the claimant alleces that the rule is contrary to an award, s.140({1) (a) of the Act. On the evidence presented to it in the proceeding:, the Court finds that the rule is contrary to the avard and makes an order direciing the respondents to treat the z:esolutiens as null and vor1d and of no effect. Therenfter anotherc momber of the Same organisation commences proceedings under s.14] of the Act against othur menbers of the organisaison whe together constitute the commitire of management of anuther branch of th orqanisetton. The claimant seelis orders directing the respordenls to perfolm and observe the rules of the o1gauisation py treating 4s noli and voia and of no effect certain resolutions vaséeed at a meciany ob that branch comnsittee cf management. Vor valaudity, the resviuricns donont - 24 - upon the same rule of the orgunisation but the claimant alleges that the rule is contrary to the same aw-rd which has remained unaltered. On the evidence presented to it in the Procecdings, the Court finds that the rule 1s not contrary tc the award. The Ppurtles in the second proceedings are different to tne parties in the first proceedings and no estoppel arises in the second proceedings and the Court must decide the 1issuc on the material then before it. in the first proceedings, the Court did net have jurisdiction to make an order declaring that the rule contravened s.140(1) of the Act. The only order made was to direcs the respondents to observe the rules of the organisation. The organisation was not a party jn either of the proceedings. It cannot be said that the order was binding on all members of the organisation and that as a result of the order the rule had ceased to exist or had become a "nothing" and therefore could not be relied upon by the respondents to the secund proceedings. The jurisdiction conferred on the Court by s.140 of the Act 1s designed to resolve matters of this kind. That scction ensures that the organisation concerned 1s given the opportunity 109 be heard, s.140(4), and if a @eclaration is made thet a rule contravenes s.140(1]) of the Act, s.140(5) provides that thereafte the rule 1s deemed to be vold as against all persons. That. secti does not have retrospective effect. Finally, acceptance of the submissions put would impose intolerable burdens on organisations and members of organisations and would make complex an area of law that should be as sinmle as possible. If the argument put is correct, 1t would mean that in every case before any Court in which the validity of a rule or the validity of acts dependant upon a rule of an organisation are in issue, there would need to be a full examination of the niscory of the rule, of statutory provisicns and amendments to those provisiens, of awards and of many other circunstances to ascertain whether at any time in the past the rule had contravened any part of s.140(1) of the Act. If such a contravention had occurred, the rule thereupon woui7 have become a nullity as from that moment and thereafter could not be relied upon. With respect, £ agree with che observaijons expressed in R, ve Clarkson Lx parte Victorian Enpiovyers Pedoration (1973) 231 C.L.R. 100 per Menzies J. at p.lijl: "In the freld of industrial relations, every consid- eration 18 in favour of simplire'ty as opposed te complexity and the simple rule acopted in the Duatop Cause - that an organivation c.n represerc the c-oay belonging to it as members in accordunce with 1cs6 3] a - > , fet, conditions of cligabality - 1s greatly to be fed, -25- preferred to some different rule that would always hceow open to cxamination the capacity of an organization, a party to the dispute, to represent some of those who are its members accoidiryg to ils conditions of eligibility by reason of the particular description of the industry in or in connexion with 1t when it became registered, Industrial tribuna]s should be applied tn its full scope." Mr. Handley did not submit that the rule nisi under s.140(2) and (3) of the Act should be made absolute. He conceded, rightly in my opinion, that Rule 12(a) and Rule 14, if currently rules of the S.D.A., do not contravene s.140({1) of the Act since the S.D.A. has two years from 12th November, 1976 within which to bring thein into conformity with the requirements cf s.133(1) {a) of the Act. H1s main argument, however, was that on lst November, 1975, the two rules ceased to exist and therefore are not now rules of the $.D.A. and therefore could not be subject to any order or deciarution under s.140 of the Act. I have already expressed my opinien that fe that argument should be rejected, but the submission made on th s aspect of the matter illustrates a further reason why the argument should be rejected. In most, 1f not all, applications to the Court under s.140 of the Act, the challenged rules of necessity must have contravened s.J40(1) prior to the hearing by the Court. If the rules had ceased to exist at the time they first contravened the sub-section, rarely, 1f at all, would there be in existence rules which could be made subject to an order and declaration uncer s.140(2) and (3). This could not have been the intention of the legislature. The particular rules under cnallenge are Rule 12(a) aud Rule 14. Rule 15 and Rule 15A provide the procecure by which the election 1s te be conducted. An cssential part oF any election 15 the calling of nominations and here the nominations were called fer on 8th November, 1976, four days prior to the amendments cffectec by Act No. 117 of 1976. Mr. Handley subnittecd therefore, on tho authority of Friend v. Barnes (1969) 15 F.L.R. 184, thut the election Was invalid. In Friend v. Barnes, Spicer C.J. and Snitacrs J., > @ joint judgnent, said it page 201: "That the calling For and receiving of nominations are integral purts of the corduce of at clecticn of the Kind with whick the Cener1liation ard Arbitration Act 1s ecncerned is not io be doubcea. -~ 26 - Elections in organizations ox thousands of members ean not be carried out 1£ such steps be ommitted, Reference to lialsbury's Lassof Dncland, 3rd ed., vol.14, Pt.2, ss.4 and 5, and to May's Parliamentary Practice confirms that the concept of conducting an @lection extends to the initzating process such as the issue of the writ, the calling for uominatious and their scrutiny, as well as the actual process of arranginy for and receiving the votes and docluring the poll." In the present case, s.133{1)(a) of the Act, in force on 8th November, 1976, required that the rules provide for the relevant election to be an election at which all finencial wembers were eligible to vote. Before the closing of nominations that requirement had been repealed and different requirements applied. In fact all persons who were entitled under the rules of the S.D.A. to nominate and to vote at the election received a notice calling for nominations. After the new sub-section came into operation, there still remained some 11 days before the close of nominations. These facts are very different from those in Friend v. Barnes and an my opinion the election held to f1]1 the specified citfices in the present case are not invalidated by reason of the principles enunciated in that case. In view of the opinions already expressed, I do not find it necessary to express any opinion on other submissions made by Mr. Shaw concerning the nature of s.133 of the Act and the effect of certain sub-sections of that section. . On 19th May 1978 the Haigh Court delivered judgment in R._v. Dunphy and Others ex parte Maynes. The reasons for jucgment given therein by Mason J. and agreed in by Barwick C.J. and Stephen and Aickin JJ., support the expressions of opinion set out earlier in my reasons for judgment. In particular Mason J. said: "In this context, despite the contrary view of Windeyer J. expressed in Shearer's cas2, at p.289, at 18 my opinion that the court's order in accordance with s.140(2} and (3) speaks as to the rules as at the date of the order. An order should not be made by the court unless it is satisfied chat the relevant contravention exists at the date of the order. It is from then that 4 rvle declarc? to contravene s.140(1) is deemed to be void and it is from then that time runs under s.140(7). /27.. ~ 27 - It would be strange indeed 1f the coure could make an order that a rule contravenod $.340(1) (a) unless it was satisfied that the cortravention persisted to the uate of the oruur. For 2f the contravention has been rectiftod or kas been terminated between the commencement of the procecdings and the Ante of the order, it would revecitheless be deemed to be void by virtue of s.140(3) as frou the date of an order declaring the contravention." In my Opinion the rule nisi herein should be dischascrd. On 29th March 1978, the three proceedings adjourned to that date came on for further nearing and the other nine procecdings were listed for mention. On that occasion Mr. Kenzie appeared with Mr. Geoffrey Shaw for those persons previously represented by Mr. Handley 9.C. and Mr. Kenzie. The outstanding assue in Matter VY No. 27 of 1977 was argued and on che 5th 7pril] 19/8 the Court reserved its decision on that issue. Turrcher incerin orders having been made, the remaining 11 proceenings were scjyourned sine die. Matter V_No. 27 of 1977 - O'Neill and Others v,. Egan and Others The outstanding issue in this proceeding relat:s to the orders sought by the claimants pursuant to s.141 of the Act. The claimants seek orders that the respondenrs to the rule nisi, other than the S.D.A., perform and observe the rules of the C.O.A. by treating as null and void and of no cffect a notice comening a meeting of the Branch Coyncil of the New South Wules Branch of the §.D.A. issued in the name of the claimant Turmire for 10.30 a.m. on Friday, 16th september 1977 and further by treating as null and void and of no effect any meeting held pursuant to the said notice. The meeting in fact was held on the 16th September 1977 prrsuant to the said notice. The only issue raised ny the ruie nasa relares to the validity of the corvening of that meeting and neochiny tlas 1S said in these reasons ics to be taken as dealing with the vuladi ef resolutions passed at that reeting anc which war be opca to challenge on other grounds. In my opinion fer the reasons expresses! an Lhe ceusanis for judgment hy Smithers J. the acetiag of the ranch Counce.) cho une ery a a! sRew Sonth W.les Branch held on 16th September 1977 wus validly F onvenp:d and I have nothing further to add. Accordivoly in my opinion thc cule nisi herein ansofer as it relates to the orders sought. pursuant to s.141 of the Act should ke @isch-rged.