cf IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY Q 0, G. vise ~ ra Tf qnecdoResce scocceed, sorecnecsses JUDGMENT No. No.19 of 1979 IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 141 of the said Act BETWEEN: ROBERT ARTHUR COOK . Claimant AND: G. CRAWFORD, G.L. SMITH, S. MUTTON, R. FATRWEATHER, R. HEVEY, T. BOURKE and R. MASTERSON Respondents 14 September 1979 EVATT J. REASONS FOR JUDGMENT By rule to show cause granted on 31 May 1979 the claimant Robert Arthur Cook seeks orders pursuant to s.141 of the Conciliation and Arbitration Act 1904 (the Act) that the respondents herezn perform and observe the rules of the Plumbers and Gasfitters Employees' Union of Australia (the organization), an organization registered under the Act by treating as null and void resolutions of the Federal Executive of the organization adopted on 1 and 2 May 1979 purporting --/2.. aw = + wens me a een oe we ne 2. to expel from membership of the organization five named members of the Sydney branch of the organization and dismissing the said five members from their respective offices in that branch and further that the respondents recognise the said five members as the holders of their respective offices on grounds that rr.13(6) and 35(10)(d) of the rules of the organization are invalid and on the further ground that each of the five members were denied natural justice. The claimant is the Chairman of the Sydney branch of the organization and was not one of the five members so expelled or dismissed from office. The seven named respondents are members of the organization constituting its Federal Executive. Rule 13(6) reads: "13. Offences and Charges 6. Any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35. " Rule 35(10)(d) as certzfied pursuant to s.139(4) by the Registrar on 25 October 1978 reads: "35.-Federal Executive (10)(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to (i) pending the investigation of the charges or complaints to suspend an any officer cfrom -performingall] rr any of his duties for a period not exceeding three months; (ii) to impose a fine not exceeding $200; .-/3.. 3. (iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross neglect of duty or who has ceased according to the Rules to be eligible to hold the office; (iv) to expel any member. The said rule to show cause was made returnable for directions hearing on 11 June 1979 when the claimant and the first named respondent Mr G. Crawford, General Secretary of the organization were represented by Counsel. Certain directions laying down the program for the filing of points of claim and points of defence etc. were given resulting in the claimant having to file affidavits in reply on or before 31 July 1979. Accordingly a date early in August for the hearing of the matter could have been granted but at the request of Counsel for the claimant the 3 September 1979 was set for the hearing of the matter. Liberty was granted to all parties to apply to the Court for further orders or directions on 48 hours notice. At this directions hearing Counsel for the claimant indicated that there was a possibility of an application for interlocutory relief being made but at that time such relief was not sought. Counsel then stated that it was considered that the most convenient course was for an assurance from the respondents that no action would be taken pursuant to the purported decisions to dismiss »-/4.. or expel the said five members pending the resolution of the matter by the Court. Counsel for Mr Crawford then indicated that no such assurance was or would be given. On 27 June 1979 in matter V.23 of 1979 Mr Crawford was granted an order nisi pursuant to s.141 of the Act calling upon certain respondents including Mr Cook, the claimant in the present proceedings and nine other named respondents (being the holders of various offices in the Sydney branch of the organization other than the five members referred to above) to show cause why certain orders should not be made giving directions to those respondents to perform and observe the rules of the organization in certain respects. The return date shown in such rule was 16 July 1979 which date was stated to be the date on which directions would be given by the Court and when a date would be set for the hearing of the matter. On that matter coming on for directions on 16 July 1979 Counsel for Mr Cook the claimant herein then pointed out to the Court that two applications in the present matter dated 4 July 1979 had been made returnable for 24 July 1979. These two applications were then not listed before the Court. The first was an application by Ulick Colin Bignell and Harold Shooter for an order that they be added as claimants present in the/proceedings. Both were two of the five officers purportedly expelled from membership of the organization and dismissed from office in the Sydney branch of the organization. Mr Bignell was at the time of the purported --/5.. 5. expulsion and dismissal the Secretary whilst Mr Shooter was then the Assistant Secretary of that branch. The second application dated 4 July 1979 was an application by the claimants seeking interim orders pursuant to s.141(2) that, pending final hearing of the rule to show cause herein, the respondents perform and observe the rules of the organization by treating as null and void the resolutions of the Federal Executive of 1 and 2 May 1979 purporting to expel the said five members from membership of the organization and dismissing them from their respective offices in the Sydney branch and that the respondents take no step or action pursuant to the said resolutions and for a further interim order that pending the hearing of the proceedings the respondents recognise the said five members as being the holders of their respective offices in the Sydney branch. On 16 July 1979 I was unaware that such applications had in fact been filed and that a return date, 24 July 1979, had been granted for the hearing of the applications. July 24th, 1979 was not a convenient date for me to hear such applications owing to Court commitments interstate and Counsel were so informed. Such applications did not necessarily have to be listed before the Court as then constituted. Subsequently, an approach was made to my associate to have the said two applications heard by me on 10 August 1979, which date was apparently suitable to all parties. On 10 August 1979 Mr McAlary Q.C. with Mr Shaw appeared for Messrs Bignell and Shooter and for the claimant in matter No.19 of 1979 whilst Mr Laurie Q.C. and Mr Gray appeared for the respondents other than the last named respondent Mr R. Masterson. Mr Kenzie of Counsel appeared --/6.. Mori thaterespondent! whocisethéoSethretarygsofrthetNewéasthe branéhcoftthe ofgahezdttonstle branch of the organization. The respondents consented to the adding of Mr Bignall and Mr Shooter as claimants in matter No.19 of 1979. Mr McAlary sought leave to add the organization as a respondent to the proceedings as certain certified rules of the organization were being challenged in the proceedings. In view of s.141(8A) it was ordered that the organization be added as a respondent. Mr Laurie then appeared for the organization. Mr McAlary submitted that in view of the decision in Roots -v- Mutton, 32 A.L.R. @15 it was clear from the affidavit evidence before the Court that the claimants had a prima facie case and were very likely to succeed on the contention that the rule amendment to the present r.35 and in particular r.35(10)(d) adopted by the Federal Council at its annual meeting in August 1978 and certified, pursuant to s.139(4), before 1 May 1979 had not been validly adopted by the Council in accordance with the certified rules of the organization and that such evidence showed the balance of convenience to be in favour of the claimants and accordingly the claimants were entitled to the interim orders sought. The rule-amending rule of the organization which was considered in Roots -v- Mutton (supra.) was the then r.28, This read: "(1)The rules of the union shall not be amended except on a resolution carried by a majority of the council. o/7.- 7. (2) Any member desiring to submit to the council any proposal to amend the rules must first submit such proposal to the meeting of his branch specially convened for the purpose. (3) If such proposal be approved by a majority of the members present at such meeting it shall be forwarded to the head office for submission to the council. (4) The general secretary shall prepare an agenda of any such proposals and forward copies of same to all branches, not less than s1x(6) weeks prior to the council meetings to which such proposals are submitted. (5) The council may at any time make or amend any rules, so that the rules of the union may comply with the requirements of the Commonwealth Conciliation and Arbitration Act, or any similar State Act." In the present proceedings it was the claimants' contention that a proposed amendment to thectenttEted rules dealing with the subject matter set out in the present certified r.35 had been forwarded by the West Australian branch of the organization pursuant to r.28(3) and that such proposal had thereafter been circulated by the General Secretary to all branches pursuant to r.28(4) but that the amendment to the present r.35 as adopted by the 1978 Federal Council was not in the same form as that proposed by the West Australian branch. In particular, the West Australian proposed amendment to that rule did not include any proposal for the expulsion of a member from the organization at all and that prior to the amendment to r.35 in August 1978, the rules made no provision for such expulsion or for the removal from office of any officer. «+/8.. Mr Laurie then indicated to the Court that r.28 set out above had in fact been amended by the September 1977 Federal Council of the organization and that such amendment was certified, pursuant to s.139(4), on 1 February 1978. Such amendment made provision for the re-numbering of r.28 to r.27 and for the deleting of sub-rule (5) thereof and substituting a new sub-r.(5) which reads: "S, The Council may at any time make or amend any rules. " Mr Laurie indicated that r.27(5) was in this form as at August 1978 when the Council adopted the amendment to the present r.35 and in particular r.35(10)(d) and consequently the decision in Roots ~v- Mutton was not applicable in these proceedings although certain dicta therein was relied upon in support of the argument that the amendment to the present r.35 had been validly adopted by the 1978 Council pursuant to r.27(5). This being so, it was submitted that the respondents had a complete answer to the claimants' arguments in this regard. Mr Laurie further contended that the evidence showed that the balance of convenience was such that interim orders should not be made. He pointed out that the five members who had been expelled had been charged that they, whilst officers of the Sydney branch of the organization, had (inter alia) for some period of time (a) encouraged members of the organization to resign from such organization and either to remain members of the New South Wales State Union or join that union if not then members thereof whilst (b) any new member joining the State Union who was not a member of the organization was 2/92. 9. discouraged from joining that organization. These charges it was submitted were most serious and such conduct was such as to undermine the very foundations of the Federal organizations. Further, it was submitted, a tribunal acting honestly could readily find that such conduct amounted to gross misbehaviour and/or gross neglect of duty within the meaning of those phrases in r.35(d)(10)(iii) and in s.133(1)(£) of the Act. Mr Laurie also submitted that the expulsions and dismissals of the five members did not affect their position in the State Union and they each still retained their respective offices within that Union. On the other hand, the Federal Executive of the organization had under the rules moved into the Sydney branch of the organization so that the affairs of that branch were in fact being carried on. Further, Mr Laurie submitted that in considering the balance of convenience the Court should take into consideration that originally the proceedings in No.19 of 1979 were commenced by a person other than one of the five members so expelled and dismissed from office; that, in the circumstances, there had been laches or delay in the bringing of the application of interim orders sufficient, bearing in mind that the date set for the hearing of the matter was then only some three weeks off, to deny to the applicants any right to the interim orders as asked. Mr Kenzie adopted Mr Laurie's arguments. Mr McAlary in reply indicated that he had assumed that 1t was common ground that his contention that particular --/10.. 10. amendments adopted at the 1978 Federal Council Meeting had not been forwarded from any particular branch of the organization also applied to any rule amendments adopted at the 1977 Council Meeting. This was clearly not common ground. Whether in fact such was the case, is a matter which no doubt will be investigated by the claimants. No argument was placed before the Court by the claimants on this application as to the strength of their claim that they (or any of them) had been denied natural justice or that the conduct of the five members alleged in the various charges could not amount to "gross misbehaviour" or "gross neglect of duty" referred to in r.35(10)(d)(iii). At the conclusion of argument on 13 August 1979 the Court then stated that in its view the application for interim orders under s.141(2) set out in the application dated 4 July 1979 and filed herein should be refused and that the Court would publish its reasons later. This the Court now does. The principles applicable in applications such as that under consideration have been discussed by Bowen C.J. in World Series Cricket Pty. Limited -v- Parish (1977-79) 16 A.L.R. 181. At p.186 after reference to Beecham Group Limited -v- Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618 it was stated :- "The High Court was seized of the matter under the Patents Act 1952 and was not exercising any inherent equitable jurisdiction. Never— theless, it invoked principles developed in .-/ll.. il. equity to determine how it should exercise its statutory jurisdiction, though in some ways departing from those principles, where the special nature of the patent jurisdiction made it appropriate to do so. The High Court expressed the view that in all cases, including patent cases, a court, when contemplating granting or refusing interlocutory relief, must direct it- self to both the prima facie strength of the plaintiff's claim and the balance of convenience. A plaintiff is required to make out a prima facie case, "in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief" (ibid at 622 and 470). The strength of the case which the plaintiff must make out will depend upon the nature of the right which he is seeking to assert, and the consequences which will flow from the making of the interlocutory order. However, where the facts are seriously in dispute, the court will not undertake a preliminary trial of the action in order to forecast a probable result, but rather,if the plaintiff has a fair chance of success (and what will be required will vary according to the nature of the case), the court will proceed to look to the balance of convenience. " In the instant case, if the evidence as alleged in the affidavits filed 1n the claimants' case remains as it is therein set out there is probability that at the trial of the action, the applicants will be held entitled to relief. But it is clear that from the points of defence filed and from the matters mentioned by Mr Laurie, particularly as to the amendment to the rule amending rule made in September, 1977 and certified under s.139(4) in February 1978, that as at 13 August 1979 such evidence was unlikely to remain as it was alleged in such affidavits. Further I was, as at 13 August 1979, not satisfied that the claimants had shown that on the balance of convenience they were entitled to interim orders as asked. In this ../12.. 12. regard the Court in the exercise of its discretion took unto consideration the matters and circumstances referred to wearckuer herein including the delay in the making of the application for such orders and the fact that the date that had been granted for the hearing of the substantive matter was then only some 3 weeks off. Accordingly the application for interim orders was refused. I certify that this and the eleven preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice EVATI Associate Dated: Ih Splmber 197 7 nae ee