07 of 1979 APPLICATION BY LINEHAN UNDER S.144 RE KROGH AND FEDERATED CLERKS UNION OF AUSTRALIA CATCHWORDS Industrial law - application of s.144 to a person who joined the union otherwise than by use of s.144 - general bad character - eligibility to join union - meaning of "in a clerical capacity" Conciliation and Arbitration Act, 1904 ss.141 and 144 CORAM: J.B. SWEENEY 19 October, 1979 Sydney _ INDUSTRIAL DIVISION IN THE FEDERAL COURT OF AUSTRALIA No. 7 of 1979 ow eee QUEENSLAND DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under s.144 of the said Act by DESMOND LAWRENCE LINEHAN as Director and on behalf of the Industrial Relations Bureau for a declaration as to the entitlement of TERENCE CHARLES KEOGH to remain a member of the FEDERATED CLERKS UNION OF AUSTRALIA JUDGE MAKING ORDER: J.B. Sweeney J. DATE OF ORDER: 19 October, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: The application be dismissed. IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION No. 7 of 1979 Ne a QUEENSLAND DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under s.144 of the said Act by DESMOND LAWRENCE LINEHAN as Director and on behalf of the Industrial Relations Bureau for a declaration as to the entitlement of TERENCE CHARLES KEOGH to remain a member of the FEDERATED CLERKS UNION OF AUSTRALIA 19 October 1979 J.B. SWEENEY J. REASONS FOR JUDGMENT This is an application brought by the Director of, and on behalf of, the Industrial Relations Bureau ("the Bureau") seeking an order under s.144 of the Conciliation and Arbitration Act, 1904 ("the Act") for a declaration as to the entitlement of Mr. Terence Charles Keogh to remain a member of the Federated Clerks Union of Australia ("the Union"). The application is based on an affidavit of Mr. Linehan which in its turn refers to an affidavit of Mr. Keogh setting out certain facts and grounds on which he asked the Bureau to make an application. It is necessary to set out some of the matters dealing with Mr. Keogh's association with the Union. He joined the Queensland branch of the Union in approximately March, 1975 and at that time was employed by the Queensland branch for part of his working time as an organizer and also by what was described as the Queensland branch of the Furnishing Trades Union part time as an industrial clerk. On 2 June, 1975 he became employed full time by the branch and remained in this employment until 30 November, 1976. On this date he ceased to be so employed, there being a dispute whether he was Gismissed or resigned. He then appears to have been unemployed for some time and on 27 August, 1977 was appointed a union organizer by the Royal Australian Nursing Federation Queensland Branch. He remains in that employment. On 6 September, 1977 Keogh was advised that a resolution had been carried setting in motion steps to remove his name from the union's register on the ground that he was not eligible for membership. In accordance with the rules, before his name was removed a notice of the proposed action was given to him and in accordance with the rules he was heard by the branch executive before the resolution was finally adopted directing the removal of his name. He was allowed legal representation at the hearing. He was subsequently on or about 11 October, 1977 advised that it had been decided by the branch executive that his name should be removed from the register. He was at the same time advised that he was entitled to appeal against the decision to the branch council. The rules provide for an appeal from a decision of the executive to be made to the branch council within six weeks from the date of the decision appealed from. However Keogh did not appeal, assigning as his reason that he firmly and honestly believed that such an appeal would be rejected notwithstanding the justice of his claim. By letter dated 28 November, 1978 he wrote to the branch seeking to appeal against the decision and was subsequently advised that in view of the lapse of time his appeal could not be entertained. This present application was made on 10 July, 1979 and was preceded by some correspondence between the Bureau and the Union. The matter first came before me for a directions hearing on 27 July, 1979 when I was advised the issues were: 1. Whether Mr. Keogh was eligible for membership in the Union in his present occupation. 2. Whether he was a person of general bad character. An order was then made for particulars to be given of the matters relied on by the Union dealing with the second issue. The application then came on for hearing before St.John J. on 27 August, 1979. After some evidence had been given, His Honour found that he had been involved in prosecutions in certain matters which might be relevant to the issue of good character and so advised the parties. After discussion with the parties the further hearing was adjourned with their concurrence. It then came on for hearing again at Brisbane on 5 September last. At the hearing before St.John J., Mr. Keogh was given leave to intervene pursuant to s.144(7)(a). He was present throughout the hearing, gave evidence in chief to counsel for the Bureau and was cross-examined. He was then afforded an opportunity which he took of presenting any further evidence from himself. He was afforded an opportunity, of which he availed himself, of cross-examining the witnesses called for the Union and was advised that certain deponents whose affidavits were used by the Union would be present for cross-examination if he required it, but he did not wish to cross-examine them. He called two witnesses. He was afforded an opportunity of addressing the Court. In addition to the two issues which I have set out above, counsel for the Bureau during the course of his address argued that a declaration should be made under s.144(5) that Mr. Keogh was entitled to remain a member of the Union since he had complied with the rules. This argument was based on the view that s.144 gave a right to any member of an organization to remain a member thereof so long as he complied with the rules and so long as he was not of general bad character and was eligible for membership under the constitution rule of the union and that the section gave to him and the Bureau a right to seek an appropriate declaration. The argument involved the proposition that the Court should find that the branch executive had misdirected itself as to the meaning of the words "engaged in a clerical capacity" and that consequently its decision should be set aside as void and a declaration made to ensure that Mr. Keogh remained a member of the Union. ° There are many factual difficulties in the path of this argument. It was not suggested that in acting to expunge the register the branch executive had acted contrary to the rules or had denied Keogh natural justice. I do not have before me any real evidence as to the material before the executive on which it acted. The evidence in this case is that Keogh was appointed to his present position with the Nursing Federation on 22 August, 1977. Proceedings before the branch committee took place in September and October of the same year. Some tame after his original appointment at a date not clearly identified, a change took place in the duties performed by Keogh because of a re-arrangement of staff. I cannot then assume that the duties Keogh was performing in August/September of 1979 were the same as the duties he was performing in September/October of 1977. 'There is then just no material before me to show that the branch executive in any way mis-— directed itself. In that circumstance there is nothing to show that the decision of the branch executive was in any way open to attack as misdirecting itself. Apart however from this consideration the section to my mind does not permit such a proceeding as this. So far as is relevant the section is in the following form: "(1) A person employed in connexion with an industry or engaged in an industrial pursuit is, unless he is of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted as a member of an organization (being an organization of employees in or in connexion with that industry or of employees engaged in that industrial pursuit) and to remain a member so long as he complies with the rules of the organization. (2) Sub-section (1) does not entitle a person to be admitted as a member of an organization unless he is included in a category of persons who are eligible for membership of the organization under the rules of the organization, or to remain a member if he ceases to be so included and the rules do not permit him to remain a member. (2A) Subject to sub-section (2), sub-section (1) has effect notwithstanding the rules of the organization except to the extent that it expressly requires compliance with those rules. (5) Where a question or dispute arises as to the entitlement under this section of a person to be admitted as, or to remain, a member of an organization, that person, a person who is or desires to become the employer of that person, the organization or the Bureau may apply to the Court for a declaration as to the entitlement of that first-mentioned person under this section. (5A) Subject to sub-section (7), the Court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules or the organization concerned, make such order to give effect to its determination as it thinks fit. (6) The orders which the Court may make under the last preceding sub-section include an order requiring the organization concerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization. (7) Where an application is made to the Court under this Section - (a) if the application is made otherwise than by a person whose entitlement is in question - that person shall be given an opportunity of being heard by the Court; and (b) if the application is made otherwise than by an organization - the organization concerned shall be given an opportunity of being heard by the court." The section was introduced into the Act in 1952 and has since been amended on several occasions. It has to be construed in the statute in which it appears. Under that statute, since 1928, section 141 has given to a member a right to secure the performance and observance of rules by persons under a duty to do so. Prior to this amendment, expulsions for example, could be litigated before civil courts (Smith v. Amalgamated Society of Engineers 16 C.L.R. 537; Edgar v. Meade 23 C.L.R. 29). It is trite law that once a person is a member of an organiza-— tion he is entitled to remain a member until either he or the organization terminates his membership. Termination by the organization generally takes the form of an expulsion of the member for breach of a rule where specific provision is made for that or an expungement of the register in certain cases. Not all organizations provide for the latter. In each case " the action is taken by a committee of the organization or of one of its branches and such committees of course consist of individual members of the organization. Under s.141, before an order is made, the persons against whom it is sought must . be given an opportunity of being heard, and on such an appli- cation it is clear that it is not enough for the Court to find that it does not agree with a decision made by the executive. It can only intervene in limited cases such as where there is a denial of naturait justice or there has been no material at all before the body on which its decision could be based: . Australian Workers Union v. Bowen 72 C.L.R. 575; Egan v. Harradine 6 A.L.R. 507 Tf the argument is correct then in the case of any member whose membership 1s terminated, he could have recowse not only to s.141 but to s.144. Under s.144 there is no obligation on the Court to hear the persons whose decision is attacked and against whom an order is sought before it is made. True it is there may be an obligation to hear an organization but it 1s frequently found that a committee of, for example, a branch of an organization, might take a very different view from that of the organization and an obligation to hear the organization would not necessarily do justice to the persons against whom orders were sought. Again it would appear that under s.144 the question whether there has been compliance with the rules by the member is a matter for decision by the Court, a very different position from that existing when proceedings are brought under s.141. Moreover, if s.144 is really applicable in this type of case then it would appear that 1t is available only to persons not of general bad character. Counsel for the Bureau cited before me a judgment of the Australian Industrial Court in Lorimer v. A.W.U. vol. 30 I.1.B. 842. In that case the Court said: "Mr. Lorimer seeks a declaration under s.144(5). The entitlement referred to in that sub-section zs the entitlement 'under this section', firstly, in the appropriate case to be admitted as a member of an organization or, secondly, to remain a member so long as the applicant complies with the rules of the organization except in so far as this obliga- tion is affected by sub-section (2A). It appears that the section is not intended in the ordinary case to provide a method of seeking a declaration from the Court as to whether or not a member has complied with the rules of the organization. In our opinion the claimant is entitled under s.144(5) to an appropriate declaration if the Court finds that at the relevant times his usual occupation was that of an employee in the industry and he remained a person in the category of persons eligible for membership. The determination sought does not involve holding that the section extends generally to deciding whether a member has committed a breach of the rules, but only to decide whether by virtue of the provisions of s.144 the claimant is entitled to remain a member so long as he complies with the rules. We are satisfied that the claimant at all relevant times was entitled to remain a member of the Union." I have carefully considered this judgment but I find myself unable to follow it. It is true the Court then said that the section was not intended in the ordinary case to provide a method of seeking a declaration from the Court as to whether or not a member has complied with the rules of the organization but the court did not indicate what in its view was an ordinary case or what criteria in a case entitled an applicant to make an application under s.144. In my view s.144 does not confer upon all members of an organization a right to remain members so long as they comply with the rules. What it does 1s to give a dual right to those persons who are not of general bad character and who are eligible for membership in an organization under a constit- utional rule to firstly be admitted to the union and secondly to remain a member so long as they comply with the rules. Clearly such persons are not, until the order of the Court, members. This is a very limited right. Rules generally impose obligations on members in what might be termed both a positive and negative manner. So in this case there are, for example, positive obligations to pay contributions in advance and to notify the secretary of any change of address. Rules different in form such as r.9 which gives an executive 10. power to remove from the register members who, for example, owe certain contributions, also impose obligations on members with which they must comply. A person within the purview of s.144 is given by that section a right enforceable by applica- tion and declaration made thereon to remain a member in much more circumscribed circumstances than are members generally. Such a person must comply with all rules. In my view this is a dual right and is given to ensure that there 1s not a mere nominal compliance with an order for admittance to membership or in other words an admission through _ the front door while the back door is carefully left open to ensure an immediate exit. I think the right given by the section to remain a member has no application to persons who secure admission to a union by methods other than those provided in s.144. In other words, ' it has no application except to a person not of general bad character and eligible for membership of an organization who becomes a member by application under s.144. In my view, apart from the difficulties of proof to which I have referred, the Bureau cannot rely on it in these proceedings. I might \ add that apart from anything else it was common ground that Keogh had not paid contributions to the Union since the expunging of the register 1n October 1977. In other words, even if that expunging were bad, he has not complied with the rules and is not entitled even if the section applied to his case to an order. 11. I propose to deal firstly with the issue of eligibility. The relevant rule of the union provides coverage for persons "engaged in any clerical capacity". These are wide words but clearly not of indefinite width. They have been considered in a number of cases to which reference was made but I do not consider that this is an appropriate case in which to attempt any definition. The issue to which I direct my attention is whether at the time of the application Mr. Keogh was engaged in a clerical capacity. A difficulty arises in view of, on the one hand, great changes which have taken place in office administration and records and in view, on the other hand, of the growing tendency to elevate_the status of particular forms of employment by the use of new terms. So one finds that builders labourers become construction workers and what was once a clerical division of the Public Service becomes a clerical and administrative division and there is a growing and wide use of the term "officers" which often seems unrelated to changes in employment. The evidence shows that apart from what was termed the normal clerical staff, that is stenographers, secretaries, filing clerks and the like, Mr. Keogh's employer employed three persons in senior positions. They were one or at times two, industrial officers and one nursing officer. In addition, there was a full time branch secretary. Mr. Keogh was an industrial officer. Under the staff arrangements he spent his working time in the main in the office of the federation while the other industrial officer was concerned with problems of organizing members throughout the State. His work was performed without supervision. In his own words "you 12. simply do what is necessary to be done". His work consisted in dealing with problems concerning awards, long service leave and the like which might come to him either by way of telephone inquiry or by letter. He dealt with what may be termed the industrial aspects himself but matters involving professional considerations relating to nursing would be discussed with the nursing officer. Some part of his time would be spent in recording, for example, particulars of long service leave or particulars of specific inquiries but these were ancillary only to his main function. His salary was he agreed consid- erably above the normal clerical salary and he was the oldest serving member of the employed staff. In these circumstances I think that Mr. Keogh cannot be said to be employed in a clerical capacity. Obviously all persons employed in an office are not engaged in a clerical capacity and where an employee's functions are performed generally without supervision he is not in the subordinate capacity which ; seems part of the concept of engagement in a clerical capacity. Moreover when his duties cannot be performed without a fund of knowledge and learning of a professional or quasi-professional nature he is even more removed from engagement in a clerical capacity (Re A.W.U. Case 1971 N.S.W.A.R. 95 at 99; Appeal by : F.C.U. 1977 W.A. Industrial Gazette 565). In my view then, Mr. Keogh was not at the time of his application included in a category of persons eligible for membership of the union under its rules. 13. I turn next to the question whether Mr. Keogh was shown to be of general bad character. The onus of so establishing lies on the un1on (Owens v. A.B.L.F. 19 A.L.R. 569). Considerable discussion took place on the meaning of the phrase "of general bad character". In Cahill v. Sheet Metal Working, Agricultural Implement and Stovemaking Industrial Union of Australia 84 C.A.R. 22, the Commonwealth Court of Conciliation and Arbitration in considering the same phrase in s.83{a) of the Act said: "Tn this case the phrase appears in the Conciliation and Arbitration Act in relation to the settlement of industrial disputes and is there not for the protection of the applicant but for safeguarding the trade union and for the functions which it is created to perform and required by law to carry out. A trade union is a free association of men who surely ought to be allowed the fullest freedom within the law to choose the basis of their association and their associates so that a decision honestly made by its responsible Committee of Management about the character of an applicant for membership ought not I think to be lightly overruled. The Union is bound to consider the general reputation of the applicant, but I cannot see why its committee should ignore its special knowledge of an applicant because he has been able to live so as to escape acquiring a bad reputation, though it is easy to see why such an achievement ought to be of value to an accused person in a criminal case." This view 1s one which was favoured by this Court in Owens v. A.B.L.F. (supra), although the Court did not find it necessary to decide the question. This is a section in which particular rights are given to persons to secure admission to a union which is unwilling to have them as members. When the phrase is used in this context it is difficult to see why both the reputation and disposition of a person are not relevant. Reputation if it is one held of 14. the applicant by people is likely to affect the union by application of the old adage that birds of a feather. Equally the disposition of an applicant particularly in matters relating to unions and the conduct of union affairs is likely to affect the union in the conduct of its business. When the phrase is used in this context it seems to me that cases based on old concepts of criminal law or in defamation are of little real use. What is relevant then is both the reputation and the disposition of Mr. Keogh. Particulars were given of the matters on which it was proposed to rely and they are as follows: "The said Terence Charles Keogh was on 12 December, 1974 expelled from the Federated Miscellaneous Workers Union of Australia pursuant to a resolution of the federal executive of that union. That the said Terence Charles Keogh did during the months of September, October and November, 1976 or thereabouts attempt to improperly importune funds the property of the Federated Clerks Union of Australia and to use such funds for unauthorised purposes, in that he proposed to certain officers and employees of the said union that they claim on their expenses account moneys 1n excess of their entitlements. 1. That the said Keogh although a member of the Queensland Branch of the M.W.U., having joined on 2nd November, 1972, signed a New South Wales Branch application form under the name of Terence Charles on 7th November, 1973 whilst employed by British Paints Ltd., Gow Street, Bankstown, 2. That the said Keogh falsely obtained a ballot paper from the Australian Electoral Officer, Mr. R.F. Mallon, although not entitled to do so under the rules of the M.W.U. 3. That the said Keogh falsely represented himself as P. White and signed the Attendance Book at the New South Wales Branch Quarterly Meeting of the M.W.U. held on Tuesday, November 13, 1973 as Pat White. 15. 4. That the said Keogh falsely represented himself as Peter Board over the period of November, 1973 to February, 1974. 5. That the said Keogh was involved in malpractices in connection with elections for offices in the M.W.U. in 1974. 6. That the said Keogh has from time to time been involved in practices involving deception and/or disruption and/or intermeddling in connection with elections for offices in organizations or branches of organizations, of which he was not at material times a member, namely, elections in the Victorian Branch of the Federated Clerks' Union of Australia in 1976, and in the Victorian Branch of the Shop Distributive and Allied Employees Association in 1977." They really fall into two groups chronologically. The first relate to his activities in an election conducted by the Federated Miscellaneous Workers Union of Australia in the State of New South Wales. This occurred between November, 1973 and February, 1974. Prior to this, the evidence shows that Mr. Keogh had spent the years between 1969 and 1971 on army service in the course of which he rose to commissioned rank. On discharge from the army he commenced a course at Queensland University and while engaged in this course was enrolled as a member of the National Civic Council (N.c.c.). During some of his time at the University as a student he was paid by the N.C.c. In November, 1972 he secured employment for some weeks with employers in Queensland and during this time joined the Queensland branch of the Federated Miscellaneous Workers Union. Between May and August, 1973 he was employed as a cleaner by the Queensland State Government. Some at least of this employment seems to have been undertaken solely with a view to take part in activities of the Miscellaneous Workers Union, Queensland 16. Branch and it is to be noted that in a number of his applications for employment Mr. Keogh misstated his educational qualifications, setting them out as being of Intermediate Certificate standard only. Some time in November, 1973 according to Keogh's evidence, the N.c.c. organized a campaign in support of certain candidates referred to as the Better Deal Group in the elections in the Miscellaneous Workers Union. A number of persons including Keogh were sent by the N.c.c. to New South Wales to organize in this election. His airfares to and from New South Wales and a salary during the whole of the period was paid by the N.C.c. He stayed in New South Wales during the period of the election. Keogh's evidence was that this group engaged in a number of malpractices during the election. These included arranging for persons to be shown on the records of various employers as employed by them and to be members of the Miscellaneous Workers Union from whose wages deductions for union fees were purported to be made. This, on the evidence, occurred at a number of places. On one occasion he claimed that he received a large sum of cash from an officer of another union not concerned in any way with the Miscellaneous Workers Union which he took back to the N.c.c. office to be used in the campaign. Some of the activities of the group were subsequently the subject of proceedings before the Australian Industrial Court: Casey v. Shanahan 159 C.A.R. 1045 and were the subject of serious criticism. It wasnot shown that Keogh himself took part in the type of activity dealt with in this case but both Shanahan and another person who was dealt with at about the same time were both members of 17. the same group and were associates of Keogh during the campaign. Records of various businesses and firms were rigged to give people entitlement to vote. I have not set out the whole of the allegations made by Mr. Keogh about the activities of the group with which he was closely associated. In his own words he became more and more appalled as the procedure went along and he learned of the activities. So far as his own part was concerned, he obtained employment for a matter of two days with a paint company under a false name. He canvassed members of the Miscellaneous Workers Union, again assuming a false name and purporting to be a member of the New South Wales branch. He took part in election meetings, again assuming a false name. He attended a quarterly meeting of the Miscellaneous Workers Union at which some machinery associated with the ballot was dealt with. He gave a false name and a false place of employment. These he said were his own principal activities in the election but he agreed that he was closely associated with others in the Better Deal Group whose conduct appalled him. When the election was over, and it should perhaps be recorded that the Better Deal Group appears to have been defeated, Keogh returned to Brisbane. These are activities in a very important field of union work. Clean ballots, particularly in the sense of them being free from any sort of rigging or falsification or pressure from outside the union are matters of fundamental importance within a union and while active participation in activities such as these 18. would not necessarily make a man not of general bad character for all time, one would fairly look for some signs of change in belief and attitude. On his return to Brisbane, he secured employment through the offices of the N.c.c. with the Federated Furnishing Trade Society in Queensland. It should be recorded that in October, 1974 the Miscellaneous Workers Union conducted an inquiry into the ballot. Keogh was invited to attend and moneys were available to him to ensure that he was at no loss by way of fares or other expenses in doing so. He did not attend. In December, 1974 charges were laid against him under the rules of the Miscellaneous Workers Union and he was summoned to attend a meeting to answer the charges. Again he was assured of airplane tickets and of his expenses but he did not attend to defend himself. The charges on which he was expelled were: Failing to observe the Rules of the Union or any Branch or any of them. Giving false or misleading information to the Federal Council, Federal Executive or any State Council, Branch Executive, Sub-branch or Section Committee or to any meeting of the Branch, Sub-branch or Section or to any officer of the Union on a matter which is the concern of the Union. After having been reasonably requested to assist, failing to assist the Federal Council, Federal Executive, Sub-branch or Section Committee or any other lawful committee or body of the Union in any way in the performance of any of its functions. 19. These episodes make 1t difficult to accept that there had been any change in Keogh's attitude up to that point. I ave already set out in dealing with the second issue his employment with the Queensland branch. While so employed during 1976 he visited Melbourne at the request of the then branch secretary Mr. Forrester. He described the purpose of this visit in various ways as being one to ascertain whether irregularities were taking place or to deal with such irregularities but it is clear that it was an interference with the affairs and election of a branch of which he was not a member. Again in 1977 he journeyed to Victoria to join persons from other States in campaigning in an election within the Victorian branch of the Shop Assistants Union. It 1s difficult to suggest that this history shows anything but a predilection for meddling in the affairs of other bodies and in the one case at least, that of the Miscellaneous Workers Union, of taking part in deceit and being part of a team which resorted to ballot rigging on what appears to have been quite a considerable scale. Further matter material to Keogh's character appears from the part he played in elections held in the Queensland branch of the respondent union. These elections took place during the period ending somewhere in November, 1976. There was a bitter faction fight within the union. Keogh's evidence is that he and previous officers had been members of the N.C.Cc. up to about June, 1975 but that he and some others repudiated the philosophies and activities of the N.C.c. about 20. that time. Indeed his acitivities in the two elections in Victoria to which I have referred were on behalf of candidates who were opposed by the N.C.c. The material allegation is that during the Queensland branch elections in 1976 Keogh proposed to a number of other organizers that they should falsify their expenses claims and donate what payments were received to a campaign fund for the candidates supported by Keogh and the then secretary. Evidence was given by a number of witnesses who had been and were still organizers of the Queensland branch. Each was cross-examined but I was impressed by them and their demeanour. Some of them had campaigned for the unsuccessful team, some had not and one had been an organizer only for a matter of months. Various attacks were made on them by Mr. Keogh. In substance he put to at least the latter ones that his request had been merely that they donate the whole of their expense allowances to the campaign fund. This seems to me a highly improbable proposition. The amount of expenses paid to an organizer depended on the work done, the travelling involved and matters such as that and had Mr. Keogh made the proposal he suggests he did, the effect would have been that in many cases the less well paid or junior organizers who did more of the travelling would be paying larger amounts than the more senior organizers whose work would be much more confined to the offices. This seems to me quite an improbable proposition. I believe it was advanced after some witnesses had been cross-examined in an endeavour to explain the fact that the donation of expenses was discussed. 21. I am quite satisfied that Keogh endeavoured to persuade organizers to falsify their expense accounts in order to bolster the funds for the campaign of the team with which he was associated. This was done in the background of a faction fight but it seems to me to make it impossible for me to say that he has changed in disposition or that his reputation in union circles would have changed since his activities in New South Wales. Moreover, in assessing the position I must, I think, have regard to Keogh as a witness. In my view he is clearly a man of ability, but I was not at all impressed by his demeanour or his evidence. He showed on a number of occasions a willingness to lie and then when he saw the drift of the cross-examination, to attempt to alter his attitude. There were a number of examples of this. In speaking of his trip to take part in the Victorian branch elections he said when first asked about it: "T was sent down there by vote of our State council of the Clerks Union in Queensland". That was repeated and he then said he was initially directed by one official to go and added "but upon my return the branch council did endorse my activities and in fact the week that I spent there added a week to my annual leave". When he was pressed on this and asked the substance of his previous answers he insisted that he could not remember the substance of what he had said a few questions earlier. It subsequently appeared that the only endorsement which took place was an agreement by the branch council to pay him an additional weeks annual leave. Again 22. when cross-examined concerning affidavits which had been made by the other organizers he insisted that when Mr. Forrester became secretary he had changed the previous practice of employ- ing only persons of a particular religious faith and employed persons only having regard to ability. Not long afterwards, still dealing with organizers who had been appointed during Mr. Forrester's term of office, he said "Most of them would be virtually unemployable industrially in any other area as is the case with Mr. Taylor, the industrial officer who has been sacked from more industrial jobs than most people. If some of them lost their employment there they could not work in the industrial area anywhere else". Mr. Taylor gave evidence before me and had not in fact been sacked from any jobs. He had resigned from two positions and the circumstances of his resignations were explained. They do not reflect at all on Mr. Taylor and indeed Mr. Taylor was one of those appointed during the period when the witness had earlier suggested Mr. Forrester was employing people having regard to ability only. There were many other examples of him making positive assertions \ and then retreating from them and it could not have been some- thing induced by any strain of giving evidence because the same inconsistencies between statements made on different occasions arose when a comparison is made of allegations in his affidavit and the evidence he gave. He said, for example, in his affidavit that he performed the work set out 1n a job description, but in his oral evidence he said that the job description was quite irrelevant to his present work. He said in his affidavit that 23. he resigned as organizer "because I felt I had philosophical differences with the newly elected branch council". I am quite satisfied that he was dismissed from his position as organizer by the branch council. There are many other instances which I find 1t unnecessary to detail. I think it sufficient to say that Mr. Keogh was a witness whose evidence could not be accepted. I am satisfied that Keogh was shown to be a man of general bad character. I base this view on his activities in the New South Wales election of the Miscellaneous Workers Union and on the fact that he urged and counselled organizers of the Queensland branch of the respondent union to falsfify accounts and thereby steal money of the branch in order to support an election campaign. I have further taken into account that I am quite unable to say after a careful consideration of his evidence that I believe there has been any change in his attitudes to these activities and to the lengths he would be prepared to go in union activities. As I have indicated, on all these grounds I think the application should be dismissed. Before doing so, I should I think make one comment on the attitude adopted by the Bureau in this case. Its original application sought the order under s.144 and it took the view that the two issues arising were character and eligibility. However after it became clear that the question of general bad character was in issue, the Bureau appears to 24, have agreed with Keogh that it would conduct the case on the issue of eligibility but would not take a stand on the issue of character. Keogh in any event had been allowed to be heard pursuant to s.s.(7) but in my view the Bureau is in no different position from any other litigant and where it commences proceed- ings it must assume responsibility for conducting the case on all those issues. I think it was inappropriate for the case to be divided in this manner. The remaining question is that of costs. Application was made by counsel for the union for an order for costs and reliance was placed on s.197A. Under that section costs may be awarded only when the party who instituted the proceedings did so vexatiously or without reasonable cause. There is no question of the proceedings being vexatious. So far as the question whether they were instituted without reasonable cause, I think the issue of eligibility was clearly arguable and so far as that part of the proceeding is concerned, the proceeding cannot be said to have been instituted without reasonable cause. Looking to the institution of the proceedings, at that point the Bureau had no knowledge of the matters ultimately alleged against Mr. Keogh and while I think it should have made more detailed and greater inquiries than it did, it may well be that it would not have gleaned from him much valuable information. So far as those two issues are concerned then, I do not think the proceedings were instituted without reasonable cause. So far as the proceeding was based on the view of s.144 which I have rejected, the Bureau was entitled to have regard to the — 25. decision in Lorimer v. A.W.U. (supra) and having regard to that, it clearly was not unreasonable for it to institute the proceeding in the form in which it did. I find then that the proceedings were not instituted either vexatiously or without reasonable cause and I make no order for costs. -o 41s a tone conyz cf the "udjalcat herein of his Honour : SWweene y Associate Dated: {G+ > 7-9 S