r Cy (20114 IN THE FEDERAL COURT OF AUSTRALIA No.V.23 of 1979 j NEW SOUTH WALES DISTRICT REGISTRY ) No. 19 of 1979 ) ) No.v.24 of 1979 INDUSTRIAL DIVISTON 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, ULICK COLIN BIGNELL, HAROLD SHOOTER, ROYCE LAWRENCE CUMMINS, K. TYLER and G. WATERS Claimants AND: G.CRAWFORD, G.L. SMITH, R.FATRWEATHEF R. HEVEY, T. BOURKE, R. MASTERSON and S. MUTTON and PLUMBERS AND GASFITTERS EMPLOYEES UNION OF AUSTRALIA Respondents AND IN THE MATTER of an Application under Section 141 of the said Act BETWEEN: GEORGE ROBERT CRAWFORD Claimant AND: R.A. COOK J.S. ARDAY, BRIAN J. PALMER, C.L.H. HASTWELL, J. WORRALL, P.J. MOODY, N.W. CONNOLLY, D. HICKEY BRUCE J. PALMER and B.O'REILLY Respondents (V. No.23 of 1979) AND IN THE MATTER of an Applacation under Section 171C of the Act BETWEEN: PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA, G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY | T. BOURKE and S. MUTTON Applicants AND: ROBERT ARTHUR COOK Respondent Date: 7 November 1979 PHTLLIP EVATT J. REASOLUS FCE. GUDGMENT 2. I propose to deliver an oral judgment in the present interim application. I would have preferred more time to compose complete reasons for judgment. Perhaps the lack of eloquence of some of the phraseology will be apparent but I have thought it proper to give judgment as soon as possible and to continue the hearing of the substantive matters in the hope that evidence and submissions will be finalised before the end of the four week period that has now been set aside therefor. Presently before the Court are three matters, namely No.19 of 1979, V.23 and V.24 of 1979. Each matter concerns the Plumbers and Gasfitters Employees' Union of Australia (the organ- ization), an organization registered under the Conciliation and Arbitration Act 1904 and in particular the Sydney Branch of the organization and certain officials of that branch. Pursuant to an order of the Court made on 4 September last, the three matters are being heard together. All matters have been listed before the Court on previous occasions for directions and for the hearing of certain other interlocutory applications. The actual hearing of the substantive claims commenced on 4 September 1979 and thereafter on 5,6,7,12,13 and 14 September on which latter date all matters were stood over part-heard to 22 October. The Court had then indicated that the week commencing 22 October and three weeks commencing 5 November had been allocated for the hearing of the three matters. On 10 and 13 August last the Court heard an application by Messrs Bignell and Shooter, two of the then claimants in matter No.19 of 1979, seeking interlocutory orders pursuant to s.141(2) of the Act that, pending the hearing of the matters, the respondents in matter No.19 of 1979 perform and observe the rules of the organization by treating as null and void the resolution of the Federal Executive of the organization dated 1 and 2 May 1979 purporting to expel five officials of the Sydney Branch from the organization and dismissing them from their respective offices in the Branch and that the respondents take no step or action pursuant to the said resolution; 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 thear respective offices in the Sydney Branch of the organization. The Court, on 13 August last, refused the said application for such interim orders indicating it would publish its reasons at a later date. Such reasons were published on _./3s SDE PATO EE et aR co eres ear 2 oe ar re a a aac ae, oineaiednabaamaata ¢ 3. 14 September 1979. The history of the matters before the Court and of certain facts and surrounding circumstances are set out in such reasons for judgment. There is presently a further application before the Court dated 11 October 1979 wherein the claimant Mr Bignell in matter No.19 of 1979 seeks similar interim orders pursuant to s.141(2 as those earlier sought on 10 and 13 August last. Such further application was made returnable before the Court on 22 October. Prior to 22 October those representing the claimants in No.19 of 1979 requested that the matters not proceed on 22 October or on any date during that week in order to meet the convenience of Counsel representing the claimants. The respondents in matter No.19 of 1979 agreed that the matters should not proceed during that week and, consequently, the hearing of all matters was listed for 5 November together with the second application for such interim orders. On 5 and 6 November submissions were made by Counsel for and against the granting of such interim orders. 'The facts and surrounding circumstances set out in the reasons for judgment given on 14 September last in the prior application for interim orders are relevant to the present application, but such are not set out herein. Since the hearing of the first application for interim orders the remaining three ofic1rals purportedly dismissed from their respective offices on 1 and 2 May 1979 were added as claimants in matter No.19 of 1979. An affidavit sworn by the claimant Mr Bignell on 11 October 1979 was filed in support of the present application. Further, an affidavit by the respondent George Crawford, the General Secretary of the organization, sworn 2 November last was filed. Mr Crawford was called for cross-examination on his affidavit. ; Since the date of the earlier application it would appear that in the journal of the organization, published in August 1979 and circulated to the members of the organization, there are articles setting out various facts and circumstances dealing with the matters in dispute. ~-/4.. in a tre By oe re cree eigenen ne pn meet et pene eters sesaanaaae Leemunadne han entestemete ieleemanbenteddamtaay amenenamaentnds oenentemenetaaeaeedeeaaemamemeeimeaenetiiattel erat 4, It is clear the Federal Executive purportedly acting under rule 35(14) of the rules of the organization have employed temporary organisers to organize in the Sydney branch area. An article in the journal, under the name of the General Secretary, Mr Crawford, sets out the circumstances of the dismissal of the five officials of the said branch, and refers to the question of the collection of members' contributions and suggests that the members of the Sydney branch continue to pay their contributions direct to the temporary organisers referred to, or by remitting amounts of contributions to a postal address in Melbourne, such address being that of the federal office of the organization. In addition, the General Secretary has caused to be forwarded to the Sydney branch members a circular setting out such circumstances and facts. Further, there is evidence that the said temporary organisers have been attending at job disputes within the Sydney branch area and, at least on one occasion, for such an organiser to purport to appear on behalf of the Sydney Branch before the Federal Industrial Commission. ; Further, the federal officers have caused to be opened in Sydney an office which has been called in the circular and on receipts issued "the office of the Sydney branch" of the organization. Mr Crawford in his evidence stated the circumstances of how it came about that such office was opened. It would appear that, pursuant to rule 37, he as General Secretary together with a chartered accountant attended at the registered office of the Sydney Branch of the organization 1n Sussex Street for the purposes of having made available to the accountant, the books of account of the Sydney Branch for audit in accordance with that rule. When he attended at that office he spoke with Mr Cook, one of the claimants in matter No.19 of 1979 who 1s the chairman of both the Sydney Branch of the organization and of the State registered union. He was informed by Mr Cook that the office in Sussex Street which is shown as the registered office of the Sydney branch of the organization, in the records of the Industrial Registrar was situated in a building owned by the Trades and Labour Council of New South Wales and was in fact leased by that Council to the registered state union and not to the Sydney Branch of the Federal organization. Consequently, Mr Crawford was refused access to that office by Mr Cook. Mr Crawford has sworn that on other suksequent occasions he has been refused such access. 5. It was because of these circumstances that an office was opened in Sydney by the Federal officers for use by the said temporary organisers. Letterheads on stationery and receipts show the address of this new office as being that of the Sydney branch of the organization. _In addition meetings of Sydney branch members have been convened by either the federal officers or by the organisers appointed under rule 35(14). Mr Crawford has sworn that such meetings have not been called on behalf of the Sydney branch, but have been called in order that such members may meet together so that they can be informed of current circumstances and hold discussions thereon. Further, it is clear that the members of the Committee of Management of the Sydney branch other than the five officials purportedly dismissed from office can form a quorum for such Committee of Management Meetings and that such meetings can be validly called within the provisions of the existing rules of the organization. Additionally the said five dismissed officials are in fact employed full time officials of the purported state registered union, and are in fact suffering no financial loss. The principles to be applied in such applications as the present application have been referred to in my reasons for judgment handed down on 14 September last. I am satisfied in No.1i9 of 1979 that the claimants/have shown that they have a fair chance of success in their claim within the meaning of those words as used by Bowen, C.J. in Parrish's Case (16 A.L.R. 181 at 186). The defencesraised have indicated that there are complex questions both of fact and law to be determined before a final @Getermination can be made in the matter. This then raises the question of the balance of convenience as that term is used in cases such as Parrish's Case. - I am of the view that the facts and circumstances which have been presented to the Court since the earlier application for interim orders are such as not to persuade me that my earlrer view in this regard should be varied. 6. Accordingly, the said application is refused.