RS et O'DONOGHUE v. AMALGAMATED SOCIETY OF CARPENTERS & JOINERS OF AUSTRALIA Industrial law - dismissal of elected organizer - whether elected organizer is an "officer" - applicability of s.133(1)(f) to elected organizer - compliance with rules providing for termination of office - natural justice - rules providing for dismissal and suspension of elected organizer from office - conflict with s.133(1)(£) - power under s.141(8A) to declare rule (or part) contravenes s.140(1) Conciliation and Arbitration Act, 1904 - s.133(1)(f), s.140(1)(a), s.140(6), s.141, s.141(8a) N.S.W. NO. 39 OF 1979 J.B. SWEENEY J. Sydney 13th December, 1979 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW _ SOUTH WALES DISTRICT REGISTRY ) NO. 39 OF 1979 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 140 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND THE AMALGAMATED SOCIETY OF CARPENTERS AND JOINERS OF AUSTRALIA Respondent ORDER JUDGE MAKING ORDER: J.B. SWEENEY J. DATE OF ORDER: 13 December, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The further hearing of the matter to be adjourned for a period of two months. 2. Liberty to apply on 48 hours notice to the other party and to the Court be reserved to the Applicant. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 40 of 1979 INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 141 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND VINCENT HAROLD GRIFFIN, JOHN HOURIGAN, FRANK JONES, NOEL REGINALD DOLLING, RAYMOND WILLIAM HARPER, PATRICK NEIL JONES AND WERNER GEUDER Respondents ORDER JUDGE MAKING ORDER: J.B. Sweeney J. DATE OF ORDER: 13 December, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The Respondents perform and observe the rules of the Amalgamated Society of Carpenters and Joiners of Australia by treating as null and void the decision of the branch committee of management dismissing the applicant from his position as organizer. 2. Pursuant to s.141(8A) the Court finds that part of r.22 of the rules of the New South Wales branch of the organization, namely the words "The State Management Committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" contravenes s.140(1). IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under section 140 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND THE AMALGAMATED SOCIETY OF CARPENTERS AND JOINERS OF AUSTRALIA Respondent (N.S.W. 39 of 1979) AND IN THE MATTER of an application under Section 141 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND VINCENT HAROLD GRIFFIN, JOHN HOURIGAN, FRANK JONES, NOEL REGINALD DOLLING, RAYMOND WILLIAM HARPER, PATRICK NEIL JONES AND WERNER GEUDER Respondents (N.S.W. 40 of 1979) 13th December, 1979 J.B. SWEENEY J. REASONS FOR JUDGMENT The applicant in these proceedings 18 Mr. Terrence James O'Donoghue,a member and formerly an organizer in The Amalgamated Society of Carpenters and Joiners of Australia ("the union") while the personal respondents are the members of the committee of management of the New South Wales branch of The Amalgamated Society of Carpenters and Joiners of Australia. The applicant has been a member for some years and first became an organizer in 1970. He was then elected to the post for a period of three years. At subsequent elections held in 1973 and 1976 he was elected to the same post as organizer on each occasion to hold office for a period of three years. The rules of the union define the officers of the branch in terms which do not include organizers but I have no doubt that the applicant was an officer within the meaning of the Conciliation and Arbitration Act, 1904 since he occupied a position existing irrespective of the occupant until a change was made in the number of organisers by the Branch. It is an office and is filled by election and so falls squarely within the definition. Section 133(1)(f) therefore applies to it. It is provided by that section that the rules of an organization shall not provide for the dismissal of a person from an office except in certain specified circumstances. The applicant was dismissed from his post by the branch Management committee on 20 June, 1979. The circumstances of the dismissal were as follows. At a meeting, probably in April, 1979 the committee met and after discussing the applicant's services they decided to write to the Federal Secretary asking that the Federal Secretary or the Federal Executive dismiss the applicant. The letter was not produced but this account of its details was given by the Branch Secretary in evidence. Shortly after 2 May, 1978 the Secretary received a reply from the Federal Executive in the following terms: Further to your correspondence in relation to dismissal of officials, this matter was fully discussed during the Annual Federal Conference held in Sydney. However, for the benefit of the Branch Committee of Management the following procedure to be taken is important: Reference is Branch Rule 14 (i) Any action shall be commenced by any member or officer in writing specifying the name of member charged and matter or matters charged and must be lodged with the Branch Secretary. (for example, he may be charged under Branch Rule 14 (iv) for dereliction of duty.) (i1) The next step is that upon the Branch Secretary receiving complaint, the Secretary shall forward to the member against whom the complaint is made at least fourteen days before the meeting of the Branch Committee of Management at which the complaint is to be dealt with, the matter or matters charged and notice of the date and time and place of meeting. The complainant and member shall be entitled to be present at this meeting and be heard. (iii) The Branch Secretary shall then forward in writing a letter to the complainant and the member against whom the complaint was made the decision of the Branch Committee of Management. {iv) Should the Branch Committee of Management find the member guilty of the charge or charges, they may suspend him from his position for a specified or unspecified period. (1.e. a specified period may be until the next triennial elections. ) Finally, as was debated at Federal conference, this is a matter that may only be initiated by a Member of the Branch, as it may be that the aggrieved member may appeal to the Federal Committee of Management of which your Branch Secretary and myself, for that matter, are members. At the May meeting of the committee this letter was further disucssed and Mr. Dolling, a member of the committee and one of the respondents then said he would lay charges against the applicant. Some time thereafter he laid charges in the following terms: Dereliction of duties under r.4 section (iv). Failure to obey Secretaries instructions. Failure to carry out duties assigned to him. Failure to fill out day sheet correctly. This charge was written out by Mr. Dolling in the presence of Mr. Jones the Branch Secretary and was then handed to him. A letter containing a copy of the charge was sent to the applicant on 31 May, 1978. It will be noted that there were no real particulars sufficient to enable the applicant to understand the case he had to meet and to prepare his answer and his own case. The charge is stated as dereliction of duties under r.14 section 4 apparently adopting the advice in the letter of 2 May. What may be intended as particulars are then set out as failure to obey Secretary's instructions, failure to carry out duties assigned to him, failure to fill out day sheet correctly but there is nothing to indicate dates or places or even the nature of the instructions not obeyed or the duties assigned and not carried out or the day sheets not filled out correctly. Evidence showed that the periods involved may have extended over years. The minutes of the meeting of the branch committee of management were tendered and so far as is relevant they set out: Moved Bro., Dolling seconded Bro., P. Jones suspension of standing orders to hear Bro., T. O'Donoghue's reply to the charges laid against him by Bro., N. Dolling namely Dereliction of duties under Rule 14 Section (iv) Failure to obey Secretary's instructions Failure to carry out duties assigned to him Failure to fill out day sheets correctly. carried .... Bro., O'Donoghue was called to the meeting, and charges were read out to him and discussed with him, after some discussion Bro., T. O'Donoghue denied all charges and said he was ill and under Doctors orders he had to take tablets, and then left the meeting when he closed the door he yelled out that he was innocent and not guilty of any charges. After further discussion between S.M.C. members it was moved by Bro. N. Dolling seconded Bro., P. Jones that Bro., T. O'Donoghue be dismissed from his position as a paid official (organiser) from the N.S.W. Branch of the A.S.C. & J, with appropriate notice given and dismissal to take place on the 26th June, 1979. Amendment moved by Bro. Harper that Bro., O'Donoghue be asked to resign, amendment lapsed for want of a seconder. The motion was put and carried ..... In addition, oral evidence was given by the applicant and by the Secretary of the happenings of the meeting. It is clear that when the meeting opened the Secretary proceeded to ask the applicant a series of questions which had been prepared in advance. They consisted of allegations against the applicant and in each case the applicant appears to have denied the allegation in the question. At an early point of the meeting the applicant, who was absent from work due to illness, had produced a letter from his medical adviser. He left the meeting claiming illness but denying that he was guilty of any charges. There then appears to have been some desultory discussion but no evidence was brought or witnesses called and finally a resolution for O'Donoghue's dismissal was carried. It seemed quite clear that the notice given O'Donoghue was insufficient in that it did not sufficiently inform him of the matters alleged so as to enable him to prepare his case, obtain witnesses etc. This is clearly illustrated by the allegation that he failed to fill in day sheets correctly. Having regard to the fact that he had been an organizer for over eight years and had filled in a day sheet for each day of his employment, that 18 5 per week over the period, it was clearly impossible for him to be in a position to deal with each day sheet. Similar considerations apply to the other charges. In addition to this, under r.14 the branch committee of management had no power to dismiss from office. It 18 clear then that Branch Rule 14 was not complied with by the branch committee of management in dismissing the applicant and indeed this did not appear to be disputed by the respondents. It was claimed on their behalf that the action taken against the applicant was an exercise of the power under Branch Rule 22. That rule provides that the branch meeting may on the recommendation of the committee of management determine whether any and what number of organizers shall be appointed and that any organizer so decided on shall be elected triennially by the members of the branch by secret ballot. It further provides "The State management committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" and further provides that in the event of an extraordinary vacancy occurring in the office of organizer of a branch it may be filled for the remainder of the term at the next meeting of the branch. The procedures followed by Mr. Dolling in laying the charge and by the secretary and committee of management are clearly more appropriate to action being taken under r.14 rather than r.22 and nowhere either in the record of the meeting or in any oral evidence was it suggested that the committee of management at any time considered r.22 or indeed any action other than action under r.14. I am quite satisfied that they purported to act and that they thought they had acted under r.14 only. True it is that they purported to dismiss the applicant but that I think was due to a misinterpretation of the Federal Secretary's letter of 2 May, 1979 and their powers under r.14. In all the circumstances, I regard the action taken under r.14 as being in denial of natural justice. If however I am wrong in the view I have taken and the committee did act under r.22 then I am of the view that having regard to the fact that the post of organizer was an office and that the applicant's status and livelihood were at stake that he under this rule would be entitled to proper notice of the proceedings and to be heard in his own defence. (See Ridge v. Baldwin (1963) 2 All E.R. 66.) I have already dealt with the notice given and in my opinion it was defective under either rule. I adopt, with respect, the well known passage from the speech of Lord Morris of Borth-y-Gest when his Lordship said: My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice, But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament. The common law has abundant riches; there may we find what Byles J., called "the justice of the common law" (Cooper v. Wandsworth Board of works). wiseman v. Borneman (1969) 3 All E.R. 278 Halsbury's Fourth Edition, Volume 1, Paragraph 75 sets out: Compliance with the rule requires that parties liable to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. All who are likely to be so affected must be notified; but there may be an express or implied dispensation from the normal duty to serve actual notice on each individual, and in the case of administrative proposals and procedures it is not uncommon for legislation to discriminate between a general duty to give public notice and a specific duty to serve personal notice on those who are particularly affected, and to define with precision the methods by which such notice may lawfully be given. The particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and to prepare their answer and their own cases. I think it clear that the notice under r.14 was defective and even clearer still that if it is to be regarded as notice under r.22, it is even more defective. The application under s.140 sought an order declaring that r.14 contravened s.s.(1) of s.140. In addition, when it was submitted that the branch committee of management acted under r.22 that rule was attacked as contravening s.140. In each case the contravention alleged was that the rule was contrary to a provision of the Act, namely s.133(1)(f£). That sub-section provides that a condition to be complied with by an organization includes a condition that the rules of the organization shall not provide for the dismissal from office of a person elected to an office within the association or organization unless he has been found guilty in accordance with the rules of the associations or organization, of misappropriation of the funds of the association or organization, a substantial breach of the rules of the association or organization or gross misbehaviour or gross neglect of duty or has ceased, according to the rules of the assoc1ration or organization, to be eligible to hold the office. I have already held that the post of organizer is an office within the meaning of the Act and it 1s quite clear that both r.14 and r.22 provide for action against an organizer on grounds other than those specified in the sub-section. In r.22 the action is described as terminating the period of office of any organizer at any time by one week's notice while in r.14 the action is described as suspension. In the case of r.22 then the conflict between the rule and the Act is obvious and complete. In the case of r.14 1t was argued that on the true interpretation of the rule a member may be suspended from 10. office for a period either specified or unspecified and that the period of suspension may equal the unexpired term of his office. This interpretation was brought about by viewing the words "suspension from office or membership may be for a period either specified or unspecified" appearing at the foot of sub-rule (d) as adding to the meaning of "suspended from office" as used in paragraph 14(a) and this seems consistent with the view expressed by the federal organization in the letter of 2 May, 1979. Suspension for the balance of a term of office seems to me virtually indistinguishable from dismissal. "Suspend" as defined in the Shorter Oxford English Dictionary 1s: to debar, usually for a time from the exercise of a function especially to deprive (temporarily) of one's office. In view of the reasons given earlier I am satisfied that r.22 offends against s.140(1). It 1s not attacked in an application under s.140 but since it has been raised as part of the defence and its validity then attacked by the applicant the Court must in my view rule upon it. It was objected that the Court could not act of its own motion in disallowing a rule. That this is the position 1s quite clear but 1t is appropriate for the Court to take action under s.141(8A). In considering Branch Rule 22 and the course the Court should take, I have had regard to the proceedings before me and in addition, to the written submissions made by counsel for the respondents to both applications and the solicitor for the applicant. After the hearing had been concluded the matter was re-listed on 6th November last, to afford to all parties ll. an opportunity of making submissions, particularly as to Branch Rule 22 and the appropriate course for the Court to take. The orders the Court makes are as follows in matter No. 40 of 1979: (1) That the Respondents perform and observe the rules of the Amalgamated Society of Carpenters and Joiners of Australia, by treating as null and void the decision of the branch committee of management dismissing the applicant from his position as organizer. (2) Pursuant to s.141(8A) the Court finds that part of r.22 of the rules of the New South Wales branch of the organization, namely the words "The State Management Committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" contravenes s.140(1). So far as matter No. 39 of 1979 1s concerned, I have reached the view that Branch Rule 14 does contravene s.140({1). I am not free from doubt as to whether portions of the rule are truly severable and I am reluctant to take steps which may mean that the branch committee of management had no power to act in cases of misconduct. I therefore think that that part of the rule, namely: (1) the words "suspend from office in 8.r.(a); and (2) the words "office or" in the second last paragraph appearing under s.r.(d) of r.14; and 12. (3) the words "during a period of suspension from office the suspended person shall not occupy his office and" contravene s.140(1) in that they are contrary to a provision of the Act. Pursuant to s.140(6) I propose to adjourn the proceedings for a period of two months for the purpose of giving the organization an opportunity to alter r.14 and to make any consequential alterations. This 1s on the understanding that no proceedings will be instituted against the applicant pursuant to that rule and accordingly I will reserve to the applicant the right to apply to the Court until this matter is finally disposed of. The order of the Court on this application is then: (1) That the further hearing of the matter be adjourned for a period of two months. (2) That laberty to apply on 48 hours notice to the other party and to the Court be reserved to the applicant. [ centify that this and the eleven pre.vding pares are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice T & Sweeney Associate pated: 13 Uecombtr 1979 fe oe CATCHWORDS Industrial law - dismissal of elected organizer - whether elected organizer is an "officer" - applicability of s.133(1)(f) to elected organizer - compliance with rules providing for termination of office - natural justice - rules providing for dismissal and suspension of elected organizer from office - conflict with s.133(1)(f£f) — power under s.141(8A) to declare rule (or part) contravenes s.140(1) conciliation and Arbitration Act, 1904 ~ s.133(1)(f£), s.140'1)(a), s.140(6), s.141, 8s.141(8A) O'DONOGHUE v. AMALGAMATED SOCIETY OF CARPENTERS & JOINERS OF AUSTRALTA N.S.W. No. 39 of 1979 O'DONOCHUE v. GRIFFIN & ORS. N.S.W. No. 40 of 1979 Coram: J.B. Sweeney J. sydney 13 December, 1979 Seale ten neta ee / O'DONOGHUE v. AMALGAMATED SOCIETY OF CARPENTERS & JOINERS OF AUSTRALIA : Industrial law - dismissal of elected organizer - whether elected organizer is an "officer" - applicability of s.133(1)(f) to elected organizer - compliance with rules providing for termination of office - natural justice - rules providing for dismissal and suspension of elected organizer from office - conflict with s.133(1)(f) - power under s.141(8aA) to declare rule (or part) contravenes s.140(1) Conciliation and Arbitration Act, 1904 ~- s.133(1)(f), s.140(i)(a), s.140(6), s.141, s.141(8A) N.S.W. NO. 39 OF 1979 J.B. SWEENEY J. Sydney 13th December, 1979 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. 39 OF 1979 ee ew INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 140 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND THE AMAIGAMATFD SOCIETY OF CARPENTERS AND JOINERS OF r ) AUSTRALIA Respondent ORDER JUDGE MAKING ORDER: J.B. SWEENEY J. DATE OF ORDER: 13 December, 1979 WHERE MADE: Sydney @ THE COURT ORDERS THAT: 1. The further hearing of the matter to be adjourned for a period of two months. 2. Liberty to apply on 48 hours notice to the other party and to the Court be reserved to the Applicant. ee re re | eee ee cone a ce ante see 2 nee ee ee ne et et he reels om IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. 40 of 1979 ) ) INDUSTRIAL DIVISION IN THE MATTFR of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 141 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND VINCENT HAROLD GRIFFIN, JOHN HOURIGAN, FRANK JONES, NOEL REGINALD DOLLING, RAYMOND WILLIAM HARPHR, PATRICK NEIL JONES AND WERNER _ GEUDER Respondents ORDER JUDGE MAKING ORDER: J.B. Sweeney J. DATE OF ORDER: 13 December, 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The Respondents perform and observe the rules of the Amalgamated Society of Carpenters and Joiners of Australia by treating as null and void the decision of the branch committee of management dismissing the applicant from his position as organizer. 2. Pursuant to s.141(8A) the Court finds that part of r.22 of the rules of the New South Wales branch of the organization, namely the words "The State Management committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" contravenes s.140(1). SORT ee me IN THE FEDERAL COURT OF AUSTRALIA NEW _SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 AND IN THE MATTER of an application under Section 140 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND THE AMALGAMATED SOCIETY OF CARPENTERS AND JOINIRS OF AUSTRALIA Respondent (N.S.W. 39 of 1979) AND IN THE MATTER of an application under Section 141 thereof BETWEEN TERRENCE JAMES O'DONOGHUE Claimant AND VINCENT HAROLD GRIFFIN, JOHN _HOURTGAN, FRANK JONES, NOEL REGINALD DOLLING, RAYIOND WILLTAM HARPER, PATRICK NIL JONES AND WERNER GEUDER Respondents (N.S.W. 40 of 1979) 13th December, 1979 J.B. SWEFNEY J. REASONS _ FOR JUDGMENT The applicant in these proceedings is Mr. Terrence James O'Donoghue,a member and formerly an organizer in The Amalgamated Society of Carpenters and Joiners of Australia ("the union") while the personal respondents are the members of the committee of management of the New South Wales branch of The Amalgamated == Be ee reenter NRE con tne Ame IN ree ae ear Society of Carpenters and Joiners of Australia. The applicant has been a member for some years and first became an organizer in 1970. He was then elected to the post for a period of three years. At subsequent elections held in 1973 and 1976 he was elected to the same post as organizer on each occasion to hold office for a period of three years. The rules of the union define the officers of the branch in terms which do not include organizers but I have no doubt that the applicant was an officer within the meaning of the Conciliation and Arbitration Act, 1904 since he occupied a position existing irrespective of the occupant until a change was made in the number of organisers by the Branch. It is an office and is filled by election and so falls squarely within the definition. Section 133(1)(f) therefore applies to it. It is provided by that section that the rules of an organization shall not provide for the dismissal of a person from an office except in certain specified circumstances. The applicant was dismissed from his post by the branch management committee on 20 June, 1979. The circumstances of 'the dismissal were as follows.' at a meeting, probably in April, 1979 the committee met and after discussing the applicant's services they decided to write to the Federal Secretary asking that the Federal Secretary or the Federal Executive dismiss the applicant. The letter was not produced but this account of its details was given by the Branch 11a taht Ca Aa A terete ad Secretary in evidence. Shortly after 2 May, 1978 the Secretary received a reply from the Federal Executive in the following terms: Further to your correspondence in relation to @Gismissal of officials, this matter was fully discussed during the Annual Federal Conference held in Sydney. However, for the benefit of the Branch Committee of Management the following procedure to be taken is important: Reference is Branch Rule 14 (i) Any action shall be commenced by any member or officer in writing specifying the name of member charged _ and matter or matters charged and must be lodged with the Branch Secretary. (for example, he may be charged under Branch Rule 14 (iv) for dereliction of duty.) (ii) The next step is that upon the Branch Secretary receiving complaint, the Secretary shall forward to the member against whom the complaint is made at least fourteen days before the meeting of the Branch Committee of Management at which the complaint is to be dealt with, the matter or matters charged and notice of the date and time and place of meeting. The complainant and member shall be entitled to be present at this meeting and be heard. (iii) The Branch Secretary shall then forward in writing a letter to the complainant and the member 7t + om me = against whom the complaint was made the decision of the Branch Committee of Management. (iv) Should the Branch Committee of Management find the member guilty of the charge or charges, they may suspend him from his position for a specified _or unspecified period. (1.e. a specified period may be until the next . triennial elections. ) Finally, as was debated at Federal Conference, this is a matter that may only be initiated by a Member of the Branch, as it may be that the aggrieved member may appeal to the Federal Committee of Management of which your Branch Secretary and myself, for that matter, are members. At the May meeting of the committee this letter was further disucssed and Mr. Dolling, a member of the committee and one of the respondents then said he would lay charges against the applicant. Some time thereafter he laid charges in the following terms: Dereliction of duties under r.4 section (iv). Failure to obey Secretaries instructions. Failure to carry out duties assigned to him. Failure to fill out day sheet correctly. This charge was written out by Mr. Dolling in the presence of Mr. Jones the Branch Secretary and was then handed to him. A letter containing a copy of the charge was sent to the applicant on 31 May, 1978. It will be noted that there were no real particulars sufficient to enable the applicant to understand the case he had to meet and to prepare his answer and his own case. The charge 1s stated as dereliction of duties under r.14 section 4 apparently adopting the advice in the letter of 2 May. What may be intended as particulars are then set out as failure to obey Secretary's instructions, failure to carry out duties assigned to him, failure to fill out day sheet correctly but there 1s nothing atea - " , ' . ' wat to indicate dates or places or even the nature of the instructions not obeyed or the duties assigned and not carried out or the day sheets not filled out correctly. Evidence showed that the periods involved may have extended over years. The minutes of 'the meeting of the branch committee 'of management were tendered and so far as is relevant they set out: Moved Bro., Dolling seconded Bro., P. Jones suspension of standing orders to hear Bro., T. O'Donoghue's reply to the charges laid against him by Bro., N. Dolling namely Dereliction of duties under Rule 14 Section (iv) Failure to obey Secretary's instructions Failure to carry out duties assigned to him Failure to fill out day sheets correctly. Carried .... Bro., O'Donoghue was called to the meeting, and charges were read out to him and discussed with him, after some discussion Bro., T. O'Donoghue denied all charges and said he was 111 and under Doctors orders he had to take tablets, and then left the meeting when he closed the door he yelled out that he was innocent and not guilty of any charges. After further discussion between S.M.C. members it was moved by Bro. N. Dolling seconded Bro., P. Jones that Bro., T. O'Donoghue be dismissed from his position as a paid official (organiser) from the N.S.W. Branch of the A.S.c. & J, with appropriate notice given and dismissal to take place on the 26th June, 1979, Amendment moved by Bro. Harper that Bro., O'Donoghue be asked to resign, amendment lapsed for want of a seconder. The motion was put and carried ..... In addition, oral evidence was given by the applicant and by the Secretary of the happenings of the meeting. It is clear that when the meeting opened the Secretary proceeded to ask the applicant a series of questions which had been prepared in advance. They consisted of allegations against the applicant and in each case the applicant appears to have denied the . allegation in the question. at an early point of the'meeting * the applicant, who was absent from work due to illness, had produced a letter from his medical adviser. He left the meeting claiming illness but denying that he was guilty of any charges. There then appears to have been some desultory discussion but, no evidence was brought or witnesses called and finally a resolution for O'Donoghue's dismissal was carried. It seemed quite ipo yee fk iets' Sanaa in atecan tiie at em tahiel LL Lea aie teeta! tte ote emt mee ne em ae & ete ee ee en tema he Rs ene ne Ne A ee ie i kee tt Ome eee bee clear that the notice given O'Donoghue was insufficient in that it did not sufficiently inform him of the matters alleged so:as to enable him to prepare his case, obtain witnesses etc. This is clearly illustrated by the allegation that he failed to fill in day sheets correctly. Having regard to the fact that he had been an organizer for over eight years and had filled in a day sheet for each day of his employment, that is 5 per week over the period, it was clearly impossible for him to be in a position to deal with each day sheet. Similar considerations apply to the other charges. In addition to this, under r.14 the branch committee of management had no power to dismiss from office. It is clear then that Branch Rule 14 was not complied with by the branch committee of management in dismissing the applicant and indeed this did not appear to be disputed by the respondents. It was claimed on their behalf that the action taken against the applicant was an exercise of the power under Branch Rule 22. That rule provides that the branch meeting may on the recommendation of the committee of management determine whether any and what , number of organizers shall be appointed and that any organizer so decided on shall be elected triennially by the members of the branch by secret ballot. It further provides "The State management committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" and further provides that in the event of an extraordinary vacancy occurring in the office of organizer of a branch it may be filled wire oe for the remainder of the term at the next meeting of the branch. The procedures followed by Mr. Dolling in laying the charge and by the secretary and committee of management are clearly more appropriate to action being taken under r.14 rather than r.22 and nowhere either in the record of the meeting or in any oral evidence was it suggested that the committee of management at any time considered r.22 or indeed any action other than action under r.14. I am quite satisfied that they purported to act and that they thought they had acted under r.14 only. True it is that they purported to dismiss the applicant but that I think was due to a misinterpretation of the Federal Secretary's letter of 2 May, 1979 and their powers under r.14. In all the circumstances, I regard the action taken under r.14 as being in denial of natural justice. If however I am wrong in the view I have taken and the committee did act under r.22 then I am of the view that having regard to the fact that the post of organizer was an office and that the applicant's status and livelihood were at stake that he under this rule would be entitled to proper notice of the Te hm OE a ate eat od Nae ta! ' proceedings and to be heard in his own defence. (See Ridge v. Baldwin (1963) 2 All E.R. 66.) I have already dealt with the notice given and in my opinion it was defective under either rule. I adopt, with respect, the well known passage from the speech of Lord Morris of Borth-y-Gest when his Lordship said: My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merély an acceptable but 1s an essential part of the philosophy of the law. We often speak of the rules ef natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many avthorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament. The common law has abundant riches; there may we find what Byles J., called "the justice of the common law" (Cooper v. Wandsworth Board of Works). Wiseman v. Borneman (1969) 3 All E.R. 278 Halsbury's Fourth Edition, volume 1, Paragraph 75 sets out; Compliance with the rule requires that parties liable to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. All who are likely to be so affected must be notified; but there may be an express or implied Gispensation from the normal duty to serve actual notice on each individual, and in the case of administrative proposals and procedures it is not uncommon for legislation to discriminate between a general duty to give public notice and a specific duty to serve personal notice on those who are particularly affected, and to define with precisian the methods by which such notice may lawfully + be given. The particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and to prepare their answer and their own cascs. I think it clear that the notice under 1.14 was defective and even clearer still that if it is to be regarded as notice under r.22, it is even more defective. The application under s.140 sought an order declaring that r.14 contravened s.s.(1) of s.140. In addition, when it was submitted that the branch committee of management acted under r.22 that rule was attacked as contravening s.140. In each case the contravention alleged was that the rule was contrary to a provision of the Act, namely s.133(1)(£). That sub-section provides that a condition to be complied with by an organization includes a condition that the rules of the organization shall not provide for the dismissal from office of a person elected to an office within the association or organization unless he has been found guilty in accordance with the rules of the associations or organization, of misappropriation of the funds of the association or organization, a substantial breach of the rules of the association or organization or gross misbehaviour or gross neglect of duty or has ceased, according to the rules of the association or organization, to be eligible to hold the office. I have already held that the post of organizer is an office within the meaning of the Act and it is quite clear that both r.14 and r.22 provide for action against an organizer ae : set ' + > Pa ote cr . , wera wok ' ' red - ie sire on grounds other than those specified in the sub-section. In r.22 the action is described as terminating the period of office of any organizer at any time by one week's notice while in r.14 the action is described as suspension. In the case of "r.22 then the conflict between the rule'and the Act is obvious and complete. In the case of r.14 it was argued that on the true interpretation of the rule a member may be suspended from De eed ie ete) ee ee an elt ete teat 10. office for a period either specified or unspecified and that the period of suspension may equal the unexpired term of his office. This interpretation was brought about by viewing the words "suspension from office or membership may be for a period either specified or unspecified" appearing at the foot of sub-rule (d) as adding to the meaning of "suspended from office" as used in paragraph 14(a) and this seems consistent with the view expressed by the federal organization in the letter of 2 May, 1979. Suspension for the balance of a term of office seems to me virtually aindistinguishable from dismissal. "Suspend" as defined in the Shorter Oxford English Dictionary is: to debar, usually for a time from the exercise of a function especially to deprive (temporarily) of one's office, In view of the reasons given earlier I am satisfied that y.22 offends against s.140(1). It is not attacked in an application under s.140 but since it has been raised as part of the defence and its validity then attacked by the applicant the Court must in my view rule upon it. It was objected that the Court could not act of its own motion in disallowing a vee hore a faa "Eule! 'that this is the position 1s quite clear put it is appropriate for the Court to take action under s.141(8A). In considering Branch Rule 22 and the course the Court should take, I have had regard to the proceedings before me and in addition, to the written submissions made by counsel for the respondents to both applications and the solicitor for the applicant. After the hearing had been concluded the matter was re-listed on 6th November last, to afford to all parties te a ne ny ble ahem on vse on a il. an opportunity of making submissions, particularly as to Branch Rule 22 and the appropriate course for the Court to take. The orders the Court makes are as follows in matter No. 40 of 1979: (1) That the Respondents perform and observe the rules of the Amalgamated Society of Carpenters and Joiners of Australia, by treating as null and void the decision of the branch committee of management dismissing the applicant from his position as organizer. (2) Pursuant to s.141(8A) the Court finds that part of r.22 of the rules of the New South Wales branch of the organization, namely the words "The State Management Committee may terminate the period of office of any organizer at any time by one weeks notice should the said committee deem it necessary or desirable in the interests of the society so to do" contravenes s.140(1). So far as matter No. 39 of 1979 is concerned, I have reached the view that Branch Rule 14 does contravene s.140(1). I am not tee " 2A ~., free, from doubt as to whether portions of the rule are truly severable and I am reluctant to take steps which may mean that the branch committee of management had no power to act in cases of misconduct. I therefore think that that part of the rule, namely; + {1) the words "suspend from office' in s.r.(a)}; and (2) the words "office or" in the second last paragraph appearing under s.r.(d) of r.14; and 12. (3) the words "during a period of suspension from office the suspended person shall not occupy his office and" contravene s.140(1) in that they are contrary to a provision of the Act. Pursuant to s.140(6) I propose to adjourn the proceedings for a period of two months for the purpose of giving the organization an opportunity to alter r.14 and to make any consequential alterations. This is on the understanding that no proceedings will be instituted against the applicant pursuant to that rule and accordingly I will reserve to the applicant the right to apply to the Court until this matter is finally disposed of. The order of the Court on this application is then: (1) That the further hearing of the matter be adjourned for a period of two months. (2) That liberty to apply on 48 hours notice to the other party and to the Court be reserved to the applicant. i a a ar een Vat ve 2 trons Vain I certity that this and the eleven preceding pares are a true copy of the Reas os for Judzment herein of his Honour Mr. Justice T & Sweerey toy /N ui , , ¥ " : Associate ! pated: 1% Ncemlur 19479 Menge a