CATCHWORDS Industrial law - Rules of organization - power to dismiss an elected officer of Union - Rule which fails to comply with Cwth.Conciliation and Arbitration Act 1904 s.133(1) (£) - elected officer found guilty by domestic tribunal of offences the conduct involved in which was characterised by the tribunal as gross neglect of duty, although the officer was not charged with having been guilty of conduct of that character - whether appeal from decision of domestic tribunal precluded recourse to the Court under s.140 of the Act - distinction between decision void for lack of power and || decision affected by failure to accord natural justice. MERVYN ALFRED HAWKINS v. F. K. WILLIS & ORS. N.S.W. No. 34 of 1981 Smithers, Evatt & Deane JJ. 22 October 1981 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION ORDERS JUDGES MAKING ORDERS: Smithers, DATE OF ORDER: WHERE MADE: Sydney and Arbitration Act, ) ) ) NSW No.34 of 1981 ) ) IN THE MATTER of the Conciliation 1904. AND IN THE MATTER of an Application under Section 141 of the said Act. BETWEEN: MERVYN ALFRED HAWKINS Claimant AND: F.K. WILLIS AND OTHERS Respondents Evatt and Deane JJ. 22 October 1981 THE COURT ORDERS THAT the questions asked in the Case Stated be answered as follows: QUESTION 1: Whether the Claimant is precluded as a matter of law from commencing or, alternatively, from proceeding with his application for relief pursuant to Section 141 of the Conciliation & Arbitration Act, 1904 by virtue of his appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(vii) of the organization, which: appeal was made on 25th June 1981. ANSWER: No. QUESTION 2: Whether the Court has a discretion:- (a) To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act by reason of his election to appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(vii); or (b) (c) ANSWER: To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act while his said appeal to the Federal Conference pursuant to Rule 56(vi1) is pending; or To stay the present proceedings until the Claimant's appeal to the Federal Conference pursuant to Rule 56(vi2) has been heard and determined by the Federal Conference. It 1S unnecessary to answer this question. QUESTION 3: If the Court has such a discretion, whether 1t should so refrain fy from hearing or refuse to hear the Claimant's application or otherwise stay the present proceedings. ANSWER: It 1S unnecessary to answer this question. QUESTION 4: Whether the penalty purportedly imposed upon the Claimant by the Federal Executive of the organisation (namely, that he be removed from each and every office held by him under the rules of the organisation) is invalid, null, void and of no effect in that (a) ANSWER: Yes (c) " no charge was laid against the Claimant in the terms of, or alternatively, to the effect of Rule 56(v)(b); no charge was laid against the Claimant in the termms of, or alternatively, to the effect of Section 133(1){(f£) of the Act". if the rules of the organisation are such as to permit, on their true interpretation, the imposition of the said penalty without requiring charges of the character specified in paragraphs (a) and (b) of this question, then those rules are invalid because: (1) they contravene s.140(1) (a) of the Act and, in particular, are contrary to or fail to make a provision required by s.133(1)(f) of the Act; and/or (ii) they contravene s.140(1)(c) of the Act and, in particular contravene the rules of natural justice. ANSWER: In so far as the rules, on their proper construction purport to permit the imposition of the penalty of dismissal upon an elected officer who has been found guilty of an offence under the rules without such an officer being charged with and found guilty of conduct constituting misappropriation of the funds of the organization or a substantial breach of the rules of the organization or gross misbehaviour or gross neglect of duty as for an offence in accordance with the rules of the organization, those rules are invalid because they contravene s.140(1) (a) of the Act in that they are contrary to a provision of the Act. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSW No. 34 of 1981 INDUSTRIAL DIVISION IN THE MATTER of the Conciliation & Arbitration Act, 1904. AND IN THE MATTER of an application under Section 141 of the said Act. Between: MERVYN ALFRED HAWKINS Applicant And: F.K. WILLIS AND OTHERS Respondents Coram: Smithers, Evatt & Deane JJ. 22 October 1981 REASONS FOR JUDGMENT SMITHERS and EVATT JJ.: The applicant sought relief pursuant to s.141 of the Conciliation & Arbitration Act 1904 (the Act) in these proceedings commenced by Order Nisi dated 2 July 1981 and which came on for directions on 9 July and 7 August 1981. By the Order Nisi the applicant sought orders that the respondents observe the rules of the Australian Postal and Telecommunications Union (the organization) by treating the purported decision of the Federal Executive dated 22 June 1981 removing the applicant from each office held by him in the Organization as null and void and by recognizing that the _applicant continues to hold such offices including the office of Secretary of the New South Wales Branch of the ® organization. The decision of the Federal Executive of the organization was made in the purported imposition of a penalty pursuant to r.56(v)(b) of the organization in respect of a finding that the applicant had been guilty of certain offences charged against him pursuant to the provisions of 1.56(i) of the organization. On 12 May 1981 the applicant had been charged with having committed the offences created by parts (a)(b)(£)(g)(h) and (j) of r.56(1) of the organization. After hearing such charges the Federal Executive resolved, "That having considered the evidence produced in relation to charges brought by Mr. J. Wilson against Mr. M. A. Hawkins and having made certain findings in determination of the particular allegations of Mr. J. Wilson, this Federal Executive in accordance with Rule 56(x)(o) finds M. A. Hawkins guilty of:- (a) Failing to observe any of the Rules of the union or of any Branch, namely Rule 59 and (b) Knowingly failing to comply with any resolution of Conference, the Federal Executive or State Executive namely Federal Executive Resolution contained in Councillor Memorandum 79/45 State Executive Resolutions 8.28 of 11.11.79 $.17 of 17. 1.80 $.36 of 2. 3.80 $.27 of 11.11.79 $.10 of 17. 1.80 $.26 of 11.11.79 S. 5 of 24.10.79 S. 9 of 3.12.79 S.17 of 10. 1.80 S. 1 of 15. 1.80 S.20 of 10. 1.80 $.28 of 17. 1.80 S.I8 of 2. 3.80 S. 1 of 15. 1.80 S. 5 of 15. 1.80 $.10 of 15. 1.80 $.22 of 2. 3.80 SS. 6 of 15. 4.80 SS. 8 of 15. 4.80 SS.10 of 15. 4.80 $8.11 of 15. 4.80 $8.12 of 15. 4.80 $8.14 of 15. 4.80 SS.17 of 15. 4.80 S. 7 of 13. 8.80 $.19 of 2. 3.80 S.1l of 21. 4.80 SS. 4 of 5. 5.80 S.21 of 6. 5.80 S. 3 of 8.10.80 and having considered the question of penalty pursuant to Rule 56(x)(0) and Rule 56(v) determines that in relation to each of the offences of which he has been found guilty Mr. M. A. Hawkins has committed a substantial breach of the Rules of the union and has been guilty of gross neglect of duty and in accordance with Rule 56 is hereby removed from each and every office held by him under the Rules." "terms:- (i) Rule 56, so far as material, is in the following "56. Offences and Penalties Any member of .the Union may charge any other member with: (a) (b) (c) (a) (e) (f£) (g) (h) (i) Failing to observe any of the Rules of the Union or of any Branch; Knowingly failing to comply with any resolution of Conference, the Federal Executive or State Executive; Committing any fraudulent act or unlawful act in relation to the funds or property of the Union, or in relation to any election held under its Rules; Knowingly giving false or misleading unformation to the Conference, Federal Executive or State Executive or to any meeting held under the Rules of the Union or to any officer of the Union on any matter affecting the interests of the Union or its members; Wrongfully holding himself out as occupying any office or position in the Union or any Branch thereof, or as being entitled to represent the Union or a Branch in any capacity; Obstructing or unreasonably failing to assist any officer in the course of his duties; After having been reasonably requested to assist, failing to assist Conference, the Federal Executive, any State Executive or other lawful committee or body of the Union in any way in the performance of any of its functions; Failing to report to the State Executive or Federal Executive a member who he believes has been guilty of a breach of the Rules; Behaving in a drunken, disorderly or offensive manner at any meeting held under (11) (iii) (iv) (v) the Rules of the Union or in the office of the union or of any Branch; (3) Aiding or encouraging any member in any offence under the Rules. Any charge shall be made in writing and shall be made to the General Secretary-Treasurer or Branch Secretary-Treasurer. Such officer may, if he thinks fit, and shall, if directed by the Federal Executive or (in the case of the Branch Secretary-Treasurer) by the State Executive, summon the member charged before one of those bodies. The summons shall be in writing and shall state the time and place of the hearing, the name of the person laying the charge, and the substance of the charge. The person charged shall be given reasonable "notice of the hearing and his fares to and from the place of the hearing shall be paid. He shall, on written reguest, be supplied with such further particulars as may be necessary to indicate the precise matters with which he is charged. The Federal Executive and the State Executive shall have power to hear and determine charges under this Rule. At the appointed time and place (or at such time and place to which the meeting is adjourned or postponed and of which the member charged is notified), the charge may be investigated, and the hearing may proceed in the absence of the member charged, unless a satisfactory explanation of his absence has been received. At the hearing, the member charged must be given a reasonable opportunity to defend himself, call any witnesses upon whose evidence he may rely, and, 1£ he wishes, tender a written submission, If the Federal Executive or State Executive finds the member guilty of the charge, 1t May: (a) Fine him a sum not exceeding $20; (b) If he holds office or a position requiring performance of a duty under these Rules remove him from that office or position provided that a person who is the holder of an office as defined by the Conciliation and (v1) (vil) Arbitration Act shall not be removed from that office unless he has been found guilty in accordance with these Rules of misappropriation of the funds of the union or a substantial breach of the Rules of the union, or gross misbehaviour or gross neglect of duty or has ceased according to the Rules of the union to be eligible to hold the office; (c) cee (d) eee (e) Impose no penalty. Any member .on whom a penalty has been imposed by a State Executive under this Rule may * appeal to the Federal Executive, which may confirm, vary or annul the penalty. Notice of Appeal shall be given in writing to the General Secretary-Treasurer within twenty-one days from the date of the member being notified of the State Executive decision and shall set forth in full all matter which the appellant desires to be considered. The Federal Executive shall decide the appeal at 1ts next meeting after the appeal 1s made and the appellant shall have the right to attend the meeting and state his case on the appeal. Where the Federal Executive confirms or varies the punishment, the member concerned may appeal to Conference. He shall forward notice in writing to the General Secretary- Treasurer within twenty-one days from the date of being notified of the decision of the Federal Executive and shall furnish full particulars of the grounds of his appeal to Conference. The decision of Conference shall be final and conclusive. Where the charge has been heard in the first instance by the Federal Executive, the member on whom a penalty has been imposed may appeal direct to Conference, which shall finally determine the matter. The notice of appeal in such case shall be in writing and given to the General Secretary-Treasurer within twenty-one days from the date of notification of the decision of the Federal Executive. The same conditions shall apply to the contents of the notice of appeal and to procedure at the hearing of the appeal as in the case of appeals from decisions of State (viii) (1x) (x) Executives to the Federal Executive. Application of any penalty imposed under this Rule shall be withheld whilst the member 18 exercising the right to appeal provided by the Rule. For all investigations, enquiries or appeals provided for by these Rules and in particular by this Rule, including an appeal to Conference as mentioned in sub-paragraphs (v1) and (vii) of this Rule and in sub-rule (c) of Rule 7, the following procedure shall be followed: Inform the member charged that a charge has (a) , been laid against him under the Rules (quote Rule) by a member (naming the member) and that a Rule Book is available for him if he requires it. Read the Charge. (b) Ask whether member charged pleads guilty or not guilty. (c) Ask person laying charge to state case. {d) Give member charged and then members of tribunal opportunity to question person laying charge. (e) Ask person making charge to call witnesses, 1f any, or other evidence. (£) Hear evidence of witnesses. (h) (1) (J) (k) (1) Give member charged and then members of tribunal opportunity to question each witness. Ask member charged to answer case. Give person laying charge and then members of tribunal opportunity to question member charged. Ask member charged for witnesses, if any, or other evidence. Hear evidence of each witness. Give opportunity to person laying charge and then members of tribunal to question witnesses. (m) Give person laying charge and then member charged opportunity to address members of the tribunal on the whole case. (n) Ask member charged and person laying charge to withdraw while the matter is discussed by the members of the tribunal. Inform them, if possible, how long it 1s expected before the decision will be given, e.g., telling them - 0 either to wait or that the decision will be notified in writing. (0) Discuss evidence and decide whether guilty or not. If guilty, decide on penalty, if any. On 26 June 1981 the applicant lodged an appeal to Federal Conference against the decision of the Federal Executive pursuant to r.56(vii). Such appeal has not yet been heard. At the directions hearing before Evatt J. it was contended by the respondents that by reason of the appeal the applicant was precluded, as a matter of law from commencing proceedings for relief pursuant to s.14]1 of the the Act and that in any event the Court, in the exercise of its discretion should refrain from hearing the application for relief or at least stay the proceedings until after the hearing of the applicant's appeal to Federal Conference. On the other hand the applicant contended that the rules of the organization were such as to permit the dismissal from office of an elected officer otherwise than after charges had been made and determined against him of conduct of the nature specified in s.133(1)(f£) of the Act. Accordingly, so 1t was said, the rules were in conflict with that section, failed to make a _provision required thereby, and thus contravened s.140(1)(a) of the Act. The applicant contended also that even if r.56(v)(b) were a valid rule it required, upon. 1ts proper construction, that the penalty of dismissal should be imposed in respect of an offence created by r.56{1) only after a charge that the officer accused had committed conduct of the nature specified in s.133(1)(f£) had been formally made against him by a member and praceeded with and determined as though it were an offence created in r.56(1). The respondent contended that r.56(v)(b) did not create offences but was designed to enable the Federal Executive to make a determination that the conduct involved in any offence that was proved had the quality of being a substantial breach of a rule or gross neglect of duty in an exercise ancillary to the imposition of the appropriate penalty for an offence charged under r.56(i). Having regard to the nature of these contentions Evatt J. stated to this Court pursuant to s.25(6) of the Federal Court of Australia Act 1976 a case in the following terms:- "CASE STATED 1. Whether the Claimant 1s precluded as a matter of law from commencing or, alternatively, from proceeding with his application for relief pursuant to Section 141 of the Conciliation & Arbitration Act, 1904 by virtue of his appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(v11) of the organization, which appeal was made on 25th June 10. 1981. 2. Whether the Court has a discretion:-— (a) To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act by reason of his election to appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(vi1i); or (b) To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act while his said appeal to the Federal Conference pursuant to Rule 56(vii) 1s pending; or (c) To stay the present proceedings until the Claimant's appeal to the Federal Conference pursuant to Rule 56(vii) has been heard and determined by the Federal Conference. 3. If the Court has such a discretion, whether it should so refrain from hearing or refuse to hear the Claimant's application or otherwise stay the present proceedings. 4. Whether the penalty purportedly imposed upon the Claimant by the Federal Executive of the organisation (namely, that he be removed from each and every office held by him under the rules of the organisation) is invalid, null, void and of no effect in that (a)? no charge was laid against the Claimant in the terms of, or alternatively, to the effect of Rule 56(v)(b); (b) no charge was laid against the Claimant in the terms of, or alternatively, to the effect of Section 133(1)(f) of the Act; (c) if the rules of the organisation are such as to permit, on their true interpretation, the amposition of the said penalty without requiring charges of the character specified 1n paragraphs (a) and (b) of this question, then those rules are invalid because: 11. (i) they contravene s.140(1)(a) of the Act and, 1n particular, are contrary to or fail to make a provision required by $.133(1)(f£) of the Act; and/or (ii) they contravene s.140(1)(c) of the Act and, 1n particular, contravene the rules of natural justice." It is convenient to deal first with the questions asked in paras. 4(a),{b) and (c) of the case stated. The answers depend on the construction of s.133(1)(f) of the Act. That section provides that in addition to the conditions referred to in sub-section (2) of s.132 the conditions to be complied with by organizations shall include 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 organization unless he has been found guilty in accordance with the rules of the organization, of misappropriation of the funds of the organization, a substantial breach of the rules of the organization or gross misbehaviour or gross neglect of duty or has ceased, according to the rules of the organization to be eligible to hold the office. If it be said of a person that he has been found guilty pursuant to the rules of an organization of misappropriation of the funds of the organization or of a substantial breach of the rules of the organization or of gross misbehaviour or of gross neglect of duty, it would ordinarily be understood; (a} that the organization had rules which provide that conduct of the kinds specified constituted 12. an offence, that charges might be made against those alleged _to have committed that offence and heard and determined by a designated tribunal with power to inflict some sanction, and (b) that the person in question had been charged with such an offence and that the charge having been heard by the relevant tribunal the person in question had been found guilty thereof. Accordingly, construing the terms of s.133(1)(f£) of the Act in their ordinary and natural meaning the condition of registration of an organization that its rules shall not provide for the dismissal of an elected person "unless he has been found guilty in accordance with the rules of the organization of misappropriation of funds of the organization, a substantial breach of the rules of the organization or gross misbehaviour or gross neglect of duty", the effect is that rules of an organization which provide for dismissal from office of a person elected thereto where the commission of conduct of the specified nature is an offence under the rules and that an officer being charged therewith is found guilty after a hearing and determination of the charge by a relevant tribunal, are rules which satisfy the condition, but rules which provide for dismissal of such an officer who has not been so found guilty are rules which do not satisfy the condition, Section 133(1)(f) 18 a provision designed to protect elected officers from dismissal unless they have been guilty 13. of serious misconduct. It is appropriate that 1t be construed _to give the measure of protection provided by the section construed according to the ordinary meaning of its terms. Accordingly, where the only rule of an organization relating to the dismissal of an officer for breach of the rules of the organization provides for dismissal of an elected officer who has not been found guilty of conduct of the specified nature after being charged therewith and tried and found guilty thereof in accordance with appropriate rules, the rules of the organization fail to comply with the condition imposed by the statute. Ne1lther in the terms of any of the offences alleged nor the particulars thereunder supplied to the applicant was there any intimation that the conduct involved in the commission of the offence was of such a nature as to constitute a substantial breach of the rules or gross neglect of duty. The hearing of the charges occupied two days but the applicant absented himself from the hearing from some time on the morning of the first day. The applicant was at no time formally charged with conduct constituting a substantial breach of the rules or of gross neglect of duty. It is said however, that 1t may be eStablished at the hearing of the Order Nisi that the applicant knew of the terms of r.56(v)(b) and would have been aware that 1f he were found guilty of any of the offences with which he was charged the Federal Executive might proceed to consider whether the conduct of the 14. applicant in the commission of the relevant offence or offences was of such a nature as to constitute a substantial breach of the rules or gross neglect of duty, and that 1f 1t were so found i1t might dismiss the applicant from office pursuant to r.56(v)(b). The Federal Executive did in fact adopt this course and as indicated above did make such a : finding and did dismiss the applicant from office. We do not thrnk that r.56(v)(b) purports to create offences in respect of which charges might be made and determined according to the procedures relating to offences created in r.56(i). We think the respondent's submission 1S correct, that r.56(v)(b) purports to permit the Executive to enter upon an enquiry as to whether the conduct found by it to be involved in an offence under r.56(1) and which it has found to be proved, had the quality of, for instance, a substantial breach of rules or gross neglect of duty. Also the rule purports to permit the enquiry to be pursued according to a procedure decided upon by the Executive itself, but not involving the making of any new charge against the officer, and as an exercise ancillary to the assessment of the penalty which it might impose for the offence under r.56(i) of which it has already found the officer guilty. It would require clear words to create punishable offences. In r.56(v)(b) not only is there no express provision creating offences in the relevant terms, but the 15. whole enquiry as to the quality of the conduct in question _arises in a proviso which is operative only after a charge under r.56(i) has been heard and determined against the person charged. Also the enquiry is to be instituted in a context relevant exclusively to the penalty available for punishment of that proved offence. Under r.56(v)(b) dismissal 1s an authorised penalty for an offence created by r.56(1). It is only when a person found guilty of such an offence is an elected officer that the proviso in r.56(v)(b) speaks and when 1t speaks 1t speaks as a modification of the opening provision of that rule. In the context in which they appear in the proviso the words "found guilty in accordance with these rules" do not carry the implication that the finding of guilt referred to is a finding arrived at on determination of a specific charge of conduct constituting for example, a substantial breach of the rules or gross neglect of duty. The words "in accordance with these rules" certainly support the expression that "found guilty" in r.56(v)(b) refers to a finding on a specific charge of conduct of the nature specified in the proviso and dealt with as such under the rules. But the context is too strong for this suggestion to prevail. The only offences in contemplation in r.56(v)(b) are those created by r.56(1). The proviso contemplates characterization of the conduct involved therein by the tribunal which has already decided that the conduct constituted an offence created by r.56(i) which has 16. been proved. It is to be noted that in this construction of r.56(v)(b) the significance attached to the expression "found "guilty in accordance with these rules" differs from that accorded to the corresponding expression in the construction of s.133(1)(f) of the Act. This is because the proviso to r.56(v)(b) 1S but a proviso controlled by its context and pufpose, whereas the terms of the condition of registration of an organization introduced by s.133(1)(f) are free standing and not subject to any context which would tend to deprive the words of every implication arising from their ordinary and natural meaning. The proviso was no doubt inserted in the rules with the intention of complying with s.133(1)(f) of the Act. But the question 1s, did the draughtsman misconstrue s.133(1)(£)? Although there 1S much to be said for the contrary view, we feel unable to avoid the conclusion that the operation contemplated by r.56(v)(b) is one which 1s to be performed in relation to a "conviction" for an offence under r.56(i), namely, on a charge referred to in the opening words of r.56(v), and is thus an operation directed only to characterization for the purpose of assessing the availability of the penalty of dismissal. In the light of the foregoing 1t 1S our view that r.56(v)(b) purports to provide for the dismissal of an elected officer in circumstances that the only offence with which he has been charged and of which he has been found guilty 1s an offence of which the commission of conduct of the nature 17. specified in s.133(1)(f£) of the Act is not an element. True it is that dismissal pursuant to that rule is stated to be conditional upon the convicted officer also being found guilty according to the rules, of conduct of a specified nature. The only offence in contemplation of r.56(v)(b) 1S an . offence created by r.56(i). Although conduct of the specified nature might support a finding of guilt of certain of such offences it is not an element of any of such offences. The offence might well be committed by conduct much less serious. When the officer has been found guilty of an offence under r.56(1) with which he was charged, and "found guilty" of conduct of the nature specified in the proviso to r.56(v)(b) and dismissed, the dismissal 1s by way of penalty for the offence created by r.56(i). When so dismissed he cannot be said to have been found guilty in accordance with the rules, within the meaning of s.133(1)(f) of the Act, of conduct of the specified nature. It follows that r.56(v)(b) 18 an direct conflict with the condition which applies to the registration of the organization. A question may arise in relation to the situation occurring on a charge made under r.56(1) where, for instance, an elected officer is charged with an unlawful act in relation to the funds of the union and the particulars delivered therein allege that the only conduct relied upon was theft of union funds and there is a finding of guilt on that charge. ee 18. The opening words of r.56(v)(b) would not contravene the provisions of s.133(1)(f) of the Act so far as they applied to "a finding of guilt, of, misappropriation of union funds made on a charge of misappropriation of such funds. To steal union funds 18 to misappropriate them. It might well be argued that the finding of guilt in such a case was a finding of guilt of - misappropriation of funds within the meaning of s.133(1)(£) of the Act. If so, dismissal would be an available penalty. But no problem of this nature arises in connection with the charges of which the applicant was found guilty. The contention that r.56(v)(b) construed as a provision ancillary to the imposition of penalties imposed in accordance with an organization's rules for any offence created by those rules, does not conflict with the condition of registration imposed by s.133(1)(f) of the Act, does not succeed because it restS upon an erroneous view of s.133(1)(f£). That section does not prescribe conditions upon which the penalty of dismissal may be imposed for offences generally. It designates and limits the kind of conduct in respect of which, 1f£ an offence according to the rules of an organization, an elected officer, being found guilty thereof, may be dismissed. It is concerned not to qualify penalties provided for various offences by elected officers but to identify the kinds of offences in respect of which dismissal of such officers may be a permissible penalty pursuant to the rules of a registered organization. There 1s no provision in 19. the Act that the rules shall include a rule in the terms of s.133(1)(f£). That section lays Gown a condition of a prohibitory nature. It says what rules may not contain. It forbids rules of an organization to contain a rule providing for dismissal of an elected officer other than for conduct specified in s.133(1)(£) with which the officer has been 7 charged and found guilty 1n accordance with rules applicable to the hearing and determination of such a charge. Rule 56(v) (b) therefore conflicts with the terms of the statutory condition. , The result is that to the extent of the conflict it 1s contrary to a provision of the Act. It 1S a consequence of this that, to the extent of the conflict, it is invalid by force of s.140(1)(a) of the Act. The rule is in conflict with the statutory condition in that it permits dismissal of an elected officer, albeit after a determination that his conduct had the quality, of, for example, a substantial breach of the rules or of gross neglect of duty, for an offence of which it 1S not an element that the conduct in question should be of such a quality. As a result it is clear that the Federal Executive had no authority and was not competent to impose upon the applicant the penalty of dismissal from office. Its purported dismissal of the applicant from office was conduct contrary to the provisions of the valid rules of the organization. It follows that questions 4(a) and (b) should each be answered in the affirmative. Question 4(c) should be 20. answered as follows - In so far as the rules, on their proper _construction purport to permit the imposition of the penalty of dismissal upon an elected officer who has been found guilty of an offence under the rules without such an officer being charged with and found guilty of conduct constituting Misappropriation of the funds of the organization or a substantial breach of the rules of the organization or gross misbehaviour or gross neglect of duty in accordance with the rules of the organization, those rules are invalid because they contravene s.140(1)(a) of the Act in that they are contrary to a provision of the Act. It remains to consider the effect of the step taken by the applicant to appeal to Federal Conference against his dismissal from office. It 1S said that once the applicant appealed the operation of the resolution of the Federal Executive that he be dismissed from office was suspended, that his occupancy of the office was restored and that a duty arose in the Federal Conference to hear and determine the appeal. It 18 pointed out that this is a situation existing by reason of the operation of valid rules of the organization, that there 1S no suggestion that the respondents do not recognize this situation, and that there is no scope for an order based on the notion that they are not observing or will not observe the rules of the organization. The rules, recognizing the possibility of error on the part of a tribunal, have provided a suitable procedure for appeal under which the applicant 21. suffers no loss of office or official authority and will suffer no such loss unless the Federal Conference determines the Matter against him. All this 1s provided for by r.56(v1), (vil), (vi1li) and (x)(a) - (0). In these circumstances it 1s urged by the respondents that the applicant is precluded from proceeding to seek relief by way of an order under s.141 of thé Act. But having regard to the lack of competence in the Federal Executive to impose the penalty of dismissal of the applicant from office the question arises whether the steps taken to appeal operate in any way relevant to the exercise of the jurisdiction of the Court in relation to the relief sought in the Order Nis1. If, as the respondents argue, r.56(v)(b) permits dismissal if its terms, according to the construction submitted by the respondents are observed, then they say, and say correctly, that the applicant's real complaint would rest on some allegation that he was not accorded natural justice. But as the rule cannot be construed in this way and r.56(v)(b) is invalid insofar as it purports to confer power on the Federal Executive to dismiss the applicant then the resolution of the Federal Executive purporting to dismiss the applicant 1s a nullity. It just cannot have any effect at all. And the appeal tribunal would itself have no authority to dismiss the applicant for the offences of which he was found guilty or to confirm the dismissal by the Federal Executive. There 1s of course a distinction between decisions affected by a failure 22. to accord natural justice, which as Lord Wilberforce said in Calvin v. Carr [1979] 2 All E.R. 440 at p.449, are void, but have some effect or existence in law until so declared by a competent body or court, and decisions made entirely without power. The latter are inevitably null and void in the most absolute sense from the moment the body in question purported to make them. That, 1t seems to us is the position in this case. It appears to us therefore, that the opinion in Annamunthodo v. Oilfields Workers' Trade Union [1961] A.C. 945 1S much in.point. In that case the Court found that the appellant had been expelled as for an offence under a union r.(11(7)) with which he had not been charged or found guilty. It appeared also that the annual conference to which the appellant had unsuccessfully appealed had itself no power to use that rule. See the comment of Lord Wilberforce in Calvin v. Carr (supra) at p. 449. In Annamunthodo's Case 1t was held that there was no power in the tribunal to expel the applicant, that that defect rendered the decision invalid and that 1t was not cured by the decision of Annual Conference on the appeal. It was held that the steps taken to appeal from the decision to the Annual Conference and the decision of Annual Conference did not operate to prevent recourse by the appellant to the Court to obtain the appropriate relief, namely a declaration that his expulsion was invalid. It was suggested in argument that Annamunthodo's Case was in conflict with the decision in 23. Australian Workers' Union v. Bowen (1948) 77 C.L.R. 601. But this is not so. In the, latter case the decision appealed against was challenged only as a decision tainted by a failure to extend natural justice. In Annamunthodo's Case the decision was one made without power. In this case the appropriate relief is that sought in the Order Nisi. _7In our opinion the steps taken by the applicant 'to appeal do not operate to exclude the jurisdiction of the Court under s.141 of the Act. Having regard to the foregoing the answer to question one of the case stated is, "No". Having regard to the answers to question one and the various parts of question four no ground exists for refusing or delaying the exercise of the jurisdiction of the Court on the ground that the applicant lodged notice of appeal as postulated in questions two and three. It was conceded by counsel for the respondents that if question (4)(a) was answered in the affirmative then the applicant must succeed. Accordingly answers to questions two and three are unnecessary. In conclusion therefore question one of the case stated, namely, 24. "1. Whether the Claimant is precluded as a matter of law from commencing or, alternatively, from proceeding with his application for relief pursuant to Section 141 of the Conciliation & Arbitration Act, 1904 by virtue of his appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(vi1) of the organization, which appeal was made on 25th June 1981." should be answered "No". The various parts of question two, namely, "2. Whether the Court has a discretion:- (a) To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act by reason of his election to appeal from the decision of the Federal Executive to the Federal Conference pursuant to Rule 56(vil); or (b) To refrain from hearing or refusing to hear the Claimant's claim for relief pursuant to Section 141 of the Act while his said appeal to the Federal Conference pursuant to Rule 56(vii) 1s pending; or {c) To stay the present proceedings until the Claimant's appeal to the Federal Conference pursuant to Rule 56(vii) has > been heard and determined by the Federal Conference." should be not answered. Question three, namely "3. If the Court has such a discretion, whether zt should so refrain from hearing or refuse to hear the Claimant's application or otherwise stay the present proceedings." should be not answered. 25. The parts (a) and (b) of question four, namely, "4, Whether the penalty purportedly imposed upon the Claimant by the Federal Executive of the organisation (namely, that he be removed from each and every office held by him under the rules of the organisation) 1S invalid, null, void and of no effect in that (a) no charge was laid against the Claimant in the terms of, or alternatively, to the effect of Rule 56(v)(b); (b) no charge was laid against the Claimant : in the terms of, or alternatively, to the effect of Section 133(1)(f) of the Act;" should be answered "Yes", and part (c), namely, "(c) if the rules of the organisation are such aS to permit, on their true interpretation, the imposition of the said penalty without requiring charges of the character specified in paragraphs (a) and (b) of this question, then those rules are invalid because: (1) they contravene s.140(1)(a) of the Act and, in particular, are contrary to or fail to make a provision required by s.133(1)(£) of the Act; and/or (11) they contravene s.140(1){c) of the Act and, in particular contravene the rules of natural justice." should be answered as follows:- In so far as the rules, on their proper construction purport to permit the imposition of a 26. the penalty of dismissal upon an elected officer who has been found guilty of an offence under the rules without such an officer being charged with and found guilty of conduct constituting MiSappropriation of the funds of the organization or a substantial breach of the rules of the organization or gross misbehaviour or gross neglect of duty as for an offence in accordance with the rules of the organization, those rules are invalid because they contravene s.140(1)(a) of the Act in that they are contrary to a provision of the act. ry I certify that this and the 295 | precedisz pores 6,2 a true copy of the | Reasoes tor aca . werein or bas ifone ir | Mr. Juctscue Srmthenrs ACPravete Associate Dated: §-(9-§ 1 pone eee ee 7 | Icertify that this andthe 25 preceding pages are a true copy of the Reasons for Judyement cate of his Honour | Mr Justice °.Q, € vat Kecdey, Meng Dated: 22-10-§| IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSW NO. 34 of 1981 INDUSTRIAL DIVISION et ee ee CASE STATED PURSUANT TO S.25(6) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 BETWEEN: MERVYN ALFRED HAWKINS Applicant AND: F.K. WILLIS, J. FLINT, D.A.G. GEISLER, G. SLATER R.F. ARNDT, J.R. JAMES, M.R. ANTHONY D.B. BOWLER, R.J. BRISKEY, J. KANAN, T.N. LANCASTER and R.R. ROE Respondents CORAM: Smithers, Evatt and Deane JJ. 22 OCTOBER, 1981. REASONS FOR JUDGMENT DEANE J: This is a Case Stated by Evatt J. in proceedings in which Mr. Mervyn Alfred Hawkins ("the claimant") attacks the validity of his purported removal from the office of ~ Secretary of the N.S.W. Branch of the Australian Postal and _Telecommunications Union ("the organization"). The organization is an organization of employees registered, as such, under the provisions of the Conciliation and Arbitration Act, 1904 ("the Act"). The twelve respondents are the members of the Federal Executive of the organization. Rule 56(v)(b) of the Rules of the organization provides that a member who is the holder of an office as defined by the Act shall not be removed from that office "unless he has béen found guilty in accordance with these Rules of misappropriation of the funds of the union or a substantial breach of the Rules of the union, or gross misbehaviour or gross neglect of duty or has ceased according to the Rules of the union to be eligible to hold the office". It is common ground that the office of N.S.W. Branch Secretary is an office as defined by the Act. On 22 June, 1981, the Federal Executive of the organization found the claimant guilty of some of a large number of specific charges which had been laid against him by another member of the organization. The charges brought against the claimant were that he had: "(i) failed to observe certain rules of the Union; (ii) knowingly failed to comply with certain resolutions of the Federal Executive and State Executive; pad (iii) obstructed and unreasonably failed to assist certain officers in the course of their duties; (iv) after having been reasonably requested to assist, failed to assist the State Executive of the New South Wales Branch in the performance of its functions; (v) failed to report to the State Executive a member whom you believed had been guilty of a breach or breaches of the rules of the Union; (vi) aided and encouraged members and certain officers in offences under the rules of the Union". The charges of which the claimant was found guilty were of failing to observe Rule 59 of the Rules of the organization and of knowingly failing to comply with one identified resolution of the Federal Executive and thirty identified resolutions of the State Executive. The resolution of the Federal Executive finding the claimant guilty of these charges was as follows: "That having considered the evidence produced in relation to charges brought by Mr. J. Wilson against Mr. M.A. Hawkins and having made certain findings in determination of the particular allegations of Mr. J. Wilson, this Federal Executive in accordance with Rule 56(x)(o) finds Mr. A. Hawkins guilty of:- (a) Failing to observe any of the Rules of the union or of any branch, namely Rule 59 and (b) Knowingly failing to comply with any resolution of Conference, the Federal Executive or State Executive namely we Federal Executive Resolution contained in Councillor Memorandum 79/45 State Executive Resolutions S.28 of 11.11.79 S.17 of 17. 1.80 $.36 of 2. 3.80 S.27 of 11.11.79 S.10 of 17. 1.80 S.26 of 11.11.79 S. 5 of 24.10.79 S. 9 of 3.12.79 S.17 of 10. 1.80 S. 1 of 15. 1.80 $.20 of 10. 1.80 S.18 of 2. 3.80 S.-1 of 15. 1.80 Ss. 5 of 15. 1.80 6.10 of 15. 1.80 S.22 of 2. 3.80 SS.6 of 15. 4.80 SS.8 of 15. 4.80 SS.10 of 15. 4.80 SS.11 of 15. 4.80 SS.12 of 15. 4.80 SS.14 of 15. 4.80 SS.17 of 15. 4.80 S. 7 of 13. 8.80 S.19 of 2. 3.80 S.11 of 21. 4.80 SS.4 of 5. 5.80 S.21 of 6. 5.80 S.3 of 8.10.80 and having considered the question of penalty pursuant to Rule 56(x)(o) and Rule 56(v) determines that in relation to each of the offences of which he has been found guilty Mr. M.A. Hawkins has committed a substantial breach of the Rules of the union and has been guilty of gross neglect of duty and in accordance with Rule 56 is hereby removed from each and every office held by him under the Rules". The primary question raised for the consideration of this Court is that raz1sed by Question 4(a) of the Case Stated. In essence, that question is whether, in the "sr circumstances, the claimant could properly be said, for the purposes of Rule 56(v)(b) of the Rules, to have been found guilty in accordance with the Rules of "a substantial breach of the Rules" and of "gross neglect of duty" notwithstanding the fact that he had never been specifically charged with either of those offences. If he had not, the action of the Federal Executive in purporting to dismiss him was ultra vires and void. The answer to the question depends upon the construction, in their context, of the provisions of Rule 56(v)(b). Section 133(1)(f) of the Act requires that the rules of an organization registered under the Act - "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 association 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". It is plain that the provisions of Rule 56(v)(b) were adopted by the organization for the purpose of ensuring that the Rules complied with the requirements of s.133(1)(f) of the Act. The words "unless he has been found guilty in accordance with these Rules of ... a substantial breach of the Rules of the union ... or gross neglect of duty" in Rule 56(v)(b) would, prima facie, be expected to have the same meaning as the corresponding words in s.133(1)(f). I turn first to a consideration of the meaning to be given to them in s.133(1)(£). In the view I take, the reference, in s.133(1)(f), to a person being "found guilty in accordance with the rules" of an organization, of one of the specified offences is a reference to a primary or substantive finding of guilt of the relevant offence. If a member of an organization is charged with a particular offence of which he is found guilty in accordance with the rules of the organization, it cannot, in my view, properly be said that, by reason of that finding, he has been found guilty, in accordance with the rules, of one or more of the offences specified in s.133(1)(£) unless the charged offence of which he has been found guilty either corresponds with, or necessarily involves, that offence or those offences. Thus, for example, a finding that a member had stolen $100 of an organization's funds would amount to a finding that the member was guilty of "misappropriation of the funds of the ... organization". On the other hand, if a finding of guilt of a particular offence with which a member has been charged is merely consistent with the possibility that he has committed one of the offences specified in s.133(1)(f), it cannot properly be said that the finding of guilt of the offence with which he was charged also amounts to a finding of guilt of that specified offence. In this regard, the mere fact that the body making a finding of guilt of the charged offence states, when determining penalty, that the member was guilty of one or more specified offences with which he had never been charged does not mean that he has, within the meaning of the words as used in s.133(1)(f), also been "found guilty in accordance with the rules" of that or those specified offence. ow I turn to consider whether the words "found guilty in accordance with (the) Rules ... of a substantial breach of the Rules ... or gross neglect of duty" have the same meaning in Rule 56(v)(b) as they have in s.133(1)(f). Rule 56 of the Rules is headed "Offences and Penalties". Sub-rule (i) of the Rule provides: "Any member of the Union may charge any other member with: . (a) Failing to observe any of the Rules of the Union or of any Branch; (b) Knowingly failing to comply with any resolution of Conference, the Federal Executive or State Executive; (c) Committing any fraudulent act or unlawful act in relation to the funds or property of the Union, or in relation to any election held under its Rules; (dad) Knowingly giving false or misleading information to the Conference, Federal Executive or State Executive or to any meeting held under the Rules of the Union or to any officer of the Union on any matter affecting the interests of the Union or its members; (e) Wrongfully holding himself out as occupying any office or position in the Union or any Branch thereof, or as being entitled to represent the Union or a Branch in any capacity; (f) Obstructing or unreasonably failing to assist any officer in the course of his duties; (g) After having been reasonably requested to assist, failing to assist Conference, the Federal Executive, any State Executive or other lawful committee or body of the Union in any way in the performance of any of its functions; (h) Failing to report to the State Executive or Federal Executive a member who he believes has been guilty of a breach of the Rules; (i) Behaving in a drunken, disorderly or offensive manner at any meeting held under the Rules of the Union or in the office of the Union or of any Branch; (j) Aiding or encouraging any member in any offence under the Rules" _Sub-rule (ii) provides, inter alia, that any charge shall be made in writing and shall be made to the General Secretary-Treasurer or Branch Secretary-Treasurer. Sub-rule (iii) provides that the Federal Executive and the State Executive "shall have power to hear and determine charges under this Rule". Sub-rule (iv) provides that "the charge may be investigated" and that, at the hearing, "the member charged must be given a reasonable opportunity to defend himself". Sub-rule (v) is as follows:- "If the Federal Executive or State Executive finds the member guilty of the charge, it may: (a) Fine him a sum not exceeding $20; (b) If he holds office or a position requiring ,~ performance of a duty under these Rules remove him from that office or position provided that a person who is the holder of an office as defined by the Conciliation and Arbitration Act shall not be removed from that office unless he has been found guilty in accordance with these Rules of misappropriation of the funds of the union or a substantial breach of the Rules of the union, or gross misbehaviour or gross neglect of duty or has ceased according to the Rules of the union to be eligible to hold the office; (c) Expel him from membership of the Union; (d) Suspend him from membership for a specified period or until the happening of a specified event or until the performance by him of a specified act. Suspension from membership shall deprive him of the rights and benefits of membership, but shall not relieve him of the obligations of membership and shall not exceed six months for any one offence; (e) Impose no penalty". Were it not for the fact that the provisions of Rule 56(v)(b) were plainly included to satisfy the requirements of s.133(1)(f), there would be much to be said for the view that _the reference in Rule 56(v)(b) to a member being "found guilty in accordance with these Rules of misappropriation of the funds of the union or a substantial breach of the Rules of the union, or gross misbehaviour or gross neglect of duty" was not a reference to a primary or substantive finding of guilt but envisaged an assessment of the facts or circumstances involved in a finding of one of the offences specified in Rule 56(i). The reason for this 1s that the Rules contain no provision for a member to be charged with any of the particular matters of which he must be "found guilty" before the penalty of removal from office can be imposed. On the other hand, the reference in Rule 56(v)(b) to the member being found guilty "in accordance with these Rules" of one of the matters specified would seem to indicate a requirement that he had been found guilty of one of those matters in accordance with the procedure laid down by the Pua -10- Rules for a finding of guilt against a member, that is to. say, the procedure laid down by the previous clauses of Rule 56. That procedure is plainly only appropriate to find him guilty in relation to a matter with which he has been charged. The Rules contain no provision either empowering a finding of guilt in the absence of a charge being laid under the Rules or authorizing the body hearing a charge under the Rules to add, to a finding of guilt in respect of the matter charged, a further finding of guilt of some different offence in respect of which no charge has been laid. Nor do the Rules contain any guidance as to how any such supplementary function might be discharged. Would, for example, all members of the body be entitled to vote on the supplementary finding or only those who were in favour of the primary finding of guilt of the offence charged? If the latter, would an absolute majority or only a majority of those making the primary finding of guilt be necessary to sustain a supplementary finding of guilt of the different offence? Be this as it may, however, the conclusion appears to me to be unavoidable that the reference, in Rule 56(v)(b), to a member being "found guilty" of one of the relevant matters should be given the same meaning as the corresponding reference in s.133(1)(£) of the Act. It follows that, in my view, the reference to a finding of guilt in Rule 56(v)(b) is a reference to a primary or substantive finding of guilt. Where a member has been charged and found guilty of failing se -ll- to observe a Rule and of knowingly fa1ling to comply with resolutions of Federal and State Executive, the mere declaration, at the stage of determination and imposition of appropriate penalty, that the member was guilty, in relation to each of those offences, of a substantial breach of the Rules and of gross neglect of duty does not mean, for the purposes of Rule 56(v)(b), that the member "has been found guilty in accordance with (the) Rules of ... substantial breach of the Rules of the union or gross neglect of duty". The consequence of this conclusion may be that, since the Rules contain no provision for the bringing or hearing of a charge of any of the offences specified in s.133(1)(f) and Rule 56(v)(b), a member cannot be found guilty in accordance with the Rules of any of those particular offences. If this be the case, it is the result of a failure to adapt the Rules to the substantive requirements which are prescribed by s.133(1)(f£) and reflected in Rule 56(v)(b). Any deficiency in the Rules in that regard could be cured by adding the offences specified in s.133(1)(f£) and Rule 56(v)(b) to those set out in Rule 56(i). In any event, to construe Rule 56(v)(b) as authorizing dismissal from office in a case where there had been no primary or substantive finding of guilty of a charge of one of the specified offences would be productive only of conflict with the requirements of s.133(1)(f) and, at least to the extent of such conflict, of consequential invalidity. cae -12- In the present case, the claimant was never charged -with any of the offences specified in s.133(1)(f). The only charged offences of which he was found guilty were of failing to observe one of the Rules of the organization and of knowingly failing to comply with a number of resolutions. A finding of guilt of those charges did not necessarily involve a finding of guilt of any of the offences specified in _-$.133(1)(f). It is plain from the material before the Court that the Federal Executive did not make any primary or substantive finding that the claimant was guilty of any of the offences specified in s.133(1)(f). As the resolution which the Federal Executive passed discloses, what the Federal Executive did was to resolve upon the primary findings of guilt and then, when the question of appropriate penalty was under consideration, record a determination to the effect that the facts and circumstances relevant to the offences with which the claimant had been charged and of which he had been found guilty involved two of the offences specified in s.133(1)(f). In these circumstances, the statement that the Federal Executive "determines that in relation ,to each of the offences of which he has been found guilty" the claimant had committed a substantial breach of the Rules and had been guilty of gross neglect of duty amounted to no more than a gloss upon the primary or substantive finding of guilt. It did not, in itself, constitute, for the purposes of Rule 56(v)(b), a finding of guilt in accordance with the Rules of either of those specified offences. -13- In the result, I consider that the purported removal from office of the claimant was null and void by reason of the fact that the only offences of which the claimant had been found guilty in accordance with the Rules were the offences with which he had been charged, namely, simple failure to observe a Rule and knowing failure to comply ; with Federal Executive and State Executive resolutions. The Federal Executive's declaration that, in relation to each of the offences of which he had been found guilty in accordance with the Rules, the claimant was guilty of the quite different offences of substantial breach of the Rules and gross neglect of duty, did not constitute, for the purposes of Rule 56(v)(b), a finding of guilt, in accordance with the Rules, of those different offences. In these circumstances, and in the absence of any suggestion that the claimant had ceased to be eligible to hold the office of Branch Secretary, the provisions of Rule 56(v)(b) expressly precluded the claimant's removal from office by way of penalty. It follows that Question 4(a) of the Case Stated should be answered in the affirmative. That answer to Question 4(a), makes it unnecessary to answer Question 4(b) or (c). It 1s common ground between the parties that, in view of that answer to Question 4(a), Question (1) should be answered in the negative and Questions (2) and (3) need not tha nee IAG Gages are & 1 certify that Uris an be answered. »wagment herein of true copy of the recoon bi His Honour Mr Justice Deane K Metis ASSOCIATE Mila 22 ios}