IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. 6 of 1983 eee ew INDUSTRIAL DIVISION BETWEEN: MICHAEL ANTHONY PRICHARD Applicant and HARRY DAVID KRANTZ, LESLIE RICHARD HASELDINE, ALBERT FELLOWES, PETER DAVID SUMMERTON, FREDERICK EDWARD PRIEST, H.J. DARROCH, N. NELSON, M.d. O'SULLIVAN, JOAN RIORDAN, B. ASHE, K. GLOVER, MICHAEL BOURKE, F.J. FINLAY, J.F. HARDING, M. STRANGEWARD, B. SPEARS, D. FRY, D. EDGE, A.M. LAWLESS, VINCE HIGGINS, L.T. HAUFFE, F.J. ABEL, R.- J. WASSON, TERRY SULLIVAN, JOHN PETER MAYNES, J.D. CAMERON Respondents CORAM: Northrop ag. DATE: 29 November 1983 WHERE MADE: Melbourne ORDER THE COURT ORDERS THAT the rule to show cause insofar as paragraphs (b) and (c) thereof are concerned, be discharged. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. 6 of 1983 INDUSTRIAL DIVISION BETWEEN: MICHAEL ANTHONY PRICHARD Applicant . . and HARRY DAVID KRANTZ, LESLIE RICHARD HASELDINE. ALBERT FELLOWES, PETER DAVID SUMMERTON, FREDERICK EDWARD PRIEST, H.J. DARROCH, N. NELSON, M.J. O'SULLIVAN, JOAN RIORDAN, B. ASHE, K. GLOVER, MICHAEL BOURKE, F.J. FINLAY, J.F. HARDING, M. STRANGEWARD, B. SPEARS, D. FRY, D. EDGE, A.M. LAWLESS, VINCE HIGGINS L.T. HAUFFE, F.J. ABEL, R.J. WASSON, TERRY SULLIVAN, JOHN PETER MAYNES, J.D. CAMERON Respondents NORTHROP J. REASONS FOR JUDGMENT 29 NOVEMBER 1983 On 1 August 1983, the Branch Executive of the Federated Clerks' Union of Australia, South Australian Branch, "the S.A. Branch", adopted the following resolution: "In accordance with Rule 11l(a) the Branch Executive directs the removal from the register of Michael Anthony Prichard who appears to be no longer covered by the Constitution and who was notified in writing in accordance with sub clause (da) of the said rule and the said period provided, by sub clause (e) of the said rule having expired and no such reply seeking to show cause why his Re ee os 1 Maen name should not be removed from the register having been received, the Executive acts without further inquiry." That resolution was acted upon. Thereupon, if the resolution was valid, Michael Anthony Prichard, the applicant, ceased to be a member of the S.A. Branch and ceased to have any rights or privileges of membership of the S.A. Branch. At the same time he ceased to be a member of the Federated Clerks' Union of Australia, "the Clerks' Union", an organization of employees under the Conciliation and Arbitration Act 1904, "the Act". The applicant challenges the validity of that resolution. On 19 October 1983 he obtained a rule calling upon the respondents to show cause why orders should not be made pursuant to s.141 of the Act. Two of the orders sought by the applicant raise the question of the validity of the resolution adopted by the Branch Executive. The Court directed that the part of the rule to show cause which raised that question should be heard and determined separately from and prior to the other orders sought in the rule to show cause. The applicant claims to be a member of the Clerks' Union and since the issue of whether he is a member is raised by this application, he has sufficient standing to bring this application under sub-sec. 141(1) of the Act. Each of the respondents is a member of the Clerks' Union and thus each is under an obligation to perform or observe the rules of the Clerks' Union; see sub-sec. 141(1G). For the purposes of s.141 of the Act, the S.A. Branch Rules are treated as rules of the Clerks' Union. The respondents, Krantz, Haseldine, Fellowes and Summerton are the Secretary, the Assistant Secretary, the Deputy President and the Vice President respectively of the S.A. Branch. They, together with the President of the S.A. Branch, Michael James Knight, constitute the Branch Executive. The respondent, Priest, is a member of the S.A. Branch. The other respondents constitute some of the members of the Federal Council of the Clerks' Union. They were represented at the hearing of this part of the application but took no active part in the conduct of the hearing. At the hearing, the applicant appeared in person. Evidence was given by the applicant, Knight, and the respondent, Krantz. There is no real dispute as to the facts, but what is in issue is the inference to be drawn from some of those facts. In August 1978, the S.A. Branch engaged the applicant as an employee to perform the duties of a Branch Organizer. Thereupon, the applicant applied for and was granted membership of the Clerks' Union being attached to the S.A. Branch. In September 1980, the S.A. Branch dismissed the applicant from his position as a Branch Organizer. While a member of the Clerks' Union, the applicant stood unsuccessfully as a candidate for election to office in the S.A. Branch. Commencing in the year 1981, the applicant, either on his own or in conjunction with other members, commenced the first of a number of proceedings in the Federal Coutt seeking orders under sections 140 and 141 of the Act. One of those proceedings is identified as matter S.A. No. 9 of 1982. In addition, the applicant, in conjunction with other members of the Clerks' Union, made application under Part 1X of the Act seeking an inquiry into alleged irregularities occurring in connection with an election for offices within the S.A. Branch. The election inquiry proceedings are identified as matter S.A. No. 15 of 1981. In each of matters S.A. No. 9 of 1982 and No. 15 of 1981 questions arose as to whether the applicant was eligible to be a member of the Clerks' Union. Late in the afternoon of Friday, 29 July 1983, the hearing of matter No. 9 of 1982 concluded, whereupon the trial Judge said: "In matter number 9 of 1982, the court is of the view that the order nisi herein should be discharged. So that that is understood, I am of the view that on the evidence in the matter, the applicant Michael Anthony Prichard is not eligible to be a member of the Federated Clerks Union of Australia. I will publish my reasons at a later date." Later on the same afternoon, the trial Judge made orders in matter No. 15 of 1981. Among the offices the subject of that inquiry were the offices of President, Deputy President and Vice President of the S.A. Branch. At the election Geert Louis Viergever had been declared elected as President. the respondent Summerton had been declared elected as Vice President, and the respondent Fellowes had been declared elected as Deputy President. After the election inquiry commenced, the Court, on 18 September 1981, had made interim orders in substance permitting each of those persons to perform the duties of the holders of those offices respectively pending the determination of the inquiry. Mr. Viergever had died pending the hearing and determination of the election inquiry, but the casual vacancy occurring thereby had not been filled, the respondent Fellowes performing the duties of President in an acting capacity. On 29 July 1983 the Court ordered that each of those three persons had not been elected as President, Vice President and Deputy President respectively, that Mr. Knight had been elected President, that fresh elections be conducted for each of those positions and that pending the results of the new election the respondents Summerton and Fellowes respectively perform the duties of Vice President and Deputy President respectively. At this stage it is necessary to make brief reference to the rules of the Clerks' Union and of the S.A. Branch. The eligibility rule in each case provides: "2. CONSTITUTION The Union shall consist of all persons engaged in any clerical capacity, and/or engaged in the occupation of shorthand writers and typists and/or on calculating, billing, or * other machines designed to perform or assist in performing any clerical work whatsoever." Rule 2 must be read down and of necessity must be limited to persons who at the time of making application for membership are engaged or are normally engaged as employees and who carry on or normally carry on any of the pursuits specified in that rule. Application for membership is made to a branch of the Clerks' Union in the manner prescribed by the Branch Rules and except in special circumstances, not presently relevant, every member is attached to the Branch of the Clerks' Union covering the locality in which he resides or, in the case of persons employed in the Commonwealth Taxation Office, the Taxation Officers' Branch; generally see re Election Inquiry: Federated Clerks' Union of Australia; Ex parte Bath, Federal Court of Australia, Northrop J., 4 March 1982, unreported. Neither the rules of the Clerks' Union nor the rules of the S.A. Branch contain rules to the effect that a+member who ceases to be an employee or who ceases to be engaged in any of the pursuits specified in the eligibility rule, of necessity, ceases to be a member of the Clerks' Union. Accordingly, once a person has become a member of the Clerks' Union, he remains a member until he dies or until his membership is terminated either by himself or by the Clerks' Union. S.A. Branch Rule 17 constitutes the Branch Executive. The rule is set out in full: " 17. BRANCH EXECUTIVE The Branch Executive shall consist of the President, Deputy President, Vice-President, Secretary and Assistant Secretary. It shall meet monthly on the second Tuesday in each month or at such other time as it may decide. Three members shall form a quorum." The general powers and duties of the Branch Executive are contained in S.A. Branch Rule 18. It is not necessary to refer to those powers and duties, but it is noted that they are made subject to the direction and control of the Branch Council. Under S.A. Branch Rule 14, the officers of the S.A. Branch are the President, Deputy President, Vice President, Secretary and Assistant Secretary. The Branch Council is the committee of management of the S.A. Branch and the Branch Executive is the Executive Committee of the Branch Council. Under S.A. Branch Rule 15, the Branch Council consists of the officers, together with councillors elected by the members within sections of the S.A. Branch. The powers and duties of the Branch Council are contained in S.A. Branch Rule 16. They need not be referred to in detail. It is required to meet monthly on the 4th Tuesday in each month "or at such other time" as the majority of members may decide or when summoned by the Executive. In addition, the S.A. Branch Rules contain provisions relating to a conference of the S.A. Branch and to the powers of that conference, S.A. Branch Rule 16A, while special meetings of members have power to exercise control over the Branch Council; see S.A. Branch Rule 19. In addition, a ballot of members of the Branch may be held under S.A. Branch Rule 35 or under the Clerks' Union Rule 32. In each case, the result of the ballot is binding on the S.A. Branch. S.A. Branch Rule 22 relates to the President. He presides at all meetings of the Branch, but except in the case of elections, he possesses a casting vote only. He is to be consulted in all matters of urgency and shall give directions on all such matters. Under S.A. Branch Rule 24, the Secretary is responsible for the proper carrying on of the Branch and acts as general supervisor for and on behalf of the Branch. Under S.A. Branch Rule 8, a member may resign his membership of the Clerks' Union in the manner therein prescribed. S.A. Branch Rule 10 contains provisions relating to a register of members. S.A. Branch Rule 11 is of importance and is set out in full: (a) (c) (d) (e) 11. PURGING THE REGISTER The Branch Executive may direct the removal from the register of the name of any member who: (1) owes more than one year's contribution. (2) has failed for the space of one year or more to pay any levy or fine or (3) who appears to be no longer covered by the Constitution. (4) Whose present address or place of employment cannot be ascertained by the secretary by reasonable enquiry. (5) Who, although employed in a clerical capacity, is in the opinion of the Branch Executive, more particularly provided for by some other Industrial Union which is prepared to accept him as a member. Any person whose name has been so removed from the register shall thereupon cease to be a member or to have any rights or privileges of membership. Any person shall be liable to pay all contributions, fines, levies and other moneys due to the Union up to the date of removal of his name from the register. Before removing the name of any member from the register in accordance with this rule the member shall (except in the case of removals pursuant to sub-clause (4) of paragraph (a) hereof) be notified of the Executive's intention to remove his name. Such notification shall specify the ground or grounds upon which action is to be taken and shall be sent by post to the member concerned to his last known address as shown on the register of the Union. If such member fails within 14 days to show cause why his name should not be removed from the register the Executive may direct that his name be removed without further enquiry. - 10 - (£) Any member whose name has been removed from the register under the provisions of this Rule may appeal to the Branch Council." Doubts having arisen as to whether the applicant was eligible to be a member of the Clerks' Union, the Secretary notified employees of the S.A. Branch not to accept payment of Union dues from the applicant. The Secretary, in giving those instructions, had misunderstood the effect of the S.A. Branch Rules and was in error. On 26 October 1982, the applicant obtained a rule in matter No. 9 of 1982 calling on the Secretary and the Assistant Secretary to show cause why orders should not be made directing that they recognize the applicant as a member of the Clerks' Union. That matter came on for hearing on 6 and 7 July 1983 and was adjourned to 29 July 1983. Unfortunately, on each of those three days the parties to the hearing of that rule to show cause proceeded on the erroneous assumption that a relevant issue was whether, having regard to the nature of the applicant's then employment, he came within the conditions of eligibility of membership of the Clerks' Union. The true issue, as appears from the reasons for judgment of the Full Court of the Federal Court of Australia given on 21 October 1983 was whether the applicant was in fact and in law a member of the Clerks' Union. As a result of the erroneous assumption, much evidence, including an inspection of the applicant's then place of work, was given to the Court on each of those three ~l1- days. On the basis of that evidence, the trial Judge made the announcement on 29 July 1983 which announcement has been set out in full earlier in these reasons. The Branch Executive met on Wednesday, 13 July 1983. The then four officers of the S.A. Branch attended. At that time Mr. Knight did not occupy the office of President. The purpose of the meeting was to consider the question of commencing proceedings under S.A. Branch Rule 11 to have the applicant's name removed from the register of members. A draft letter to the applicant had been prepared by the Secretary. The meeting considered extracts from the reasons for judgment of the trial Judge in matter S.A. No. 15 of 1981 and extracts of the transcript of evidence given in matter S.A. No. 9 of 1982 relating to the nature of the then employment of the applicant. The meeting resolved unanimously, in accordance with S.A. Branch sub-rule 11(d), to advise the applicant of its intention to remove his name from the register of members on the ground "that he appears to be no longer covered by the Constitution as provided by Rule 11(a)(3)", to adopt the letter prepared by the Secretary and to authorize it to be sent to the applicant. The letter was dated 13 July 1983 and was received by the applicant on 14 July 1983. The letter enclosed a copy of the whole of S.A. Branch Rule 11. The letter made reference to sub-rule 11(d) and notified the applicant that the Executive intended to remove his name from the register of members pursuant to Pa VERN eee Reem ee -12-+ sub-rule 11(a) (3) which was set out. The letter referred to the decision of the trial Judge in matter No. 15 of 1981 and to evidence given on oath by the applicant on 7 July 1983 in matter No. 9 of 1982. The last paragraph of the letter was as follows: "Any reply 'within 14 days' should be received by me by 5.00 p.m. on Wednesday, 27th July 1983 at the above address." By letter dated 16 July 1983, the then solicitors for the applicant wrote to the solicitors for the respondents Krantz and Haseldine, the respondents in matter No. 9 of 1982. The letter referred to the correspondence comprising two letters relating to the removal of the name of the applicant from the register of members. The other letter of 13 July 1983 need not be referred to in detail. The letter from the then solicitors for the applicant suggested that the action by the Branch Executive "could well constitute a contempt of Court" and in any event was "a vexatious and precipitate action". It referred to matter No. 9 of 1982 and sought an undertaking that no action be taken by the Branch Executive "before the adjourned date" being 29 July 1983. The letter contained a notice that applications might be made seeking interlocutory orders. On 18 July 1983 oral undertakings were given on behalf of the respondents Krantz and Haseldine. It is not necessary to refer to motions seeking interlocutory orders. On 21 July 1983 the solicitors - 13 - for the respondents Krantz and Haseldine wrote to the then solicitors for the applicant. The last two paragraphs of that letter were as follows: "We confirm the undertaking given to you by telephone on 18th July that no action would be taken by the Executive in respect of this matter before 29th July. We trust that this is all that you require at this stage. (Please note that the above undertaking is not intended to relieve Mr Prichard of the obligation of responding within fourteen (14) days as indicated in the letter of the Executive to him)." On 29 July 1983, the trial Judge in matter No. 9 of 1982 announced that on the evidence he was of the view that the applicant was not eligible to be a member of the Clerks' Union. The transcript of that announcement did not become available to the parties until some fourteen days later. On 29 July 1983 the trial Judge in matter No. 15 of 1981 declared by order that Mr. Knight had been duly elected President of the S.A. Branch. As a result of these orders, the respondent Krantz considered it necessary that the Branch Executive meet as soon as possible. The signature of the President was required for a number of purposes including banking and entry certificates. It was reasonable that a meeting of the Branch Executive, as the Executive Committee of the Branch Council, be held as soon as possible. The Secretary did not know the ~14 - address or telephone number of Mr. Knight. On Friday, 29 July 1983 he discussed the matter with the other officers of the S.A. Branch and arranged for a meeting of the Branch Executive to be held at 9 a.m. on Monday, 1 August 1983. On the morning of Saturday, 30 July 1983, the respondent attended at the office of the S.A. Branch. He ascertained the address of Mr. Knight. He could find no record of a telephone number in the name of Mr. Knight. He enquired of Telecom directory assistance but could find no record of a telephone number in the name of Knight. In fact, there is a telephone in the home of Mr. Knight but it is not listed in his name, nor in the name "Knight". The respondent arranged for a telegram to be sent to Mr. Knight. The telegram was delivered by taxi and was delivered to Mr. Knight before 12 noon on Saturday, 30 July. The telegram was addressed to Mr. Knight and was as follows: "Meeting of Branch Executive called 9 a.m. Monday lst August 1983 at Union office stop Endeavoured to and unable contact you by telephone stop Ali other members of Branch Executive desire and agree to calling of meeting stop If you desire to phone my home number is 31 6539. KRANTZ" Mr. Knight rang the respondent Krantz at about 6 pem. on Sunday, 31 July 1983. It is not necessary to set out the content of that conversation in detail. No mention was made of the removal of the name of the applicant from the register of members, but reference was made to the need to -15- make arrangements concerning important matters arising from the fact that Mr. Knight was now the President of the S.A. Branch. Mr. Knight said that he could not attend and that he objected to the meeting being held at that time. The Court is not satisified that there was any valid reason why Mr. Knight could not attend that meeting. Later on the Sunday evening Mr. Knight rang the respondent Fellowes and had a long discussion relating to the removal of the applicant's name from the register of members. The Branch Executive met at 9 a.m. on Monday, 1 August 1983. The minutes of that meeting contain a full record of what occurred. All the officers of the S.A. Branch, except Mr. Knight, attended the meeting. They confirmed and ratified the calling of the meeting. A report of the orders of the Court made on 29 July 1983 was given, but in the report the reference to the announcement in matter No. 9 of 1982 was that the Court said "that Prichard was not a member of the" Clerks' Union. A report was given of the objection taken by Mr. Knight to the calling of the meeting. Under the heading "Purging the Register - Mr. M. A. Prichard" relevant correspondence was referred to and particular reference was made to the fact that no reply had been made by the applicant to the letter of 13 July 1983, except the correspondence from his then solicitors which stated that the applicant "would not be replying personally to the - 16 =- correspondence ... within the period of fourteen days or within any other period". The meeting unanimously passed the resolution set out at the beginning of these reasons. A letter dated 1 August 1983 from the S.A. Branch to the applicant set out that resolution and stated that the Secretary had acted upon the resolution. It is noted that the letter dated 1 August 1983 is Exhibit J in these proceedings and is identified as that letter "with annexure". Stapled to the letter is an extract of part of the transcript in matter No. 9 of 1983 setting out the announcement made by the trial Judge on 29 July 1983. That part of the transcript did not become available to the parties until well after 1 August 1983 and so the extract could not have been annexed to the letter. Further, the letter makes no reference to any annexure. The letter is the original letter received by the applicant shortly after 1 August 1983 and the annexure must have been stapled to that letter after it had been received by the applicant. The applicant has not exercised the right conferred by S.A. Branch Rule 11(f) to appeal to the Branch Council. Pursuant to Federal Rule 27(9) of the Clerks'' Union the applicant has lodged an appeal to the Federal Executive of the Clerks' Union against the decision of the S.A. Branch Executive that his name be removed from the register of members. On Wednesday, 10 August 1983 the S.A. Branch -17 - Council "confirmed the action of the Branch Executive in purging Mr. Michael Anthony Prichard from membership of the Union". In addition to the matters already mentioned, the applicant relies upon a copy of "The Clerk" a newsletter published by the S.A. Branch. The respondent Krantz is the editor of that newsletter. The issue No. 2 of 1983, May, contains a summary of the legal proceedings commenced by the applicant either on his own or in conjunction with others involving the S.A. Branch and a State registered union corresponding to the S.A. Branch. Before considering the matters raised by submissions, the Court should note that it finds the respondent Krantz is a witness of truth and accepts his evidence. There is very little conflict between his evidence and the evidence given by the applicant and Mr. Knight, but where there is conflict the Court prefers the evidence of the respondent Krantz. In particular, the Court accepts his evidence relating to the absence of bad faith in his consideration of the matters relating to the removal of the applicant's name from the register of members and the inclusion of the summary of legal proceedings in "The Clerk". In support of his claims, the applicant relied on a number of contentions. He contended that the S.A. Branch Rules contravene sub-section 140(1) of the Act in that they PRM ce rt me eee SRT TSF PET ATS ERSTE pera -18- failed to make provisions required by the Act and the regulations. Even if that was so, no rule upon which the respondents relied would thereby become invalid. Accordingly, no further reference is made to this contention. He contended further that the election of the respondents Krantz and Haseldine to the offices of Secretary and Assistant Secretary respectively of the S.A. Branch was invalid and therefore the action taken by the Branch Executive at which they participated was invalid. That election was conducted as an officially conducted ballot, sub-section 141(9) of the Act, and thus, under sub-section 141(5) an order cannot be made that would have the effect of treating that election as invalid. Accordingly, no further reference is made to this contention. The applicant contended that S.A. Branch Rule ll, as well as S.A. Branch Rules 17, 18 and 19 each contravened sub-section 140(1) of the Act and thus could not be relied upon by the respondents to support the action taken by the Branch Executive in removing his name from the register of members. He contended that each of those rules imposed upon members of the S.A. Branch conditions, obligations or restrictions which, having regard to the objects of the Act and in particular the object contained in paragraph 2(f), and the purposes of the registration of organizations under the Act, were offensive, unreasonable or unjust; see paragraph 140(1)(c) of the Act. He made a number of detailed - 19 - submissions in support of that contention. The Court has considered each of those submissions but does not find it necessary to repeat them in these reasons for judgment. The methods adopted to determine issues of the kind raised by this contention are discussed in a number of recent cases in the Federal Court of Australia, but for present purposes reference is made to Wright v. McLeod, Federal Court of Australia, 28 November 1983, unreported, per Evatt and Northrop JJ. The principles of law to be applied need not be repeated. The S.A. Branch Rules 8 and 11 are designed to give effect to the requirements of s.144 of the Act and Reg. 115(1) (da) (viii). S.A. Branch Rule 11 confers an administrative power on the Branch Executive. It prescribes a detailed procedure to be followed before the name of a member can be removed from the register of members. Initiative may come from the Branch Secretary pursuant to his duty to be responsible for the proper carrying on of the Branch and as general supervisor for and on behalf of the Branch. When a matter relating to the purging of the register of members is first brought before the Branch Executive, the Executive is required to consider whether there is material to suggest that one or more of the grounds set out in sub-rule 11(a) may be satisfied. There is no need for notice of this first step to be given to the member aa ~ 20 - concerned. This step is administrative in character and this is the power which the Executive must exercise to set in motion the subsequent procedures prescribed by Rule 11. Those procedures bear many similarities to the procedures under the Act whereby a member of an organization is able to obtain a rule to show cause under s.140 or 141 of the Act. Some of the grounds specified in sub-rule 1l1(a) may give rise to difficult questions. The applicant argued that the fourteen-day notice requirement was too restricted and illustrated this by reference to a case where a member might be on leave and might not be able to show cause within the fourteen days. This argument is rejected. Some time limit must be imposed and it cannot be said that a fourteen-day period is oppressive, unreasonable or unjust. For present purposes the relevant ground is that set out in paragraph . (3). The Court is satisfied that there was material before the Branch Executive at its meeting on 13 July 1983 which justified it in commencing procedures based upon that paragraph. It is important to note that those procedures are not in the nature of charges for misconduct where procedures to be followed in quasi-criminal matters are to be applied; see for example the provisions of S.A. Branch Rule 38 which empower the Branch Council to impose a fine and/or suspend or expel any member of the Branch on the grounds specified in that rule. In the present case, there is no prosecutor laying a charge and the matters discussed in cases such as Cains v. Jenkins (1979) 46 F.L.R. 278 and on appeal (1979) 42 - 21 - F.L.R. 188 have no application. The Branch Executive itself calls upon the member concerned to show cause why his name should not be removed from the register. It is not required to act in a quasi judicial manner at that stage of the procedure. S.A. Branch sub-rules 11(d) and (e) prescribe progedures to be followed before action is taken to remove the name of a member from the register of members. Ifa member responds to the notification of intention, the Branch Executive is required to consider the matters raised by that response. At that stage of the proceedings some of the principles of natural justice may be imported, but in the present case no response was made, the applicant did not attempt to show cause and therefore under sub-rule 1ll(e) the Branch Executive was not required to make further enquiry. A right of appeal is given by sub-rule 11(f). The Court finds that S.A. Branch Rule 11 of itself does not contravene sub-section 140(1) of the Act. The applicant submitted further that the quorum of three persons at meetings of the S.A. Branch Executive, S.A. Branch Rule 17, contravened sub-section 140(1) of the Act. He stressed the fact that two persons had power to make Gecisions adversely affecting a member. Even if that submission was correct, it does not affect the present -~ 22 - application where four members voted in favour of the resolution to remove the name of the applicant from the register of members. In any event, the Branch Executive, as the Executive Committee of the Branch Council, is subject to the direction and control of the Branch Council; see S.A. Branch Rule 18. If necessary, the Court would decide that on the material before it in these proceedings, S.A. Branch Rule 17 does not contravene sub-section 140(1) of the Act. The challenge to S.A. Branch Rules 18 and 19 likewise is rejected. The challenge to those rules is not relevant to any issue in this application. The applicant challenged the validity of the meetings at which the decisions attacked were made. Under S.A. Branch Rule 17, the Branch Executive meets "on the second Tuesday in each month or at such other time as it may decide". The relevant meetings were not held on a Tuesday but were held at a time determined by the Branch Executive but not pre-determined by the Branch Executive. The applicant referred to the structure of the rules which provides for meetings of the Branch Executive on the second Tuesday of each month and for meetings of the Branch Council on the fourth Tuesday of each month. That is so, but the Executive has power to meet at such time as it may decide and in this case the Executive approved the meetings. In any event, the Branch Council has confirmed the action taken by the Executive. On the facts found, the Court is satisified that the meetings of the Branch Executive were called validly and in accordance with the S.A. Branch Rules. Nothing vitiates the resolutions passed at those meetings. None of the members of the Branch Executive acted mala fide. There are no facts proved upon which the principles discussed in Allen v. Mownsend (1977) 31 F.L.R. 431 per Evatt and Northrop JJ. at pp.483-89 can be applied in this application. In truth, there is much to be said for the view that the Branch Executive would not be acting in the best interests of the S.A. Branch if it believed, on reasonable grounds, that the applicant, who was causing the S.A. Branch to incur large amounts of money in respect of legal costs, was not covered by the Constitution of the Clerks' Union and failed to take action under S.A. Branch Rule 11 to have his name removed from the register of members. The fact that the Branch Executive did so does not support a contention that its members failed to exercise that power bona fide. Likewise, there is no basis and no facts proved to justify a finding of bias against the respondent Krantz or against any of the other respondents, members of the Branch Executive. In the present case it must be remembered that the vital decision was made at the meeting of the Branch Executive on 13 July 1983. The applicant, through his then solicitor, determined not to show cause why his name should ~ 24 ~ not be removed from the register of members. He took no steps to show cause. In fact, he caused notice of his determination not to show cause to be given to the Branch Executive. In those circumstances the Branch Executive was not required to make further enquiry into the matter before removing the applicant's name from the register of members. Although findings of fact have been made relating to the bona fides of the members of the Branch Executive and the absence of bias against the applicant by those members, those findings are not strictly necessary. On the facts of this case there was no proceeding at which the question of natural justice being applied in the hearing and determination of a 'show cause' matter came before the Branch Executive. On any view, in the absence of showing cause, it is difficult to see how there could be a denial of the requirements of natural justice. Notice had been given to the applicant. He had been given an opportunity to be heard but had not taken that opportunity. The powers of the Executive Committee cannot be thwarted by the absence of action taken by the applicant. It must be noted also that the Court in these proceedings is not acting as a court of appeal to determine the merits of the decision taken by the Branch Executive. In particular, in these proceedings, the Court should not and does not express any opinion on the question of whether the applicant is "covered by the Constitution" of the Clerks' Union. ee ee Oty EEE ee ee eee ~~ Peay - 25 + It follows, therefore, that the rule to show cause, insofar as (b) and (c) are concerned, should be discharged and orders made accordingly. SRE ea cares, I certify thet this and the bwesty- four (24) preceding pages are a truc copy of the Reasons ior Judgment herein of the Honourable Mr. Justice Nortxrep me ame Associate Dated: 2% Noventer /943 i MN CR a oO an aE eID a NTs Seon or