IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION wee ww BETWE No. WA 3 of 1984 EW: FRANCIS ALLEN and LESLIE ALAN SEMPLE PARK Applicants and THE BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALTA First Respondent THE WESTERN AUSTRALIAN CARPENTERS & JOINERS , BRICKLAYERS AND STONEWORKERS INDUSTRIAL UNION OF WORKERS Second Respondent PATRICK MARTIN CLANCY, ERNEST BOATSWAIN, THOMAS McDONALD, ARNOLD CURRIE, HUGH HAMILTON, BEN CARSLAKE, ROD DRIVER and ALFRED ZEENO Third Respondents R. MARCHANT, G. FERGUSSON, T. MORRISON, W. GABLES , L. STRUTZENBERGER, J. PINCIRO, I. SMITH, M. O'LEARY, J. TAYLOR and D. EITSENHAMMER Fourth Respondents CORAM: TOOHEY J. 12 March 1984 REASONS FOR JUDGMENT This is a further chapter in what is becoming a saga of the Building Workers Industrial Union of Australia (the "BWIU"), an organisation under the Conciliation and Arbitration Act 1904. Matters involving Mr. Allen and Mr. Park on the one hand and the BWIU on the other have been before this Court on several occasions since last year. To place the present application, which is for interlocutory relief, in context it is helpful to look briefly at what has happened so far. Mr. Allen and Mr. Park are members of the BWIU and, until February 1983, each was an organiser of the Western Australian Branch of the BWIU ("the Branch"). At that time steps were taken by the assistant secretary of the Branch, Mr. Henderson, to suspend Mr. Allen and Mr. Park as organisers; thereafter the committee of management of the Branch purported first to suspend and then to dismiss them as organisers. On 6 May 1983 this Court made orders, the effect of which was to require the BWIU and the officers of the Branch to treat the suspension and dismissal of Mr. Allen and Mr. Park as null and void. Subsequently Mr. Park and Mr. Allen each brought proceedings against Mr. Henderson, charging him with a failure to comply with orders made by the Court in the proceedings just mentioned. On 2 September 1983 Beaumont J. dismissed each of those informations. The next step was a reference by the Industrial Registrar to the Court, pursuant to s.159(4) of the Act, of an inquiry into an election being conducted by the BWIU under s.170 of the Act. That election concerned officers of the Branch. The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a union registered under the Industrial Arbitration Act of this State and referred to hereafter as "the State union", had requested that an election for officers of the State union be held concurrently with the Federal election. Mr. Boatswain, an assistant secretary of the BWIU, was the person who had sought from the Industrial Registrar an inquiry into the Branch election. In proceedings before this Court, Mr. Boatswain sought an interim order which, if granted, would have deferred the State union election until the election for the Branch had been completed. That claim for interim relief was denied and no further steps were taken in that application although, as I understand the position, the reference to this Court is still on foot. Concurrent elections were held and, as it happened, those elected to the committee of management of the Branch were not identical with those elected to the committee of management of the State union. Such a situation had not arisen at any time since there had been a Western Australian Branch of the BWIU and a State registered union in Western Australia. The election results reflected the existence of different factions within the BWIU. It will be necessary to look more closely at the relationship between the BWIU, the Branch and the State union. But, as an immediate consequence of the elections, problems arose concerning bank accounts, office premises and other items of property. For all practical purposes the affairs of the Branch and those of the State union had been conducted as one. On 6 December 1983 this Court made certain orders against persons who then comprised the committee of management of the Branch but whose tenure of office ceased, by reason of the elections just held, onl January 1984. Those orders were designed to preserve property claimed to belong to the Branch. Those orders were by way of interim relief but were subsequently extended, without demur, until the hearing of the substantive application in matter number WA 24 of 1983. On 22 December orders were made in the same matter against the State union, designed to ensure access by Mr. Allen and Mr. Park to premises and records for the purpose of conducting the affairs of the Branch of which they were then the secretary and assistant secretary respectively. The orders against the State union were, on 8 February 1984, discharged by consent at the instance of the applicants. That matter, WA 24 of 1983, is presently before the Court as part of a directions hearing. The matter now before the Court arises in this way. Notwithstanding the election of Mr. Allen and Mr. Park to the position of secretary and assistant secretary of the Branch at the recent election, the BWIU continues to regard the State union as its Western Australian Branch and the officers of that union as the committee of management of the Branch. In the present application Mr. Allen and Mr. Park seek orders against the BWIU, the State union, the members of the national executive of the BWIU and the committee of management of the New South Wales branch of the BWIU. The basis of the application is said to be found in s.141 of the Act. That section reads: "(1) A member of an organisation may apply to the Court for an order under this section in respect of the organisation. (1G) An order under this section may give directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules." The substantive relief sought by the applicants includes a declaration that they hold the offices of secretary and assistant secretary of the Western Australian Branch of the BWIU and orders that will restrain the respondents from holding out the State union as the Western Australian Branch of the BWIU. The matter presently before me is by way of a claim for interlocutory injunctions restraining the respondents from holding out the State union as the Western Australian Branch of the BWIU and other injunctive relief which, if granted, will preclude the State union from using the words "Building Workers Industrial Union" or the letters "BWIU" as part of its title and will restrain the BWIU from authorising the State union to use those words or those letters. Other injunctive relief sought relates to the payment of subscriptions and the entry onto premises occupied by employers bound by the National Building Trades Construction Award 1975. The substantive application raises questions of fact and of law, many of which were explored or at any rate touched on in the course of the present proceedings. Some reference to most of these matters is called for in the course of these reasons but it is necessary to keep in mind that the present claim is one for interim relief. Some brief reference to the history of the BWIU and the State union is required. First however I should explain why the committee of management of the New South Wales Branch of the BWIU appear as the fourth respondents in this application. The reason is that, as a matter of administrative convenience, the fourth respondents maintain the membership records of the members of the BWIU in Western Australia on a computerised system and give notice to members of the Branch when subscriptions are payable. The fourth respondents are joined with a view to restraining them from sending notices directing payment of subscriptions to the office of the State union. The national rules of the BWIU refer to it as a union "formed by the amalgamation of carpenters and joiners, bridge and wharf carpenters, bricklayers, stonemasons, tilelayers, roof slaters and tilers and an association with the Operative Plasterers' Federation of Australia". Rule 26 of those rules provide that there shall he branches of the organisation in various states including Western Australia and that: "Such Branches shall be known as the Building Workers' Industrial Union of Australia, New South Wales Branch, or as the case may be; or, with the approval of the National Executive the Branches may be known by some other name". The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers is, as already noted, a union under the industrial legislation of Western Australia. Its registered rules refer to it as "State Branch B.W.I.U." and rule 2 reads: "2. The name of the Branch shall be The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers". There are also rules of the Building Workers' Industrial Union of Australia, Western Australian Branch, rule 2 of which reads: "The name of the Branch shall be The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a Branch of the Building Workers Industrial Union of Australia". According to an affidavit filed by Patrick Martin Clancy, the national secretary of the BNIU, at the time of the registration of the BWIU under the Conciliation and Arbitration Act that organisation agreed that it would not, in Western Australia, conduct a branch which was in any way separate and distinct from the body which is now the state registered union. Again, according to Mr. Clancy, on 24 September 1963 the BWIU consituted the State union as its branch in Western Australia. Whatever the precise legal effect of what was done, there is no doubt that from 1963 until the recent branch election, the State union operated as the Western Australian Branch of the BWIU. Indeed, until that time, only one election was held for the committee of management of the Western Australian Branch of the BWIU and the committee of management of the State union. And, as already mentioned, the BWIU and the State union continue to adhere to that arrangement notwithstanding the outcome of the recent election. Certain questions pertaining to jurisdiction arise in this matter. They can be summed up in this way. 1. Can orders be made under s.141 of the Act against the BWIU or the State union, neither of which has itself an obligation under the rules of the organisation? 2. If an order under s.141 is not appropriate in the case of the BNIU or the State union, can the Court make an order of that sort so as to resolve the issues before it? 3. As a question which to some extent overlaps the previous one, if there is no power under s.141 or under any provision of the Act to grant the relief sought against the BWIU and the State union, is the granting of such relief so associated with the performance of rules by the other respondents that there is attracted to the Federal Court jurisdiction to resolve those issues? 1o. 4. Whatever the answer might be to the previous questions, can the Federal Court grant any relief in respect of a claim against a State registered union? Associated with these jurisdictional issues is the question of what is meant by saying that the State union is the Branch. The branch of a Federal organisation has no separate legal existence as a juristic person. Williams v. Hursey (1959) 103 CLR 30. There are difficulties in the way of treating the corporate body existing by virtue of State industrial legislation as a branch of an organisation incorporated under Federal legislation. Moore v. Doyle (1968) 15 FLR 59. Is the proposition argued by the respondents any more than that the membership of the Branch is coincidental with that of the State union? These are matters that must be considered at the substantive hearing but do not have to be answered now. With a view to determining the scope of the application under s.141, I asked Mr. Gethin, counsel for the applicants, to identify the rules in respect of which observance was sought. He mentioned rules 26, 17(1) and 15(3). Rule 26 has been referred to earlier in these reasons. It provides that there shall be branches of the BWIU and it is, no doubt, implicit in the rule that branches shall be lawfully constituted. Li. Rule 17(1) is concerned with the composition of the national executive of the BWIU, which body includes "such Branch Secretaries who are not elected to any of the aforementioned positions of the National Executive". Counsel also pointed to rule 15(3), whereby branches are entitled to elect "including the Branch Secretary, one delegate for the first two thousand members or part thereof". It is important that those responsible for the making of an application under s.140 not lose sight of order 4 rule 15(4) of the Federal Court Rules which requires the affidavit in support to set forth inter alia: "(a) the rule or rules of the organization the performance or observance of which is in question". Section 141 is somewhat unusual in that in confers on the court jurisdiction, not by virtue of some subject matter, but with reference to orders which may be made by way of directions for the performance or observance of rules. It is perhaps for that reason that there exists a line of authorities to the effect that orders should not be made under s.141 against organisations as opposed to individuals. 12. Of those authorities it is necessary to refer only to R. v. Commonwealth Industrial Court; Ex parte Federated Miscellaneous Workers' Union of Australia (1971) 125 CLR 502 at p.508, in the judgment of Barwick C.J. with whom the other members of the Court concurred. "However, having given the matter my consideration I have come to the conclusion that the preferable and correct construction of the section is that the orders the making of which s.141 authorizes are limited to orders against persons who are under an obligation to perform or observe the rules of an organisation and in particular the rules for the performance or observance of which the orders and directions are being given". It may be argued that there is an inherent power to make orders to prevent proceedings properly before the Court from being rendered nugatory by the acts of parties before the proceedings can be determined. Such an argument was rejected, in the case of the Commonwealth Industrial Court, in R. v. Forbes; Ex parte Bevan (1972) 127 COR 1 though some of the limitations of that court, as found by the High Court do not apply in the case of the Federal Court. In this regard B.M.I. Limited v. Federated Clerks Union of Australia (unreported decision of Federal Court delivered 21 December 1983) has some relevance though it was not referred to in argument. To confine s.141 to the making of orders against persons would have the consequence that no such order could be made 13. against the BWIU, the first respondent. It would also mean that no such order could be made against the State union, the second respondent, though there are other grounds upon which it may he argued that no such order may be made in the case of a State registered union. However, counsel for the State union appeared to acknowledge, in the course of his argument, that if orders under s.141 were otherwise permissible against his client, the limitation to which I have referred could be met by joinder of the committee of management of the State union. Counsel for the applicants argued that, so long as there was a justiciable issue in the case of some of the respondents, this Court had jurisdiction to make the orders sought against the first and second respondents by reason of its accrued jurisdiction. He referred to the decision of the High Court in Fencott v. Muller (1983) 46 ALR 41 and to the recent decision of Beaumont J. in Kennedy v. The Australasian Coal and Shale Employees Federation and Elcom Collieries Pty. Ltd. (unreported decision delivered 31 October 1983). The latter case concerned an application for a declaration under s.144 of the Act that the applicant was entitled to be enrolled as a member of the first respondent. Beaumont J. refused an application by the second respondent, the applicant's 14, employer, to be dismissed from the proceedings. He did so for the following reason: "In my opinion, once the first respondent elected to raise a defence to the claim made under s.144 that the applicant was neither employed nor qualified to be employed by the second respondent, it followed that the claims made by the applicant against the first and second respondents respectively were part of the same controversy, notwithstanding that different relief is sought against each respondent: the claim made against the second respondent springs from facts which are common to the claim made against the first respondent and the formula of 'common transactions and facts' may thus be applied in this case". Counsel for the applicants also drew attention to s.171C of the Act which permits a member of an organisation or any person having a sufficient interest in respect of an organisation to apply to the court "for a determination of the question whether an invalidity has occurred in the management or administration of the organisation or of a branch of the organisation or in an election or appointment in, or the making or alteration of the rules of, the organisation or a branch of the organisation ...". As counsel for the first, third and fourth respondents rightly pointed out, the matter before the Court is not an application under s.171C. I have difficulty in determining precisely the invalidity to which the applicants refer. If it is the decision made by the BWIU in 1963 that the State union should 15, be its Western Australian branch, that may be something more than an invalidity "in the management or administration of the organisation". To the extent that it is such an invalidity, s.171F may operate to validate what was done. As I suggested to counsel during the course of the hearing, the parties find themselves in somewhat of an invidious position. The applicants contend that the state union is not the Western Australian branch of the BWIU. If that argument is right, where is the jurisdiction of this court to make orders against that body? On the other hand, if the respondents are correct and the State union is the Western Australian branch of the BWIU, the union may well be amenable to the jurisdiction of the Federal Court under the Conciliation and Arbitration Act. Mr. Schapper, counsel for the State union, adopted the submissions of Mr. Rothman made on behalf of the other respondents. But he invited the court not to be overly concerned with all these questions at this stage. They are, he acknowledged, questions which will have to be addressed and in many cases answered for the purposes of the substantive hearing. But, he said, the court should not lose sight of the fact that it is a claim for interlocutory relief that is presently before it. Mr. Schapper was prepared to concede that, at least so far as his client was concerned, there was "a serious question to be tried" (Gibbs C.J. in Australian Coarse Grain Pool Pty. Ltd. v. 16. Barley Marketing Board of Queensland (1982) 46 ALR 398). He also conceded that the present case is not one in which damages may be said to be an adequate remedy. But, in his submission, the balance of convenience was wholly against the granting of the interlocutory relief sought. The arugment of the second respondent was that since 1963 the State union had operated as the Western Australian branch of the federal organisation. Members of the Western Australian branch recognise the office of the State union at 108 Beaufort Street as the office of the Branch. If the injunctions sought are granted, the State union will have to cease providing a service to members of the Branch. There will be confusion in the minds of members and their interests will be affected adversely. On the other hand, it was acknowledged that if an injunction is refused the applicants will have to continue functioning in the limited way in which they have operated to date. This, it was said, may hamper their activities but in effect the status quo will be preserved. There is a great deal of force in the submissions made on behalf of the second respondent though it is important not to forget that the applicants have been elected to the position of secretary and assistant secretary of the Western Australian branch by the members of that body. Although, in earlier proceedings, there was a suggestion of a challenge to the branch elections, no such challenge has been made. 17. This much is clear. To grant the relief sought will mean that the State union must cease holding itself out asa branch of the BWIU and must cease doing anything in the course of correspondence or other activities to suggest that it is the Branch. Yet its rules, registered under the provisions of the industrial legislation of this State, describe it as a branch of the BWIU. Equally the rules of the Western Australian branch of the BWIU, registered under the provisions of the Conciliation and Arbitration Act, identify the name of the branch as The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a Branch of the Building Workers Industrial Union of Australia. Members of the Branch have been accustomed to paying their subscriptions to and dealing with the office of the State union as the branch of the federal organisation. And employers affected by the National Building Trades Construction Award have been accustomed to dealing with the State union as the Western Australian branch of the BWIU. To make interim orders which will prevent that situation from continuing, when difficult questions of law and fact remain to be determined, may be to cause a great deal of confusion unnecessarily. The claim for interim relief presently before the Court is not one in which orders by way of preservation of property or other interests is sought which, if not granted, may cause irretrievable loss. I accept that to refuse the interim relief sought will Place the applicants under a handicap in carrying out' the 18. functions of the offices to which they have been elected. That is a problem they have already had to face. To refuse the injunctions will mean that they will have to continue under that handicap; but at the same time their difficulties will not have been aggravated. I am satisfied that the balance of convenience favours refusal of the interim relief presently sought. But I should make it clear, as I have endeavoured to do on previous occasions, that an early resolution of the questions which are raised by this application and by application number WA 24 of 1983 is eminently desirable. I shall give whatever directions are appropriate to ensure an early hearing of this matter. During the course of counsels' submissions, reference was made to s.78B of the Judiciary Act 1903. The effect of that section is that where a cause pending in the Federal Court "involves a matter arising under the Constitution or involving its interpretation", the Court may not proceed in the cause unless and until it is satisfied that appropriate notice has been given to the Attorney-General of the Commonwealth and of the States. Counsel did not define with any particularity the matter said to arise under the Constitution or to involve its interpretation other than the jurisdiction of the Federal Court to entertain a claim against a State registered union. 19. Section 78B(5) allows the Court, in such a case, to hear and determine proceedings, "so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so". It seemed to me necessary, in the interests of justice, to allow the application to continue. In any event s.78B(2)(c) permits the Court to "continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation". However, once this decision has been given, I shall explore more closely with counsel the possible operation of s.78B. The application for interlocutory relief is refused. I certify that this and the eighteen, preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey for associate Dated: 12 March 1984