~ IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE No. W 450 of 1977 OF NEW SOUTH WALES AND THE wey AUSTRALIAN CAPITAL TERRITORY Re: DAVID HOLROYD HARDWICK Ex parte: DAVID HOLROYD HARDWICK Applicant CORRIGENDA Amendment to the judgment of his Honour Mr Justice Morling > of 4 April 1984 - page 3, line 22 "Official" altered to "registered" Lbone € ba, LY A. E. KNIGH 2 May' 1984 ASSOCTATE TO MORLING J. CATCHWORDS Bankruptcy - application for discharge - unresolved question about interest of bankrupt in land - money advanced to bankrupt - whether a debt or a gift - whether appropriate to'withhold order of discharge - matters upon which court to be satisfied before making order Bankruptcy Act 1966, 3. 149, 3. 150(5), (6)(bD), (ce) Re: DAVID HOLROYD HARDWICK Ex parte: DAVID HOLROYD HARDWICK, Applicant No. W450 of 1977 Morling J. 4 April 1984. Sydney. t IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY No. W 450 of 1977 Re: DAVID HOLROYD HARDWICK Ex parte: DAVID HOLROYD HARDWICK Applicant ORDER JUDGE MAKING ORDER $ Morling J. DA OF ORDER : 4 April 1984 WHERE MADE. : Sydney THE COURT ORDERS THAT: Ll. The applicant is discharged from bankruptcy. 2. The Official Trustee's costs to be paid by the bankrupt. IN THE SEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE No. W 450 of 1977 OF NEW SOUTH WALES AND THE ee ene ee AUSTRALIAN CAPITAL TERRITORY Re: DAVID HOLROYD HARDWICK Ex parte: DAVID HOLROYD HARDWICK Applicant MORLING J. 4 April 1984 REASONS FOR JUDGMENT This is an application for discharge fron bankruptcy by Mr David Holroyd Hardwick. A sequestration order was made against his estate on 10 August 1977 upon the petition of Mercredits Finance Limited. An objection in accordance with s. 149 of the Bankruptcy Act, 1966, in the form it then tock, was lodged by the Official Trustee in Bankruptcy. Accordingly the automatic discharge from bankruptcy, which otherwise would have eventuated had the objection not been lodged, did not occur. The objection hag still not been withdrawn but should I make an order of discharge on this application, which is brought under s. 150 of the Act, the objection will lapse by virtue of «he provisions of s. 149(11) of the Act. tv rs The application for discnarge was lodged on 8 July 1983. Upon the nearing of the application the official Trustee was represented by counsel, as was a creditor, Mr Balyck. In his statement of affairs the bankrupt disclosed assets of about $25,000. However, only apout $4000 has been brought to the credit of his estate. There has been a considerable change in the proots of debt which have been lodged against the estate. As the position presently stands, debts toa the value of about 369,000 have been admitted. Proofs of debt for about $17,500 have not been admitted. In recent times proots of debt to the order of about $40,000 have been withdrawn. The bankrupt has been publicly examined. It appears that notwithstanding the lapse of time since his estate was sequestrated there is still an unresolved question as to whether or not he has an interest in land at Windang in New South Wales. He claims that he hag no such interest. He says that his wife and children are entitled to an interest in that land. Counsel for Mr Balyck has appeared primarily for the purpose of protecting his client's interest as Mr Balcyk disputes that the bankrupt or any memper of his family has an interest in the land. Ido not think that the unresolved question about the Windang land should be treated as a factor militating against an order of discharge. It is plain that even if the bankrupt is discharged it will be competent for his trustee to pursue any action that he thinks may be productive in respect of the land. The bankrupt gave oral evidence before me on this matter and on the material before me he does not appear to have any interest in the land. In making that observation I am not in any way expressing any concluded view on the matter. I make it only to reinforce the observation I have already made that I do not think the outstanding question should be seen as justifying the withholding of an order of discharge. It is plain that the bankruptcy arose out of improvident and unfortunate business dealings by the bankrupt. There is nothing in those dealings which indicates any gross commercial misbehaviour by the bankrupt. The Official Trustee has drawn to the court's attention the fact that in 1976 this court found that the bankrupt's administration ag trustee of the assigned estate of one Alafaci was negligent. At that time the bankrupt was an Official Trustee, his profession being that of accountant. However, the circumstances surrounding his failure to properly administer that estate do not warrant the refusal of his application for discharge. 1B The Alafaci1 matter was heard by Riley Jd. His decision is reported at (1976) 9 A.L.R. 262. It is plain from his Honour's judgment that aithough he found the bankrupt to be negligent he did not find that he had been guilty of any moral impropriety. Nor did he find that the bankrupt's administration of the assigned estate was carried out in such a way as to advance his personal interests. The bankrupt is a married man aged 49 years. As I have said, he is an accountant by profession. There is evidence that he appears to have been in more or less continuous employment since 1977 but his income has not been such as to enable him to make any significant contributions to his estate; in fact, contributions to the extent of only about $500 have been made. Under cross-examination by counsel for the Official Trustee the bankrupt stated that it is not his present intention to recommence in practice as an accountant on his own account. He said that he makes a living out of performing accountancy work for a few people, most of whom appear to he friends. I have no reason to think that he gave me an inaccurate account either of nis work or of his income. I am satisfied that even if this application were to fail the income which he is likely to earn in the foreseeable future would not be so great as to enable him to make any significant contribution to his estate. ~ on nnn a In the first of his Trustee has reported that the bankrupt were sutiicient for the type of busness He has also reported that the conduct of "his bankruptcy has been satisfactory. years since the bankrupt's not unreasonably wishes two reports to obtain a discharge. the Official kept records which wnich he conducted. the bankrupt during It igs now over six estate was sequestrated and he There is evidence before me that he is embarrassed in the social and religious circles in which he moves by the fact that he is a bankrupt. I accept that this may well be the case. I would have no difficulty at all in granting this application were it not for the fact that the Trustee had reported matters (b) and (c) under s. 150(6) of the Act. Sub-sections (5) amd (6) of the Act provide in part as follows: "(5) The Court shall, if any of the matters specified in sub-section (6) is established - (a) refuse to make an order of discharge; or (b) make an order of discharge but suspend the operation of the order as the Court thinks proper, either unconditionally or subject to conditions. (6) The matters upon the establishment of which the Court may exercise the powers specified in sub-section (5) are as follows: (a)... (b) that the bankrupt has, az ter knowing himself to be insolvent, continued to trade or obtained credit to the amount of $100 or upwards; (c) that the bankrupt has contracted a debt provable in the bankruptcy without having at the time ot contracting it any reasonable or probable ground of expectation (proof of which lies on him) of being able to pay 1t after taking into i consideration his other liabilities ' at the time;" The circumstance relied upon by the Official Trustee as showing that the matters referred to in paragraphs (b) and (c) of sub-3s. (6) have been established are that in July 1977 the bankrupt borrowed a sum of $1100 from Mr Garry William Boyd. There is some doubt whether the amount of the alleged loan was $1000 or $1100. Counsel for the bankrupt argued that I should take the view that the amount advanced by Mr Boyd was not 2a loan at all but was in the nature of a gift. In support of that submission he relied upon the fact that Mr Boyd now makes no claim to the money and, indeed, has expressly forgiven the debt. But, as counsel for the Official Trustee has pointed out, Mr Boyd did in fact lodge a proof of debt and the bankrupt included it amongst the debts in his estate. Further, in an affidavit filed in support of this application the bankrupt says that he accepted the money from Mr Boyd "on the basis of it being a loan". I therefore reject the argument that the amount advanced by Mr Boyd was not a loan. This means that it has to be treated as a debt provable in the bankruptcy for the purposes of paragraph (c) of s. 150(6). 7. However, I do not think 'that concludes the question whether the court should be satisfied, to the necessary degree of satisfaction, with proof of the matters referred to in the subsection. It is clear from Mr Boyd's evidence that he was on terms of close friendship with the bankrupt. Ye says that he and the bankrupt had common church, cultural, social and sporting interests. I should at this stage say that the bankrupt is a member of the Reorganized Church of Latter Day Saints, as is Mr Boyd, and they appear to have strong common ties. The impression I have from Mr Boyd's evidence is that he did not require payment of the loan until such time as the bankrupt would be able to pay. I think that whilst the transaction was very close to a gift it was legally a loan. Nevertheless, it is necessary to have regard to the terms of repayment and although no terms were stipulated in the ordinary sense I think it is a fair inference from Mr Boyd's evidence that the loan was not to be repaid whilst ever the bankrupt had other debts which he could not pay. The bankrupt''s affairs at the time he obtained the loan from Mr Boyd were complicated. It is true that during the Ne course of his public examination he apparently made an admission that he was insolvent. However, he has explained in some detail in his affidavit supporting his applcation facts which might he thought to cast some doubt upon whether that admission was necessarily correct. se a et 8. The point is a fine one, and I need to pear in mind that I am required to be satisfied to a high degree of gatisfaction of the matters referred to in the sub-paragraphs. I do not think on the facts of this case, and having regard to the lengthy material in the applicant's affidavit upon wnich he has not been cross-examined, I should be satisfied of the matters referred to in paragrapns (b) and (c). I should add that even if I had come to a different conclusion and been required to suspend the operation of an order for discharge, I would have suspended the operation of the order for only a very short time. Taking into account all the matters referred to in the affidavits filed in support of the application and in counsel's arguments I think the appropriate order i3 that the applicant should be discharged from bankruptcy. In my view it is proper that the Official Trustee should receive his costs. I order the Official Trustee's costs be paid by the bankrupt. So far ag Mr Baliyck's costs are concerned, whilst his counsel's submissions-nave been helpful to the court, Ido not think that I should order his costs to he paid by the bankrupt. There are two reasons why I hold this opinion. The first is that Mr Balcyck's main purpose in being represented was to protect his own interests rather than to oppose the application. The second reason is that it would nave 9. been known that the Official Trustee was being represented by counsel and that all matters which should properly be drawn to the attention of the court would indeed be brought to uts attention. I therefore make no order in respect of Mr Balcyck's costs. The order of the court is that the applicant is discharged from bankruptcy. T certitc tact 74223 and * iw aad. "> 1 ce Ctra Mtr ee Assoczrate/ fo me en ee tet! ,i Inéustrial Law - Commonwealth - Regzstared organzzation - Rules - Resolutions dv special Meeting of branch that branch secretary guilty of substantzal breacn of the rules, gross misbehaviour and gross neglect of duty - Office of branch secretary declared vacant - Whether proceedings in breach of the rules - Whether a denial of natural iustice - Validation by operation of statute - whether application of validating provision would do substantial injustice. Conciliation and Arbitration Act 1904, sections 171F and 171¢G Australian "lorkers' Union v. Bowen [No. 2] (1948) 77 C.L.R. S50. Norman and Moran v. National Dock Léebour Board [1957] ILioya's ep. 455 Re Compaction Svstems Pty 'Ltd and the Companz 11976] 2 N.S.W.L.R. é < A.C.T No. 2 of 1983 - AN JOHN CHARLES ROLPH v. TRANSPORT WORKERS UNION OF AUSTRALIA Neaves J. Canperr2 17 Aoril 2384 , od a ll at - - wae ~ en —_—— ean ee Nee ed ee ek ee ate att Be eo ee ne pn a ee IN THe FEDERAL COURDT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. A.C.T. 2 oF 1983 DISTRICT REGISTRY ) INDUSTRIAL DIVISTON BETWEEN: JOHN CHARLES ROLPH Applicant AND: TRANSPORT WORKERS' UNION OF AUSTRALIA Respondent ORDER JUDGE MAXING ORDER. Neaves J, DATE OF ORDER: 17th April 1984 WHERE MADE: Canberra THE COURT' ORDERS THAT the applicacion de disnissec. ate DEIN TOR CRORE TONG SOONTS SEDUEN, APES Team WORT SENOS 10 I SNE RETE OPN te ee ee + ee eee anne ee ee - IN THE FEDERAL COURT Or AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. A.C.T. 2 of DISTRICT REGISTRY ) ) INDUSTRIAL DIVISTON ) BETWEEN : JOHN CHARLES ROL?H Applicant AND: TRANSPORT WORKERS' JNION OF AUSTRALIA Respondent CORAM: Neaves J. . DATE- 17 April 1984 REASONS FOR JUDGYENT This is an applicarion by John Charles Rolph ('the applicant") for an order under sectzron 171G of the Conciliation and Arbitration Act 1904 ("the Act'). The particular order sought 1s an order ceclaring thee the application of section 171F of the Act to certain motions declarea carried, and a certain furtner dec- laration mace, at a spacial meeting of tce Tasmanian Branen of the Transport Workers' Union of Australie ee oe ee ee pal ttn tee aot Lata ee tt injustice having regara to the wnterascs of the Unisn, members or creditors of the Union or persons raving dealings with the Union (sub-section 171G(1)). The effect of such a declaration, if made, is that section 171F does not apply, and is deemed not <o have appiied, in relation to the motions declared carried and the further declaration made at that special meeting. The application as originally filed also sought an order under section 171G of she Act in relation to the application of section 171B but the apolicant dia noc proceed with that part of the application and the applica- tion was amended accordingly. Section 171F of the Act, so far as material, provides - ""(1) Subject to this section and to section 171G, upon the expiration of 4 years from - (a) the doing of an act - (i) by, or by persons pur rporting <o act as, a collective body of an organization or branch of an organization and PUTPOTTIing to exercise power conterred by cr under the rules of the crgeniza- tion or branch, or (1L) .... G (b) oe. 6) ' \ \ 7 . the act .... sha deemea to have b e the rules of tn t 1, for all surposes, be en dome im complience wien organization cr branch L e iS) 1 1 1 | { | Tha expression 'coliective sody" us definea in seczion '{ 17la to mean - "Ca) um relacron to an organization — che committee of management or any con- farence, council, committee, panel or other body of or within the organize tion; and (5) in relation cto a branch of an organzzacrion - the committee of management or any con- ference, council, committee, panel or other body of or within the branch." The motions declared carvied at the meeting on 7 August 1976 were motions - . that the applicant was guilty of committing a substantial breach o= the rules or the Union; : that the applicant was guiicy of gross misbehaviour, etn, ' . 'shat the applicant was guilty of gross neglect of duty; . that a vote of no confidence against the era ee applicant be recorded; and wees that in future the Committee of Manage- Me en wens, ment not accept the applicant's nomina- array tion for any position "shatsoever 1a the Tasmanian Branch of the Union. ee El nen aan ate Each of the apove motions was declared to have been carried ananimcusiy. The furiner ceclaration =: relates was a declaration by the cnazrimen the position of Branch Secretary of che qo the Urion orevicusiy helic sv ine apolicane vas vacant. Befora examining wnat took place at the neeting and the events leading up co it, it is necessary to refar ' at the relevant 'ime. ' The objects of <ne Jnion (which was, and us, an : organization registerec Dirsuant co the Act) as set out in i Tule 2 were, in part - | i i "The objects of tae Unzon shall be to uphold the rights of tne combination of labour and co promote, foster and maintain the industrial organizacion of all trans- port workers into one union; and to promote the best industrial interests of all the members in any matter including affiliation with any joint body comprised of trade unions and approved dy resolution of the Federal Coumezl." Then followed a serzes of letztared paragraphs to which ' it is for present purposes smmecessary to refer. Any member who acted contrary co the opjects of the Unzon as set out in rule 2 was ts ce deemed to have failed to abide by the rules of the Union (rule 2A). | Subject to the provisions of tne Act, the > £ supreme conrrol of the Union was vested in a Federal Council constitutec by a representative or revresentatives ee from aaen Srancn Federal Secretary anc the Assistance (sub-rule 5(2) The ila Nan toned aged eet in Eads d ol heen ie echt be mee ean aten a dimes Saeed den beta verte ow smell rrenent whats het ~ cp eee a he aha List eee ht oe el at nd a ett te cnn ae at = _ ae a - = -- ~~ ee Federal Committee of Management (suo-rule 5.c) anc zule Provision was made for the constitution of 2ranches and for the electron within each branch of branch otfzcers (inelud- ing a Branch President and a Branch Secretary) and a Branch Committee of Management which, subject to che rules, was to have control of ali business of the Union within the area over which it was constituted to operate (sub-rules 5(£) amd rules 6 and 30). Rule 254 provided - "Notwithstanding anything whatsoever to the contrary in any of the Rules no person elected to any office within the Union shall be dismissed from ozfice unless he has been found guilty, in accordance with the Rules, of misappro- priation of the funds of the Union, a substantial breach of the Rules of the Unicn or gross misbehaviour or gross neglect of duty or has ceased, according to the Rule (sic) of the Union, to be eligible to hold the office." Rule 37, so far as materzal provided - "(co) The Branch President or Branch Secretary upon receipt of a petition signed by 100 or more financial members, shall cali a special meeting of the 3rench to hear speci- fic charges which shall be clearly set out in the petztizon agains* the 3ranch Committees of Management as a whole, or any one or more members thereor. (2) .AD any masting aels ia accordance 'with chs Rule tne ecciroms ci those charga_ shall de conszderad and ne or cney shall be heard in defence. Tt shall be competant for such meeting to carry 2 metron oF no confidence in any merbers, or all, of crosa charzed. vw fe ne ole anne within a branch to be receivec by che Branch Retu (£) Whenever a motion of non-conilaence has been carried in accordance wi=n tnis Rule, the Chazrzrman of the meeting at which such motion was passed shail declare vacant the position or positions held by the member or Members affected by the motzon and nominations to £211 such position or positions shali be called for by advertisement in the daily press, and the provisions o= Rules 33 and 34 , im so far as applicable, shall apply in che election to fill the position or positions affected......... (g) No petition presented in accordence with this Rule shail be acted upon unless, at the time of being signed, 1t is prefaced with the provisions of Rule 58 (a). (h) No motion under this Rule shall be deemed to be carried or acted upon unless two-thirds of the members voting thereon have voted in favour of the motion." ice Fh Rule 33 provided for nominations for of KH peu iJ i=4 o fficer appointed pursuant to rule 35. Rule 34 provide rh for the conduct of branch elections. Rule 43 provided for the holding of meetings. "(f) Orcinary meetings of each Branch Committee of Management shall be regularly held act a time ana place determined dy 1t Proviéea such ordinary meetings snall be ef cezve iy heia at least ary slxX montns... wee (g) Special meetings of a Branch Commzttee of Managenent nay be held from tite te tire to determine any ~actar vrbich reyuires az ,ert attention. The special reecz i by the Branch Secretary by cir rehy d Sub-rules (f), (g) amd (1), so far as material, proviced - a POL Ie OOP OY eh ee te ee te es vat a "oo he nn re ee el ee ee ae re a J oI ee y Ee hanes ert each member of the Branch Commictee of tlen- agement Such notice shali clearly snow <he time and place of the meezing and the mature c= the buszness to be determined and it shali de conveyed by hand or tele- gram'or postal mail provided the methed of conveyance used stali nave regard to the time and place of the meeting. The Branch Secretary shail act to convene special meetings when the events set out hereunder arise: (i) When the Branch President and the Branch Secretary agree a meeting is desir- able or necessary. (ii) When a majority of the members of the Branch Committee of Management maka a written request to the Branch Secretary or the Branch President. 5 _ Provided if the Branch Secretary is unable or fails otherwise to convene a special meeting the Branch President is empowered to act for that purpose. wees (1) All meetings other than Branch Commitzee of Management shall start not iater than 8 92.a., provided that a quorum 1s present at that time. 1f= no quorum is present at 8.i5 p.m., or fifteen minutes after the time set down for the opening o= the meeting the meeting shail lapse. All meetings shall close not later than 10 o.a., unless otherwise determined by resolution for the purpose of concluding business under dis- cussion. No meeting shall continue after 10.30 p.m. under any circumstance." By virtue of sub-rule 44(f), ac a special meeting called by perztion in accordance with rule 37, not less than 75 per cent of the members -vvho signec th patililon vera requires 5o o0@ Sresent az such neecing and the total number of members praesent as co be not less than 190 in any Dbranen in wnich the mempersri Es "I * 4 = - «1 - Po exceecec Chat =1gure, 15 the relvant time the menmoersai ay of the Tasmanian Brancn was a litcle less tnan 3,790. ! . | | Rate 46 set out the rules of debate. Its pro- visions included the following - "(c) No duscussion shall take place on any motion or amendment unless such motion or amendment is duly vroposed and aZtex the mover is finished speaking, it is seconced. Any number of amendments may be proposed and discussed simultaneously with the motion. (d) When a motion shall have been duly proposed and seconded, che Chairman shall at once proceed to take the vote thereon, unless some member rises to oppose it, or to propose an amendment; but no amendment shall be in order ' unless notice be given to move same before the proposer of the motion has replied." { i | j | Sub-rule 58(e) provided - "Should any member who signs a petition am accordance with Rule 37 fazl to attend the meeting called as a rasult of such petition, he snall be f2ned a sum not ex- ceeding ($20) by the Branch Committee of Management of the Branch of which he is a member, unless he provides a satisfactory reason to the 3ranch Cormictee of Manage- ment for non-attendance at che said neecing. it The applicant was elected to the office of Branch Secretary - Treasurer - Federal Councii Rapres- entative of the Tasmanian 3Brarea 35 che Unlon about Decemper 1973. Sub-rule 6l¢a) of the rules of oan oe iv) Skene . ' Ree ee ee Dede ee amid Steet ak, panne Sie bi ada um the rule s as the of nee of Branch Secretar nj oO Ni convenience I shail aaopt chat abbreviation In tne ordinery course qi events the applicans's cazm of office would have continued until December 1979 when the position would have been the subject oF 2 further election. On 26 April 1976 the applicant, as Branch Secretary, to rule 37 which were received a petztion expressed of the rules of the Union and the signatures of 153 persons so be puysuant appencea to purporting to be financial members of the Tasmanian Branch. After setting out the text of sub-rule 58(e) as required by sub-rule 37(g), the petition read - "Pursuant to Rule 37 of the Rules of the Transport Workers Unzon of & Australia we the undersigned being, together with +t members who have signed identical requests, in aggregate in excess of 100 Sinamczal members hereby require you to comvene a4 special general meeting of the Transport Workers Union of Australia, Tasmanian Branch, to hear the specific charges against the Branch Secretary, John Charies Rolph, as set out below and to take sucna decisions as may be required thereon anc the rules may permit. - John Charles Rolph being the Branch Secretary of the Tasmanian 3ranch of the Transport Workers Union of Aus- tralia (beazng an Organisation of employees regsstered under the Con- cilzatzion and A as amended,) wa commit a subst az rules 2f the sa was gull z U bitratzron Act 1904, lov oF and als al oteach of the Organisation or S miszehaviour oz ee ee at ale ete mene aera a was guilty of gross ne durcy by tne following PARTICULARS 1 The said Jonn Charles Rolon did on_as about the 14to day al Mazchk, 1975 dismiss a paid employee, Mrs. leanor Margaret Hunter without che authority of the Brancn Committee of Management of the Transport Workers Unzon of Australia Tasmanian Branch contrary to Rule 30 sub rule (f£) of the Rules of the Transport Norker Union cf Australia. 2 Additionally or alrernatively, the said John Charles Rolph did contrary to the objects of Rule 2 of the Trans- port Workers Union of Australia fail to uphold the principles of the com- bination of labor and to promote foster and maintain the industrial organisation of all workers in that he employed non-union labor in employing one Pam Lee to perform the work of other employees on strike and later locked our. 3. Addztionally or alternatively, the said Johm Charles Rolph did contrar- to the objects of Rule 2 of the Transport Workers Union of Australia fail to uphold the principles of the combination of labor and to promote foster and maintain the industrial organisatzon of all workers in that he employed non-union labor in employ- img one Lindy Hill from 8th Decemper, 1975 for a period of approximately 3 moncns in a non-union capacity. ' 4 Additionaily or aiternativeiy, the said John Charles Rolph did contzary to the objects of Rule 2 of the Rules of the Transport Workers Union of Austval1ra failed (sic) to uphole che principles of the comoination 77 labor um that he cisaissedi.ircs Flaanor " garec Hunter while sae vas on sc over conditions of employment an WOrKxing coOnclteLons £ ' ee LL al ee tt | } i ] i "| { 7 : - } i - 8 { i 9 } \ i t | aes ott aateomannbanatibans Additzonally or alternatively, the said Jorn Charies Rolpk did contrary to Rule 43 of tne Ruias of the Traus- port Workers Unzon of Australza fail *o convene a meeting of the 3rench Committee o= Management wher reauested bu notice given on the 20th March, 19756 to the President by the majoruty of the said Commirtee of Management so to con- vene 2 meeting as a matter of extreme urgency. Additionally or alternatively, the said John Charlas Rolph dia lock out one Eleanor Margaret Hunter on and after the 29th day of March, 1976 from her place of work at the offices of the Transport Workers Union of Australia, Tasmanian Branch at Trades Hall, 219 New Town Road, New Torm. Additionally or alternatively, the said Jonn Charles Rolph did lock out one Eleanor Margaret Hunter on and after the 29th day of March, 1976 from her place or work at the offices of the Transvort Workers Union of Australia, Tasmanian Branch at Trades Hall, 219 New Town Road, New Town contrary to an order of J.W. Muley made at Hobart on the 26th day of March, 1976 pursuant to the provisions oz Section 50 of the Industrial Rela- tions Act 1975. Additionally or alternatively. the said Jonn Charles Rolvh did contrary to the Po1sons Act 1971, as amended, bring on to the premises of the offices of the Transpor+ Workers Union of Aus- tralia Tasmanian Brench at Trades Hall, 219 New Town Road, New Town a pronz>dited substance -vithin the meaning of the sazd Act. Additionailv or aiternatively, the said John Caarles Rolpn cid knovingly present to the Branch Committee of Managemenc a photocopy .F an sucr Report signec oy S.?. Dwyer A.A.5S for the year ending 3lst Decemper knowing tnat tne said reporc had deletea from 12 certain woras to "7ut -~t - 3 lo (5 +o are} enh. , 2972 ach a I tn ne MCL 42.47 uw ib ta HO ou nd p a" fare ey {ov G1 UG nh rity oO re) Q {= Noth ot a 'O fe: te . 4 tee . toa ce eer ete ee ee ee re lt i a arta ~ the "zords quaiificat n ment 2= in it td The third para report which p follows:- £ the saic m reacs as 'The qualzfication to whica I refer, 1s un respect of Rule 38(e)(v) which deals with the payments of accounts and which gives the Branch Committee of Management certain powers. The Branch Committee of Manegemensc acting on this has passed a resolution that ell regular recurring expenses or accounts may be paid without prior re=- erence to it; in my opinion this is too broad, end I feel the Branch Committee of Management should define the expenses or accounts to which thezr resolution refers, 1f£ for no other reason than the sake of clarity.' 10 Additionally or alternatively, che said John Charles Rolph did credential to represent the Transport Workers Union of Australza Tasmanian Branch at the conference of the Australian Labor Party Tasmanian Section persons who were not members of the Transport Workers Union of Australia and persons who were not eligible for membership thereof and stated in vritang to the Australian Labor Party Tasmanian Section that these vevsons were chosen at a duly convened meeting o= the Union hela on 23re day of September, 1975 wnen in fact ro such meeting took plece We request that the meeting be held at the Trades Hall, 219 New Towm Roac, New Town on 7th May, 1976 commencing at 7 30pm. If within sever davs 25 recezpt of fis from you have mot an ct to convene the meer c zs intended co take such measures as avallabie under the Pulses and/or = ation and Arbitration "Acc =9 ensure = special general teeting of tne Erancn or ahd and ne Al A lee nee ree Ley CS en one ee a Le the Rates stare tane dl apne Ter ere Weve Seal Sena nr Ota SO OO TPE Or ' a te ry fe) rt a 2D < fa is] au mn fo , w n 'U - fo Q w The speciel meeting proceedings were commenced in che Australian Incustrial Court by rule tc show cause 1ssued on 3 May 2975 at the instance of seven members of the Branch Committee of Management. The proceedings sought orders under section 141 of the Act against the 3ranch President (Mr. Harding) and the Branch Secretary (=he present applicant) that they perform or observe the rules of the Union by con- vening a special neeting of the Branch Committee of Managemenc for the purpose of taking decisions concern- ung the arrangements for the special meeting o= the Branch the subject of the petition and by attending and remaining in attendance at that meeting. On 11 May 1976 an assurance vas given to the Court by Mr. Harding and the appilucent that, subject to the petition being found to be in proper fo-m and in accordance with the rules, the special meeting of members would be called sromptly. In the event the Meeting was not called, Mr. Harding and the applicanc claiming that the petition did not conform vith the cules. The matter "ras further heard before the Court on 10 June 1976 ana sucsegueant days. The rules xs ee re ee ne Meet ee i lt snow cause vas amendad to sermic an order cc be sought that Mr. dard or observe the rules of tne Union by convening a special meeting of tne Tasmanian Branch at such tine and place as might be determined by the Branch Committee of Management. The 1ssue litigatec before the Australian Industrial Court was whether the petition nad been signed. by 100 or more financial members as required by sub-rule 37(¢c). The Court conclucec that it had ane on 25 June wo at Fach Oe =e toe ee ee ee 1976 made an order that Mr. Harding convene and conduct as chairman a special meeting of the Tasmanian Branch to be held at 6.30 p.m. on 16 July 1976 at the Polash Hall, New Town, Hobart, and gave various derailed directions for advertising and conducting the meeting. A meetong vas held oursuent to the Court's order. What took place at the meeting 1s rafarred to in the judgment of the Australian Industrial Ccurt in Rowling v. Harding (1976) 27 F.L.R. 349 at po 374- In the event the neeting closed at 10 30 p.a. (see sub-rule 43(1)) withour thaeving complecad the hearing 1 Tl ct cr p o of the specific charges contained in the pe J fu J tt ry) wu Ac che tine tre neacinzg ¢clasea 72 20 alte. addressing 1t =n relacion to the natters al hin ra , Pa oO. tezec azainst ROTO at TOY OTT ae WTS Further vroceedings then ensued in the Austraizran Industrial Court. The matter came on for further hearing on 27 July 1976 and on 28 July 1976 the Court gave directions as follows - "A, That the respondent, Harding; do perform and observe the rules of the organisatzon by convening a special meeting of members of the Tasmanian Branch to be held at 10.00 4 a.m. on the 7th day cf August, 1976 ; at the Hobart Town Hail to hear oe specific charges set out in the sO petition signed by one hundred or 7 more financial members of the Tas- manian Branch o£ the organisation : being exhibit 'B' in these pro- mt ceedings. B. That the Respondent, Harcing, at the expense of the Tasmanian Branch of the organisation, comvere and conduct as Chairman the said Meeting in accordance with the rules o= the Union and in particu- lar rules 25(A), 32, 37, and 46 un accordance ~zith the following irections - FT, ae SOO OWE OES OES Wee OORT Ter ; 4 1. NOTICE of the said meecing { shall be given dy advertuise- { ment in the form orf the first schedule hereto to be inserted um the issues for the st fas "ntsc of July, 1375 and tne $ Gay of August, 1976 Et wa in al al nant wt ee el ' ca a Het on SY eee $ o) 5) 2 the Hobart tereury, the Laumces maminer and tne Burnie Advocate n apers. aT LO bo ADMISSION to the meeting shall be only upon Dresemtatzion to tne Depuey Indusc- rial Registrar, Mr. Coates, or an assist- ant or assistants nominated by him oF a 1976 membership medailion or an official recerpt issued on or before the saconc day of July, 1976 for the full amounc due from the member concerned in respect of his contribution for membershzp of the Tasmanian Branch for 1976. : THE Respondents, Harding and Rolph, shali by 5.00 p.m. on Thursday the 5th. day of August 1976 forward to tne said Deputy Industrial Registrar six copies of a list of financial members of the Branch 4s at the 2nd July, 1976 arranged in alphabetical order. Upon a member presenting his medallion or receipt seeking admission to the meeting, the said Deputy Incustrzal Registrar or his assistant shall tick the name where appearing on the said lust. The Respondent, Rolph, and the applicant, Mayne, may each by notice in writing to Mr. Coates appoint scrutineers equal in number to Mr. Coates and his assistants 4. THE Respondent, Harding, shall dec*are the meeting open as soon after 10.00 a.m. as he is advised that 114 of those nenbers who signed the petition are present at the meeting. 5. THE Respondents shall arrange for copies or the said Perition to be avatrable for members at the meeting and shall auvise members of this at the opening of the meeting. 6. THE Resvondent, Uarding, shall use h best andeavours to conmauct the mee un accordance vith the rut es havin regard to the implied Provision ch tra requiranent DE naturel shall se observed ang to co meeting so far as possible and efiacecive manner vith a viev ant carrying oct of tna ousiness of = I a. eens pe ek we pk ee de he Respondenr scali in particule: accest any moczicn duly vroposed and seconced and any amendment prover ly proposed to any such motion as to 'the procecure to be acoptac at the meeting. The respondent, Harding, shall accept any mation of dissent aoved 2n accord- ance with Rule 46(m) and taxe such steps as ere appropriate to allow tne motion of dissent to be dealt with. The Respondent, Hardzng, shall accept any motion for the adjournment of the meeting moved in accordance with Rule 46(n) and allow the same to be put to the meeting. AT the coneluszon of the debate and discussion on the charges in the said petition, if any resolution is moved finding the Responcent, Rolph, e1cther guilty or not guilty of any charge or charges the Respondent, Harding, shall put the resolution to a vote. If a resolution finding the Respondent, Rolph, guilsy of any one or more of the charges specifzed in Rule 25(A) and @ motion of no confidence in the Respondent, Rolph, 1s then moved anc seconded, tne Respondent, Zarding, shall then allow such motion to be put to the meeting. Suca a resolution or motion shali. be deemed to be carried only if two-thirds of tha members voting thereon have voted in Zavour o= the motion. A full transcript of the proceedings of the said meeting shall be made 2.v Mx. Nacholas John Azmmstrong or such other person as the said Deputy Industrial Registrar may appoint. The Deputy Industrial Reg2s trar shall arrange for a transcrizt to be pre- pared and a copy <nereof shall be given to the Respondent, Rolph, anc to Mr. C.W. Mayne PARAGRAPHS 6 ime responce colvenzten= at PU + ia r ra) ad ee en et tc ee \ }i meee oe Jed ge tee ee hamrwennse The Csurt reservec liberty to the parties te apply to Pi rend the Court for such furcher or other directicns as they mignt de advised, The Court, by majority, hele that the ordars origz=nally sought in the rule to show cause issued on 3 May 1976 should not be made, the Branch President and the Branch Secretary being under no obligation to call a special meeting of the Branch Committee of Management for the purpose of czaking decisions concerning the errangements for the special meeting of the Branch to consider the charges egainst the applicant. The Court, however, ordered that the rules of the Unzon be pexflormed and observed by the holding of an ordinary meeting of the Branch Committee aq of Management at 9.30 a.m. on 31 July 1975. The applicant was made aware on 28 July 12 of the orders made by the Austrai1ian Industrial Court on that day By letter dated 30 July 1976 addressed to Mz. Harding the applicant, ng yeferring to the order re- quiring a4 meeting of the 3ranch Comittee af Managenmenc so be held on 31 July 1976, said - "I seek therefore that the recora should show that I totally and complerely resect such unjustii1able action o= such Court, and I aake ut abundanctiy clear hereby tnat any resvect chat I nay have nell or 2tptessea in 325 m5 sucn Court im tnis matter, 2 now withous an,' veservations whatsoever witndraw anda revoke the same forthwith, anc give notice herabr thaz < shell ama ac stand in conzemot "fF sucn @ rave of justice Yurh gerlous regary anew we echambiastabeatns tanSstien Getta dotske ree ', ' : Py renee Seer Das Seve] © Oe DOES POS Sree Wf a =u . FON aR SOT NT Oc WOR a Te Fe STO Matinee. a ee at 1976 read consideration of this metcer and its ismplice- tions = therefore and co herepy tender end give notice of my resignation fortawita, Irom the elected office of BRANCH S=ECRETARY-TREASURER- FEDERAL COUNCIL REPRESENTATIV= in tne Tasmanien Branch o= the '-SANSPORT WORKERS' UNICN OF AUS- TRALZA' an organrsation ef emplovees reszisterec and incorporated under tne Australzan 'Concz114- tion and Arbitration Act, 1904-1976." "This action by myself in this matter, will allow such off1ce to be contested and derermined by each and every eligible member of the Unzon, by manner o= a secret postal ballor." 4, Mr. Harding replied by letter dated 4 August which the applicant received probably on 5 Avgust but certainly prior to 7 August 1976. The reply "Tamin receipt of your letter dated July 30th 1976 in which vou spoke of resignz- tion from the elected office of Branch Sec- retary Treasurer, Federal Council Representative in the Tasmanzan Branch of the Transport Workers Unzon of Austraiza. "As you will no doubt be aware uncer the rules of our Branch ou are obliged to give 28 days notice in writing of your intentzon to resign. "I desire to point out that insofar as you intended your letter to be an actual cenaer o resignation that the same has not deen and ce be accepted as an actual resienacion. "In the circumstances, unless by return nai you indicate to the contrary your letter treated as aque notice wrcer the rules of your intention to resign aitex the exoiration of 28 days from che 30ch July the date of your lectte "Tn rhe neenctura, rhe Ge Brancn w1ili, as orcered sy tr 19 00 a.m. at the fodarc Tom Morning Auguse "th. 1376 Yo of the 3ranch anc the ~eeting oragered. I: you 13st to .e h you shoulu attanc." At a ee oa tee et et ard Stanvim, Solieztors for the aprlicancs im "he sroceed- ings in the Austral.an Incustrieal Court to "nica IT nave referred, addressed a letter to Mr M.N. Cooper, one of licants 1n those proceedings, giving acvice in yelation to the meatung to be held on 7 August 1976. I do not find 1f necassary tp refer to the detail of that letter. There is in evidence before ne a transcript of the proceedings of the meeting on 7 August 1976. Atter some preliminary remarks Mr. Harding, as chazrman, declared the meeting open. Mr. K.A. Crisp, a member <4 of the Branch Committee oF Management, presenced the case in support of the petition. de began by reading the petition to the meeting. Ee then called Mr. R.V.F. Young, a member of Messrs. Jennings, Ellictt and Stanwix, , ' Solicitors, to speak to the meeting in relatzon to the allegation in paragraph 9 of the particulars set out in the petition. After Mr. Young had spoken ana answered wv os nm e re) ral r o questions put to him by members, Mr. Crisp r meeting a statutory declaration made by Me. J 5. Foley directed co che matter referred to in the same pazrag raph ' A (a We ne OnE nEy DOT NVs Tins Cran Tea TT STOTT CORO ODN OREO: SOOO un similar terms to chat of Mr Foley. Mrs Huncer vas ecallea bezore, and spoke to, the neeting. A member from Launceston then suggested to the chairman that a vote be taken whether the applicant SPT Ee WTO 2 Wane Or was guilty or not guilty of the matter aileged in para- Pua eenrens graph 9 of the particulars before considering materza velating to other paragraphs of chose particulars. The transcript of the meeting then records-che following - "CHALRMAN : But prior to dozing thac I suggest, maybe, that we find out if John Charles Rolah is in the building and he be given a chance, or an opportunity, to answer that charge. I think this is a reasonable request with due regazd 'to natural justice. So L'll ask somebody please - Clarrie Mayne, would you please ascertain if John Charles Rolph is within the precincts cf the hall? VOICE. John Charles Rolph is not avarlable. CHAIRMAN. Gentlemen, you have heard the report Jonn Charles Rolph is not in attendance to defend himself so I wril now accept anv : resolution that you may wish to put to the - chair." ' Pont ay Mr. M.N. Cooper gave avicence berore me, whic I accept, as to what occurred when the chairman asxed that 1t be ascertained whetner the applicanc was within the precincts of the hall Mr. Cooper said - "Mr. Parish, who was ome of the members attending the meeting, and has a precty good voice, as askac Io - 1 de nor brow rsherner he vas asnec there arc cinmen, 3-5 1t was his resvonsibzlicy to do any cali- - ing that aac to be done He cid cthac in the hall, down the stairs end on tre steps Of the Towm Hatl. Is tras ravortea S57 hin that John Charles 2olpn was not presenc " ane telnet teat kn dialer he Atala D nea et Savi ell om ee dine th ak teen eee —-. oo a ee - ne ' "hear each on is) fe The motion that che ieeting rg =3= in 1ts entirety te the extent of voting on 12 before ve proceed to anorner charge" lapsed for wanc of a seconcer. _A motzon thar "all charges be heard and at tne conclusion o£ all charges a vote be taken" was then carriec. ' Mr. Crisp referred the meeting to material relating to what was allegec in pdragraph 1 of the par- ticulars, namely the action of the applicant in dismzss- ing Mrs. E.M. Hunter, a pazd employee of the Union, on or about 14 March 1976 without the authority of the Branch cra Committee of Management, an action sazd to be contrary + to sub-rule 30(fF) of the rules of the Unicn. That sub- rule provided - "ALL paid Officers, Organizers end employees of a Branch shall de subject to the control and direction of the 3ranch Committee of Management as expressed through the Branch Secretary." te i) In relation to that allegation Mr Crisp referred the meeting to the relevant rule anc the reasons given by tha applicant to the Branca Cormittea of Menage- Fh Mrs, ment on 13 March 1975 to support the dismissal of Mr Hunter. The meeting was informed chat che Commitcee did not regard the reasons acvancec 4s surficis i) a a & cr cr ; fp a ROtTwWLEASTANGLN, che enpress dismissal and hanaed 1c to Me T Goodsell anc llr. 7 nee Menetetefetebelel Aint neni Canario eee sdb nthe oe eo. ahs Ane Bede ole mde a Mr tn - tag a ro eb the SC te tl ll RR ST es tne ay ' dees ise rele. ve sant nel a. he aot, as wes the notice of cismissal signec br the apolicanc on 14 March 1976 and a further notice of dismissea 29 March 1976, Mrs. Hunter also ans-vered questions relating to the matter put to her by Mr. Crisp but it is apparent thac much of what Mrs. Hunter said related to the reasons given by "he applicant cto support the notice dated 29 March 1976 and net she notice referred tc in paragraph 1 of the particulars. Mr. Crisp made passing reference to paragraph 2 of the particulars and then referred to paragraph 3 thereof, reading in support of that paragraph a letter addressed to the Branch Committee of Management by che Tasmanian Branch of the Feaerated Clerks' Union of Australia. In relation to paragraph 4 of the particulars, Mrs. Hunter answered questions pur to aer by Ur. Crisp and by members from the floor. Mr. Crisp made a statement to She reeting as to paragrash 5 cf the particulars and Mrs. Humcer spoke con- cerning paragzapns 6 and 7. Mr. Crisp then mace short statements concerning paragraph 2 and varagreph 29 and er rer ee -- a rt on y vambDareetitt Leen nets ten Ant rte A te -— ile ee ae ett | tet "ll. what un fact 're do fina is that the Secretary has sacked victhout authority, wathour due cause has engaged in lockouts, has employed non-union labour and has not attempted 2m any way to resolve the disdute. It sounds like an employer, one of tne worst you coulc find, we are talking abour. I find 12 very aistressing to Sind that in fact we are talking about a Union Secretary. So without further ado I will turn it over to the meeting now 3o exercise their pre- rogative to vote on any of these mattczs." The first four 2f the notions to which I have already referred, shat 1s ta say, the motions relating <o the applicant's guilt om tne charges of committing a substantial breach of the rules o= the Union, of gross misbehaviour and of gross negiect and that of no confidence were put separately to a vote ana eacn was carried unanimously. The chairman tnen, pursuant to rule 37, declared vacant tne poszt1ron of Branch Secretary of the Tasmanian Branch or the Union. The moticn concerning the non acceptance in the Suture by the 3ranchn Committee of Management of any nomination from the epolicenc= For any position in the Tasmanian Branch was chen put ana carried. The meeting vas then closed. In consequence st the being deciarec vacant, an glection for that cfirce ~-as nelle On 24 September 1976 Yr K A. Crisp vas ceclared elecrtes unopposed. In 17 Novembec 1975 "ir Cr1so s_dbmizttes bis Th aon i el A eR akc at Minne, Se welt resignation which, ancer <cne rules, tcok expiration of 28 days thereafter. Mr NN. Cooper vas appointed to administer the Tasmanzen Branch pending <=hea holding of a further electian. He was elected cnappaseac as Branch Secretary in or about May 1977 and was rea-electec to the position 2n 1979 and again in 1982. Sub-section 171G(2) provides that the Court may make an order under sub-section (1) on the application of the organization, a member of the organization or any person having a sufficient interest in respect of the org- apization. The applicant's standing to make the oresent application was not challenged. To support the contention that tvhat was done at the meeting on 7 August 1976 by way of funding the apali- cant guzity of the cherges lard against him was not a proper exercise of the power conZerred upon the meeting dy or under the rules of the Union, tne applicant asserted that there hac been a failure to perform or observe rule 25A, sub-rule 37(e) and rule 46 anc that there aaa been < failure to comply with tne applzcaple principles of natural justice. Stated 1n that way the question whether there had been a failure to comply with the applicable principles ) Zo onacural rustice cvpssaTts to be a seDarvate tT Leet ir iraq Ga that concerning che farivre to verfor> or observe the rules In cruch, however, chev are' but aliferent asceces of tne seme cuestior For the orinciplas of natural ' - - : are applicabie arise as a necessary i1mpiicatic | | ji { | | terms of the rules themselves. The rules, on the1r prover comstruction, requixe, and this was mot the subiect of dispute, that a person in the situation of the applicant have proper particulars of that which is allegec against ham and an adequate opportunity to present his defence — and that the meeting called to consider his guilt reach its decision honestly anc in good faith. The general principles to be applied are convenrently set out in the following passage in the judgment of Dixon J. (as he then was) in Australian Workers' Union 7. Bowen [No. 2} (1948) 77 C.L.R. 601 at p. 628 - "It is important to keep steadil; in mind that we are cealzng with a domestic forum acting wader rules resting upon a consensual dasis. It 1s a tribunal thac has no rules o£ evidence and can 1tnfom itself in any way it chooses Members may act upon tnezr om knowledge anc upon hearsay if they are sacisiied of the cruth of what they so learn anc 12 they give the member with wnom they are cealing a prover opportunity of answering the charge and defending himself. The tests applied co juries' verdicts, nranely, wnether there was evidence enabling a reasonable man Sfimmactive or 'shether upon the evidence a f2rnding vas unreasonable, have no place in the exemination of che validity of svch = dorestie tribunal's _ decistors Bar €f2 TILoenal 1s dounl ce 'act honestly, that 21s to say 1 aust have an honest cpilnion that iat the trerber before 12 did an 1cs cecision must real or supcresed, and not for an ulterz motzve"™ faa ee FO Ta an Pt srt en Dance a Morman and Moran v Neztironel Docr Labour Bo ty {4 n ) © Vy BR Ww Oo fh Lloyd's Rep +55 tine cb tee bine = o KR 'oO mM sod uw i Attention was directed to the form of the petition A. in that 1t stated in the alternative the charges allege against the applicant followed by 10 paragraphs described as "Particulars". It was submitted that the petirion was defective in that 1t did not convey to the applicant which of the alternative charges was being alleged against hin nat it did not iacentify which of the particulars related to each of the alternative charges alleged. Further, weesdle abate 2 ee AL Hcr is) < 1t was said that the particulars, even if found proved, > were not sufficient fo sustain any of the alternative charges. In my opinion the petition provided a sutficiant foundation for the proceedings of the special meeting of the branch of the Unzon held on 7 August 1976. That is not to say thac the form of the petition mey not droperly be the subject o= criticzsm. It is, zn my view, undesirable wes cna tet rine tne that charges be stated in the alternative. Further, che particulars of each charge should be set cut im such a way that the person charged can be under no doust "hich specific incidents axe relied upon as supportive of each charge. However, having said that, © am satzisfiec tract e@cLinton vas eel tent at hit ns ab tenance stad malate cae te c Hs ae) Ry t (b a fat fv cr {b tt u ho sd ee ee ~ er a oe ee - - ats H that the specitze matters alleged against the applicant i ware such thar ther cold, 2£f proved, sroperly foumd the | charges alleged. "Yrether those matters wera proved and, Zi so, whether they amounted to a substanmtzal breaen of the rules, gross misbehaviour or gross neglacr of duty was, Of course, a matter for the special meeting to deternine. da ee oe - It was submicted by the applicant thet, as noc more than one third of the members of the Tasmanian Branch of the Union resided in the Hobart district, the meeting pa Le nt leer, should not have been held in that city. He also submitted that he had inadequate time for the preparation of his defence. As has already been said, the meeting was held pursuant to the order of the Australzan Industrial Court oa wanes abet tee! made on 28 July 1975. The Court fixed the time and place ma Paes of the meeting The applicant was represented by counse. before that Court and so [ar as appears ro obrection 'vas raised as to the venue of she meeting sz the cate upon which 15 was to be nelc. Having regard =o =ne history of the matter and, in particular, to the circumstance tnat the applicant had recerved the perition some ~onths Sefore and had at the special meeting held on 14 Juiy 1975 a embarked upon his defence to some of the allegatzons se ahaha Ll he OL net tnt et Ae te a out in the patLCion, =nera is in My view, AS sLIstance aa Cn2e SsuImMLSSiono 7 Avguse 2974 dic noc reer nis aafenca Alitaa ca tors i ee, a4 rcs) ra a Y t a hi) wu w fu BP fL'y ue fr it iT {D rd m o ca tH i on ")Io fl 's patina tts te ane vont nae pe s, sant bere Aan ni th alll, fam tilde wet! Merete bhe eevee on be ~: S32 ager Se Ur Dry re wee SO Dar Wer an tes) Dae a a a i tl te Aad was a submission tnet the meeting shculd heve been adjourned to defence or at least so that 7t might ascerta:n and consider the reasons for the applicant's non-arctendance on 7 August 1976. The srules, on their proper construction, co not Mean that a speciral-meeting of a oranch camnct proceed to deal with matters raised in a petition presented under rule 37 if the person charged refuses to put forward any Material in his defence. The rules mean no more than that the meeting must afford to the person charged an adequate opportunity to put such material before it. The applicant did not argue that the meeting was precluded from proceed- ing because of his absence from the meeting but contended that, because he was not present, the meeting stould have been adjourned to a latar date so that he might then present his defence or, alternatively, so thac the meeting might consider why he did not attend on 7 August 1976. Lt 1s clear that the applicant was aware on 28 July 1976 that =the meeting vas to take place on 7 August 1976 and that 1ts aurpose was to consicer the charges laid against him. Ye was fZaniliar "ith the rules consider the question of his gurlco cr 1nmocence of the enarges and tcac, 1£ founc guils;, che ~eering co ld ae rasult im tne office oF Brancr Secretary 7bier held being declarec vracant. he referred to as a himself in the office of Branch Secretary, an attack which included harrassment ana threats to himseir and ais family. He said that by reason of those matters and the heavy vork load arzsing from undustrial éisputetion involv- ing the Union, he was not in a fit shysical or psychological state to attend the meeting on 7 August 1976. He Further said that he had spent some part of that day in bed chough he agreed that he had not consulted a medical practii1oner concerning his illness prior to the meeting. He said he did sa lacer in Augusc or September 1975 and "ras diagnosed as suffering from glandular fever. No medical evidence was called to support any of these starcements. In the course o2 cross-examination by counsel for the Union the following exchange took place - oo "Q, You resolved some tume before 7 August chat you would not attend tne general meeting? A. Yes. Q When did you come to that conclusion? A. I would be unable to say Q. Certainly 1& "7as om or before Thursday 5 August" a T contd aot " De oefore thac The appizcant also referred to ihe cecisionm rot tf attanc che meeting as é é tathnainlnchatel te ede nee ee Awa a Cum OTT Tan DST, Cn tOnt BFW STS TOR OS OEDT I UUNITY SEn OST BND TNO DS ERERY, WO Bt DA Tae 1) SOT ny a On PR ae ce ee eae me The applicant's conducs in relation to ine hearing of the charges alleged in che petition is oF a pattern. The meeting held on 16 July 1976 was to commence ac 6.30 p.m. but ic did noc commence unrtii some time later because of the difficulty of ansuring rules the meeting could not continue beyond 10.30 p.m. and the applicant took the view chat if he could ensure that the meeting did not reach 4 conclusion on the charges before that time the meeting would close and the petition would lapse. In fact the meeting did close without having heard the whole of the charges and, indeed, without having heard all that cthe applicant wished to say on the three paragraphs o= the particulars thet vere then before the meeting. I am satisfiec that, when the Court ordered that a further meeting be held to consider the charges alleged in the petition, the applicant rescived that he would not attend in the exnectation that the meeting would in some way miscarry and vroceedings could be taken to have any decisions taken set aszde. The applicant made no attempt to notzty the meeting that he could not be present or to seek an acjournment of meeting. ut. In chose sircumstances I cannot é@ég res o7net tne meeting vas under no obligatzen to adjourn co ascertann The applicanc also sought to impugn the zs —] proceecings of the meetimg mela on 7 Augusce 1976 b S J drawing attention to the absence in the rules of the eal against the finaings made Fh Union of any right of ap ue) by the meeting. In my opinion there is no substance in this submission. Nor 1s there, in my viev, substance in the further submission made by the applicant that hk oO was denied natural justice for the want of ean express warning that if he did not attend the meeting consideration or his guzlt of the charges laid against him would vroceed in his absence with the possible comsequence of his removal from office. I have no deubt chat it was obvious to hin thac this would be the course events would cake if he t chose not to attenc. Tt was also submitted chat the meeting voted on ib motions not duly proposed and secorndea b:7 tempers in accordance with rule 46 of the rules of the Union. Ther i) 1s no dovbe that there vas sone corfusicn over che form of the motions upon 'vyhich the wreeting sas tc vote. Aftar Mz Oris> sompiercen what .2 wisael "2 sa° 5 suscert oui Mr Webperly, that 2 vote ce tazen vaetrer tre applicant was guilty or not suilcy cf cli che crarses ag2insc ain [ Nets ae CARD eee deel tre etal Mactan Atenas team a oe ine Se ates wo renane ln ter anne fl. edo by Ur ea oy .-r. a An amendmernc vas meved by wr. Mayne, seco Parisc, to the effect shat a separate vete be taken in 'a fo th Ny aq s. That emendment was carrzred-— A metion was-chen put by Mr. Mayme, seconded dy o respect of each of the 'tnree cha arish, that the applicant be found guilty or not guilry of committing a substantial breach of the rules of the Union. That motion was carried but it was then poinrad ea @ applicant we eut that-the vote did not determine whether *= was guilty or not guilty. The mover o7 the motion then apparently clarified the matter with the minute secretary. The transcript of the meeting then records as follows ~ "CHAIRMAN: The mover of the motion and seconder have sorted it out now and 1t has been moved by C. Mayne and seconded by R. Parish and I put it to you as they request that I do - Do you find John Charles Rolph guilty of committing a substantial breach of the Rules of the Transport Worxers' Union cf Austraiza? All those that do so find please raise their righe hand. CHAIRMAN: Gentlemen, you may lower vceur hand now. All those who wish to find hin not guzlty of that charge will you please raise your left hand. Well gentlemen, on the first charge there 2s a unanimous decision that you have found John Charles Rolph guilty of committing a substantial breach of the Rules of the Transport Workers' Union. The second cherge 1s Do you fine John Charles Rolsh guilty of gross misbehaviour? If you find John Charles Rolph guilty of gross misbehavisur yould you please raise your right anand. Gentlemen, i= you fine Jonn Charles Roloh not guilty vould vou alease raise your lef= hanc Gentlemen, 12 18s again a unapirois cecisicn On the thira counc, gentlemen, co you find John Char es io! gurley of gross tect of duty" I se sé your rignat hanc Gearcler ra 'U be] ° es Rise eg =o ar a on a pan rains ene a ey i a Lie la your unaninous ," The transeript does not expressly record Mz Mayne and Mr. Parish as the mover and seconder of the motions concerning the applicant's guilt on the charges of gross misbehaviour and gross neglect of duty but, in my opinion, tne correcr interpretation to be placed on what took place at the meeting is that Mr. Mayne moved and Mz. Parish seconded each o= the three motions concerning the applicant's guilt that were passed unanimously. In any event, eaven 15 this ware not the true vos2tron the meeting by its unanimous expression I of opinion waived any irregularity in the manner in which the motions were put before 1t. The applicant further submitted that, in o fe) rh cs fy o fo tr resolving that che Branch Commit accept any future nomination of the applicant for an office -z1thin tha branch, there had been a perform or observe the requirements of rule 33 "7hich providec for nominatirons for an office -2thnin che branch to be received by the Branch Recurning Officer he a tet ee ee oe. ie nab mk Nat +) Foe Oa ORE ORT SOPOT NOT ' CRED) Cy SW SSE PORE TONY AUF ON IT | Sa Oe BOE TOOT Ke WOK 1 at nee Pree eres Officer who, had ne declined to accept @ nomination oF th appolicarnc based solely upon the resolution, vould have been un breach of his duty end night have been restrained fvom.sc acting. It is, howaver, apparent on the evidence before me that the Branch Returning Offzcer did uot, on the occasion 1n 1977 vhen the applicanc nominated for the positio of member o£ the Branch Committee of Management, act upon che view that he vas precluded by the resolution from accepting such nomination. The nomination was in fact accepted and the applicant was defeated at the ensuing electzon. No instance has been proved in which an atterpt to nominate the applicant for an office within the branch has been frustrated by referance to the above resolution. In my opinion the resolution was one -yhich could have no effect but 1 has not been shown to Rave been one taac ic was outside the power of the meeting to enrertain as being contrary to any of the rules of the Union. I4 For these reasons conclude that 'the applicant has failed to establism <nat there was any relevant failure to perform or observe the rules of the Union, including the umplied principles c£ natural juscice to ~yhicn I nave referred, Yad T seen TF tae torcrcrr vln Ife 7Le27t161 Vi r7oulad have arisen ~vhecher the asplreanc Court, wm terms of sub-sectzror 17itfi), co) vw ro Pa rere i Se tl elcfectec sy sect from the holding injuscice having members or creditors of the organization or persons having dealings with the organization The legisiatzve scheme enactec 1n sectious 171B, 171F and 171G 1s to be contrastea with that vrovided by sectron 171C. In the case of the Latter provision th Court is empowered, where 1t finds invalidicy as cefined in section 171A, to make such orcer as it thznks fit to rectify the invalidity. Before making such an order the Court must satisfy itself that such an order would not do substantial injustice to the organization or to any member or creditor of the organization or to any person having dealings with the organization. On the otner hand sections 1713 and 171F are designed to validate aurcmatzcally by operation of the starute acts which would ctherwise de invalid or in conflict -7ita the rules of the orzanization. The Court's power is to preserve the invalidity or conflict with the rules but it may only ac so 1f satisfied that ine validatron would work substantial injustice asving regare to the matters mencioned 1n sub-section 171G(1) un thts contaxt 1s te Se = [o) in the jsagnenz of Bowen me eee a bee antl REC AT oo Ten (1976] 2 N.S W.L.R. 477, a case concerning the applicat on fal o= section 366 of che Companies Acer bh ie} rey 1! oN A u4 mM = in ' Vvif Lf) said LSP) Honour at p. 49 "In my view, the word 'injustice' in this provision reaquizes the Court *o consider any real, and not merely znsubstan- tial or theoretical, prejudice wnich will be suffered by, for example, a member by the making of an order, and to wezgh this in the scales against the prejudice to the company , other members and creditnrs, if an order de not made. In other words, it is insufficiant to show thar there may be some prejudice to a member 1f£, on 2 consideration of the whole matter, the overwhelming weight of justice, as 1t wera, is in favour of making the order. see Re Australian Continental Resources Ltd. (1976) I0 A.C.T.R. 19 at pp. 33, 34 per Blackburn J.; see also Re Castlereagh Sec- urities Led. and the Compamzes Act T1973] TN.S.¥-L.n. 024. The applicanc has farled fo satzsiy me thar the validation wh2ch, on the vrew that there had bean (D a farlure to perform or observe the rules of the Unzon, would already have been effected by the overaticn of section 171F has given rise to substancial injustice in a4 the relevant sanse or that to allow that state of vaiiaa- tion to contznue would vork substantial injustice in the future. First, the applicanc has had ample oppor- tunity during the per1rod of 4 years to which section I71F refers to take vaatever legal stens were csen <2 ALM conseccent the vules of the Septemper 1975 a anc svore affrae am neéltner insce he does not seex <tha imtarests of the Unicn and its members that - to the lapse of "ime since the events of 1976, end to the disputation concerning the validity of mine meeting and the resolutions that were shen carried while 1t zs understandable a] rateem 27 a sanse of injustice question culminating satisfied thar 12 is net in has own dest inter the Union and 1ts members, that the applicant continues co feel at his treatment curing che period in in the events cf 7 August 197 6, am iy w ct n anny Gc in ct as it is not in the interests of the Tasmanian Branch 3 for the matter to be further "« pursued after the lapse of so many years. we 1 The applicatzon 1s dismissed : | order as to costs I maxe zo L cartzfy chat this and cre preceding thirty-seven (37) pages ara a rirue copy 9f cn Reasons for Judgment x of che Honourable Mr. Meaves. _ -4 ce Dates. 14 Apel 17 37