Disbtiict Lex etors _ mod - a phtetin Hu for we pyten ony 300 minty 2664tleH . CATCHWORDS CP 26/4 Industrial law - refusal of order nisi - necessity of establishing prima facie case of existing or threatened failure to perform or observe rules - rules permitting removal of branch officer by majority of members attending duly summoned branch meeting no unreasonable, oppressive or unjust. JOHN CHARLES ROLPH v FREDERICK ATHOL ROWLINGS and TRANSPORT WORKERS UNION OF AUSTRALIA Conciliation & Arbitration Act 1904, ss. 140 and 141 CORAM : KEELY J. DATE : 13 SEPTEMBER, 1984 PLACE : HOBART IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) ) INDUSTRIAL DIVISION BETWEEN JOHN CHARLES ROLPH AND : FREDERICK ATHOL ROWLINGS and TRANSPORT WORKERS UNION OF AUSTRALIA DATE : 13 SEPTEMBER, 1984 KEELY J. ORAL REASONS FOR JUDGMENT HIS HONOUR: Perhaps I should just say to you, Mr Rolph, this 1s not in a form in which it can be handed out but it will be taken down by the court reporters and made available as soon as the transcript 1s normally available. The purpose of section 141 of the Conciliation and Arbitration Act 1904 1s to enable a member of a registered organisation to obtain orders from this court giving directions to other members of the organisation to perform and observe its rules. Section 141 (1) $c) makes clear any such directions are to be given to a "person who 1S under an obligation to perform or observe those rules". In my opinion, it would not be proper for the court to make an order which, although purporting to give directions for the observance of rules, was, 1n essence, no more than a declaration in respect of the validity of events which occurred 8 years ago. The applicant has had an opportunity to consider this difficulty as the Registrar, at my direction, drew the matter to his attention last Tuesday. Today he has been unable to point to any recent action of the respondent or any threatened future action which would constitute a failure by the respondent to perform or to observe the rules. The applicant's inability to do so is consistent with what he apparently conceded before a full court in Rolph v Transport Workers Union of Australia (T No 1 of 1984 - unreported judgment 25 July 1984). As the full court there said in its reasons for judgment: He has brought this action 7 years later because he obviously suffers from a deep sense of injustice. He is determined to take whatever steps are open to him to clear his reputation of the damage which he feels it suffered at the meeting. Although he concedes that he cannot undo the several elections which have taken place since he was ousted from office, he seeks, 1n essence, a declaration that the meeting was not properly conducted and the meeting's conclusions not validly reached. In my opinion, the section under which the present application 1s brought does not authorise orders for the purpose of clearing the reputation of a member. It 1s true that, from time to time, orders are made by the court under section 141 1n respect of the expulsion of a member of an organisation. For example, where a committee of the union has found him guilty of certain misconduct but in so expelling the member, rolrow 13.9.84 49 emc bmw lh has failed to observe the rules of the organisation. In such case the court may grant an application under section 141 for an order that the appropriate officers treat the expulsion as being null and void and of no legal effect. and to recognise that the person 1s still a member notwithstanding the purported expulsion. In such a case, however, the court's order 1s founded upon the respondent's failure to observe the rules, a fa1lure which still exists at the time when the proceedings are brought, in that they are failing to recognise the applicant as being still a member. The reasons for judgment delivered by the court when making such an order may state that the past action by the respondents was wrongful in the sense of being contrary to the rules of the organisation. However, 1t 1S important to bear 1n mind that in such a case the purpose of the order under section 141 1s to ensure that the respondents fulfil an existing obligation to perform and observe the rules, ie, an obligation which exists at the time of the court's order. Such a case may be contrasted with the present application which does not seek to remedy any existing failure by the respondent, Rowlings, to perform and observe the rules of the union, but instead, 1s designed to clear the applicant's reputation of the damage which he feels he suffered. In answer to questions today, the applicant submitted that the respondent, Rowlings, as branch president, 1s "still answerable to that decision" of the meeting on 7 August 1976. However, 1n my opinion, it has not been shown that there 1s any presently-existing obligation placed upon the branch president by the rules in respect of that decision of August 1976. Paragraph 1 of the applicant's draft order relates to the declaration by the Tasmanian branch president at the meeting on 7 August 1976 that the office then held by Mr Rolph be "declared vacant". That matter was dealt with by Mr Justice Neaves in an unreported judgment delivered on 17 April 1984 which was the subject of an unsuccessful appeal by Mr Rolph. (See full court judgment of 25 July 1984 cited earlier). It 1s clear from the reasons for judgment that Mr Justice Neaves, in the course of the hearing, considered the transcript of the meeting on 7 August 1976. His Honour rejected a submission that Mr Rolph had had inadequate time to prepare his defence. He held that the applicant was aware of the meeting and that it would consider the question of his guilt or innocence, and his Honour was satisfied that the applicant chose not to attend the meeting. rolrow 13.9.84 50 emc bmw 2h Mr Justice Neaves also held that the applicant had not been denied natural justice and that the resolutions passed by the meeting of 7 August 1976 were not invalid by reason of any doubts as to who may have moved or seconded them. The overall conclusion of Mr Justice Neaves was that the applicant had "failed to establish that there was any relevant failure to perform or observe the rules of the union, including the implied principles of natural justice ...". Paragraph 2 of the applicant's draft order relates to a resolution carried at the meeting on 7 August 1976. That matter was also dealt with by Mr Justice Neaves. As to this matter, his Honour at pages 34 and 35 of the typed judgment said: In my opinion, it 1s beyond argument that the resolution could be no more than an expression of the will of the meeting. It could not bind the branch returning officer who, had he declined to accept a nomination of the applicant based solely upon the resolution, would have been un breach of his duty and might have been restrained from so acting. It 1s, however, apparent, on the evidence before me, that the branch returning officer did not, on the occasion in 1977 when the applicant nominated for the position of member of the branch committee of management, act upon the view that he was precluded by the resolution from accepting such nomination. The nomination was in fact accepted and the applicant was defeated at the ensuing election. No #ferdenmee has been proved wsfane. in which an attempt to nominate the applicant for an office within the branch has been frustrated by reference to the above resolution. Paragraph 3 of the applicant' draft order was based upon a submission that rules 37(c), (e) and (£) and rule 44(f) of the rules in force on 7 August 1976 contravened section 140(1) (a) of the act. Having carefully considered those rules, I am unable to see any ground upon which it can be contended that they contravened section 140 in 1976. Mr Rolph put two contentions on this question. First, that those rules contravened the section in that they permitted a minority of members to remove a member of the branch committee of management. However, that minority of the overall membership of the branch would only have that power of removal if they constituted a majority of those members who attended that meeting. In my opinion, the argument on this aspect 1s untenable. rolrow 13.9.84 51 emce bmw 3h contr remov. the o said prese rolrow 13.9.84 emc bmw 4h Secondly, it was argued that the rule avened section 140(1) even if the power of al could only be exercised by a majority of verall membership of the branch. It was in Mr Rolph's supporting affidavit in the nt matter that a rule in such a form was: contrary to the provisions of regulation 115(1) (dad) of the act, which requires, amongst other things, for the rules of the union to provide for - (1) the election of - (C) any conference, council, panel or other body (additional to the committee of management), which 1s empowered to determine policy or to exercise functions of management in the association or branch. I regard that contention as being quite untenable. In my opinion, regulation 115(1) (a) (1) (Cc) relates to the election of various bodies by the membership of the branch. It has nothing to do with the exercise by the membership assembled 1n a meeting, of a power to remove officers. In this connection 1t may be noted that regulation 115(1)(d){1v) and (v) requires an organisation to have rules providing for the removal of officers and for the control of committees of a branch by the members of the branch. In my opinion, the present application 1s outside the scope of section 141. As I consider that the applicant has not shown a prima facie case to put to the court, in my opinion, it would not be proper to make an order calling upon the respondent Rowlings to show cause why the declarations and orders sought should not be made. Accordingly, the application is refused. I should add that if, contrary to what has already been said, a rule to show cause had been granted, and at the hearing the applicant succeeded in satisfying the court that there is an existing failure to perform or observe the rules of the union, a further question would arise as to whether it would be proper for the court in the exercise of its discretion under section 141, to make an order in all the circumstances, including 1m particular the circumstance that the events to which the present application relates occurred eight years ago. In Williamson v Federated Marine Stewards and Pantrymen's Association of Australasia 1949 (65 CAR 418) the court refused relref under section 141 (then section 81). In that case Mr Justice Foster, with whom Mr Justice Dunphy agreed, said: In this case he allowed 12 months to elapse before commencing these proceedings - a delay for which no satisfactory explanation was given. Mr Rolph was given notice by the Registrar of this difficulty and no satisfactory explanation has been given by him as to the reasons for the delay, although his inability to obtain legal aid was referred to in his affidavit in support of his application to Neaves J, and I have taken that fact into account. In his judgment in that case Mr Justice Neaves referred to the fact that on 2 August"... one in Cntassrons < September 1976 and the other in May 1978 he prepared and swore affidavits as a basis for such proceedings, but in neither anstance did he pursue his legal remedies." His Honour then continued: rolrow 13.9.84 53 HIS HONOUR mlb reb ih Secondly, there 1s no way in which he could now be reinstated as branch secretary of the union, and indeed, he does not seek that relief. Thirdly, it 1s in the interests of the union and its members that having regard to the lapse of time since the events of 1976 there be an end to the disputation concerning the validity of the meeting and the resolutions that were then carried. While it 1s understandable that the applicant continues to feel a sense of injustice at his treatment during the period in question culminating in the events of 7 August 1976, I am satisfied that 1t 1s not in his own best interests, just as it is not in the interests of the Tasmanian branch of the union and its members for the matter to be further pursued after the lapse of so many years. That statement of course referred to different proceedings. However, the matters referred to by Mr Justice Neaves are not irrelevant to the exercise of the court's discretion, and even 1f contrary to the opinion already expressed the applicant could otherwise establish his claim under section 141, in my opinion the elapsed time since 1976 1s such that the court should not in its discretion grant the relief sought. The application 1s dismissed. AT 4.00 PM THE MATTER WAS ADJOURNED INDEFINITELY rolrow 13.9.84 54 HIS HONOUR mlb reb 2h