CATCHWORDS Industrial law - Interim order - Tests to be applied - Balance of convenience. Trade Practices Act 1974 Conciliation and Arbitration Act 1904 ss. 141(2), 133(1)(f£) Craven-Ellis v. Canons Ltd. £19363 2 K.B. 403 Beecham Group Limited v. Bristol Laboratories Pty. Limited (1967) 118 C.L.R. 618 Re Evans; Re Hospital Employees Federation of Australia (1984) 8 I.R. 299 Bullock v. The Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 F.C.R. 464 JAMES PATRICK HUGHES v. JOHN DUNNERY & ORS. S.A. No. 5 of 1986 , GRAY J. ADELAIDE 26TH MAY 1986 iFEOIE "WL. COURT OF EMETP ALIA PPUNCI Pec a eeeey Yee, oh as me oe =F , et caanehheshduememnariae nalirian ~ IN THE FEDERAL COURT OF AUSTRALIA) oo ) SOUTH AUSTRALIA DISTRICT REGISTRY) S.A. No. 5 of 1986 ) INDUSTRIAL DIVISION ) BETWEEN: JAMES PATRICK HUGHES Applicant AND JOHN DUNNERY, JIM DOYLE, KEVIN JOHN TINSON, ALAN STANLEY BEGG, ALAN JAMES BLANE, JOHN RAJAN THOMAS, MARK GRAHAM ROACH, ARTHUR RICH AND WILLIAM HARRIS Respondents JUDGE: GRAY J. DATE: 26TH MAY 1986 EX TEMPORE REASONS FOR JUDGMENT On 16th May 1986, the branch executive of the South Australian branch of the Australian Workers' Union resolved to "immediately appoint an additional organiser with particular reference to coverage of Roxby Downs." The branch executive then proceeded to conduct a kind of election for the filling of that position. Two nominations were received, one of which was' the respondent John Rajan Thomas. Mr. Thomas was appointed by the branch executive by a 4 to 3 majority. slp orecn sew eee Ae ' oO a -2- On 22nd May 1986, the applicant obtained a rule to show cause, calling upon the members of the branch executive to perform and observe the rules of the Australian Workers' Union, firstly by refraining from taking any action to implement that resolution, and secondly by treating the resolution as null and void. The application is made pursuant to s. 141 of the Conciliation and Arbitration Act 1904. What is presently before me is an application pursuant to sub-s. (2) of that section for an interim order, pending the trial of the proceeding. In substance, the applicant seeks, pending the trial, an order that the respondents refrain from taking any action to implement the resolution, and treat it as null and void. It is common ground for the purposes of this application that the Australian Workers' Union ("the union") is an organisation registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"), and that the applicant is a member of the union. At the outset a question may arise as to the appropriate test or tests to be applied on applications of this kind for interlocutory relief. There have been several authorities in which the principles laid down by the High Court in Beecham Group Limited v. Bristol Laboratories Pty. Limited (1967) 118 C.L.R. 618, at pages 622-623, for the consideration of statutory interlocutory injunction applications have been adapted to and applied in applications of this kind. Those authorities are conveniently set out in the judgment in Re Evans; Re Hospital Employees Federation of Australia (1984) 8I.R. 299. To that Som op ee ee 7 T, "~ -3- list of authorities there might be added a reference to Squires v. Stephenson (1979) 53 F.L.R. 164. Since that time the Full Court of this Court has rejected the Beecham test in considering interlocutory injunctions under the Trade Practices Acts see Bullock v. The Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 F.C.R. 464, especially at pages 471-472 in the judgment of Woodward J. The question may, therefore, arise whether the Court should reject that approach in considering interlocutory applications under s. 141(2) of the Act. 'Whatever is to be the appropriate test at this stage of the case, it seems that the test must involve consideration of two matters. In the first place, the Court must look to see whether the case put forward by an applicant is sufficient to ensure that the Court will not simply be wasting its time in considering the matter. In other words, there must be some prospect of the applicant succeeding at the trial of the proceedings. Whatever the level of that prospect may be might be a matter for debate. The second stage which the Court must consider is the balance of convenience, that is the respective benefits and disadvantages to the parties of the making or refusing of an interlocutory order. It is necessary to consider the balance of convenience to ensure that, so far as is possible, justice is done at the interim stage. I turn then to consider the first stage, namely what the applicant's prospects of success may he. The applicant's on ee oe oy wy tt ie . pee epee eee Tyee a9 we at, oa aia rem anr Hiee rae et rete >: ay . mA Ur coe - 4- argument relies heavily on the fact that specific provisions exist in the rules with respect to organisers, and particularly with respect to their election by members of branches. His contention is that these specific provisions impliedly exclude any power on the part of a branch executive to appoint organisers, except a power to appoint persons to fill casual vacancies for elected organisers. Reference is first made to two definitions in rule 4 of the rules. The first is the definition of "officer" in sub-rule (e) which is in the following terms: "Officer" shall include the President, Vice-Presidents, General Secretary, Branch President, Branch Vice-Presidents, Branch Secretary, District Secretaries, President and Secretary of the Mining Division of the West Australian Branch, Branch Executive Councillors, Branch Executive Committeemen, and elected Organisers, Delegates to Convention and Delegates to Delegate Meeting Queensland Branch." It is significant to note that the only one of those positions listed in this definition to which the adjective "elected" is applied is "organisers". This tends to suggest that the rules contemplate the existence of organisers other than those who are elected, as well as those who are elected. The second definition is in sub-rule (h) and is as follows: "Organiser" means a member elected in manner hereinafter appearing or appointed by a Branch Executive or Convention or the Executive Council to advocate the principles of Unionism and promote the organisation and enrolment of members. The applicant says that the word "appointed" in this definition refers only to appointments to fill casual vacancies in the ne er alate | open -~5- office of organiser. No specific power appears elsewhere in the rules for the branch executive, or the convention or executive council, to appoint organisers, except for powers to fill casual vacancies which appear in rule 39(q) (relating to the executive council), and rule 65 (relating to the branch executive). These powers are not restricted to organisers, but are general powers to fill casual vacancies in various offices. By rule 68 of the rules, nominations for various offices must be received every four years. Some debate took place as to whether this means that all officers within the South Australian branch of the union are elected each four years or whether the elections for the various offices are staggered from year to year. Because no evidence was led, at this stage it is impossible for me to make a finding upon that question; suffice it to say that the rule appears to contemplate that all officers will be elected each four years and that there will not be a staggering of elections for some offices from year to year. of course, the rule does make provision for annual elections for those officers whose terms of office are only for one vear. Under rule 69, if there are more nominations than positions available, ballots are to be held and a time table is laid down. Rule 71 gives the right to vote to each member who is financial, and also to the holders of tickets under rule 8 (honorary members). Under rule 64(a) the branch executive is required to determine, prior to the date for the calling of nominations for the reqular elections of officers, the number of organisers to be elected at such election. The rules, therefore, Ty en ey sce . er i aro -6- appear to contemplate that the branch executive will decide what number of elected organisers is required, and will take steps to ensure that elections for those positions are held in conjunction with the elections for other officers. Sub-rules (b) and (c) of rule 64 are of considerable interest. Sub-rule (b) requires that all organisers shall in all cases conform to the direction of the branch secretary, district secretary or divisional secretary by which they are employed. Sub-rule (c) provides that all organisers shall be subject to removal from office pursuant to rule 58(c). Rule 58{c) echoes the provisions of s. 133(1)(f) of the Act. These provisions appear to suggest that all organisers are elected. If this were not so, unless rule 58(c) were construed as not applying to the appointed organisers, appointed organisers would have greater tenure than those elected, which would be unusual. Under rules 59 and 78, in a branch without districts, such as the South Australian branch, the highest authority of the branch is the branch executive, and that is the body which has power to manage the branch. Finally rule 58(f) provides specific power for the branch executive to appoint an acting branch secretary or district secretary for a limited period. As may be seen from this summary of the rules, there are factors in the rules which point both in favour of and against the applicant's case. The applicant's case is supported by rule 64 and to some extent by rules 58(c) and (f). Against his case are the specific references to elected organisers in the crceen ne! "ey aires ren aye eS arene lie aaa T vente a necro ee eee, ' STI eo ry oh ale + ah ' Pag ly -7- definition of "officers" in rule 4(e) and the possible power to appoint, which might be construed as being given to the various governing bodies in the definition of "organiser" in rule 4(h). It should be noted that the principle that a specific mention in a document of one subject impliedly excludes other subjects not mentioned is not a principle of automatic application, but only an aid to the construction of the document. See Pearce Statutory Interpretation in Australia, 2nd ed., para. 56. The question of the proper construction of these rules cannot be determined finally on an interlocutory application. Indeed, it is undesirable that the Court should say too much about that question at this stage. If it is enough that a serious question to be tried be raised, then I am satisfied that such a question has been raised by the applicant. If a prima facie case were required to be made out, then I have some doubt whether I would be so satisfied, assuming that a prima facie case means more than a serious question to be tried. There was an attempt made by counsel for the applicant to suggest that the appointment of Mr. Thomas may be liable to be set aside, because it was made in bad faith or bv reason of an improper purpose. This suggestion was based on the facts that the new executive is due to take office on 1st June, Mr. Thomas failed to gain election to the new executive and to the position of organiser at the last reqular elections, no previous notice was given by advertisement or otherwise of any intention to Trt repo vw : wt er et meses aye er - - 8 - appoint an organiser, and Mr. Thomas was present and voting at the meeting which appointed him. The affidavit on which the rule to show cause was obtained did not raise bad faith or improper purpose as an express allegation, although it did refer to some of the facts which I have just summarised. All of those matters may be susceptible of innocent explanation. If the preamble to the resolution to appoint an additional organiser is accepted at face value, then reasons existed on which that decision could be based. There is nothing before me at this interlocutory stage to say that I should not accept those statements in the preamble. Although he was not appointed to the position of organiser at the regular elections, Mr. Thomas did receive the seventh highest vote out of nine candidates for six positions of organisers. It would not necessarily be unreasonable for a branch executive to look to him if it were felt to be proper to appoint an additional organiser. It is agreed on the facts that Mr. Thomas has been a member of the union since about 1972, a job representative for about seven years and a member of the branch executive for about four years. If appointment of organisers is permissible, previous notice is probably unnecessary as a matter of law. It should be noted that the other candidate for the position was also a member of the branch executive, although the evidence does not disclose whether he was present and voting on 16th May. For these reasons I would not be disposed to regard these allegations as raising a serious question to be tried or a prima facie case on the evidence before me at this stage. nary cee me eee nd 'ay Wore era meee Pe re ee eee ee ee ace ager pens, moe er ee -9- Assuming that the applicant has satisfied the first stage by his argument on the construction of the rules, I need to turn to the question of the balance of convenience. Here some agreed facts are relevant. Mr. Thomas was employed by the Corporation of the City of Burnside from 1972. After the meeting of the branch executive on 16th May, he gave one week's notice to his employer of termination of that employment. That notice was posted on Sunday 18th May, addressed to the town clerk. Monday 19th May was a public holiday in South Australia. On Tuesday 20th May, Mr. Thomas attended at his place of work at 7.30am. He was met by the branch secretary, the respondent Begg, who handed him a letter dated 19th May 1986. That letter was in the following terms: "I have to-day[sic.J received a letter from a member of the union concerning the decision taken by the Branch Executive to appoint you as an organiser. This letter notifysEsic.1 me that an application for an injuctionEsic.] will be saught£sic.1 forthwith, to restrain myself and the Branch Executive from acting on that decision in any way. Accordingly I suggest that you should not take any steps to terminate your Services with the Burnside Council until the outcome of the Legal proceedings, I have mentioned is concluded." Mr. Thomas did not take steps to deflect his notice of termination from its path to the town clerk, or to revoke it if it were already received. His contract of employment with the City of Burnside has therefore come to an end by reason of the expiration of the notice or earlier by agreement between the emplover and him. Unless he is able to take up the appointment as an organiser he will be unemployed and without income, at To eee eo ere as fen weer ne ewes ras 7, 7 TT nn nee - 10 - least until he can find an alternative job. It must be remembered that in applications of this kind the Court considers the balance of convenience pending the trial. I expect that the trial of this matter will only be a matter of weeks or perhaps months away. It is unlikely to be a long trial. Tf Mr. Thomas were now compelled to seek other employment and were subsequently to succeed, he will have suffered substantially. On the other hand, if he takes up the duties of an organiser and receives pay, and the applicant subsequently succeeds, the union will not have suffered as greatly. It will have received the benefit of Mr. Thomas's services, even though it will have to pay for them. Even if the appointment proves not to have been justified by the rules, Mr. Thomas would probably be entitled to remuneration for services rendered. See Craven-Eliis v. Canons Ltd. £19361 2 K.B. 403. Payment for a short period is not likely to be severely detrimental to the union's finances, If the incoming branch executive considered the employment was detrimental to the union's interests, it could no doubt take whatever lawful action may be open to it to terminate that employment. It was argued that Mr. Thomas had not safeguarded his position by endeavouring to continue his. employment with the City of Burnside. There is no reason why an appointee should in effect abandon his position, or why a resolution of the branch executive should not be carried out, just because notice is given that it will be challenged. Such an argument would put too much pressure on the person appointed and would enable one person to so ee Spee mo ent os Rom seegeres emer r= ont .t - St - Ji - hold up the operation of any decision by intimating his or her intention to challenge it. In my view, the balance of convenience favours allowing Mr. Thomas to take up the appointment pending the trial. For that reason, if for no other, the application for interlocutory relief must be dismissed. I certify that this and the /© prececiny pu t3 are a true copy of the Reasons for Judzme.it herein of his Honour Mr. Justice cs NX, Associate Dated: afd] Fo a rn pram re ee ee oe eee atte Toe td PF) aay a a a ns py ns te oe ee ee woe , : .