tke a Judgement no4Ay IN THE FEDERAL COURT OF AUSTRALIA » VICTORIA DISTRICT REGISTRY No. V1 of 1987 ) ) } INDUSTRIAL DIVISION ' BETWEEN: JUDITH ADELLA CGONEZ .) Applicant AND: JENNIFER LOUISE GIBBS &_ORS. Respondents 29 JANUARY, 1987 ' KEELY J. REASONS FOR JUDGMENT (DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT) I have decided to make interim orders. Mr. John, who appeared for the respondents Kathleen Matthews and Kathleen Gilbert, did not oppose the making of the orders sought. Miss M. Hickey, of counsel, who appeared for the respondents Therese Jenkins and Jill Kennedy and Dr. Buchanan Q.C., who appeared with Mr. Strugneli of counsel for all of the remaining respondents, did not contend that the court lacked power to make either of the two ordera sought but submitted that the court, in its discretion, should refuse to make either of those orders. lt wag common gecuni oecween che parties that the Peineipies calevant to the application for interim relief - are that the applicant 12 required to fhow that there 13 a seriou3 question to be tried and that the "balance of convenience", a3 1¢ 13 called, lies in favour of making the order2 3o0ught. Those principles are ger out in Bullock v The Federated Furnishing Trades Scciety of Australasia (No. 1) (1985) 5 PCR 464 tn which Wocdward J., with whom Smithers and Sweeney JJ. agreed, adopted (at 471) a passage from a decision of a Full Court in Epitoma Ptv. Ltd. v Australasian Meat Industry Employees' Union (1984} 54 ALR 730 at 734. The first interim order that was sought 1s: "An order directing that each of the second to seventeenth Respondents perform and observe the Rules of the Royal Australian Nursing Federation Dy refraining from proceeding to hear and determine the matters the subject of the notice dated 22nd December 1986 summoning Judith Adella Cooney to show cause why she should not be removed from the office of Federal Secretary." Rule 20 of the Royal Australian Nursing Federation's certified rules includes the following provision:- "20. Removal from office of Pederal Councillors and Officers (a) The Federal Council may remove from office any officer or member of the Federal Council at a meeting of the Federal Council to which the person concerned has been summoned in writing signed by the Federal Secretary or Federal President tos show cause why he or zhe should not be 30 removed. Provided that no such pérson shall be ceamoved from office unless he or she has been found quilty of misappropriation of the funds of the Association, a substantial breach of the rules of the Association, or gross misbehaviour or gross neglect of duty, Or has ceased, according to these rules, to be eliqible toa hold the office. (b) wee" The applicant contended that the respondent Gibbs, in exercising the power as Federal President of the federation to call upon the Federal Secretary to show cause why she Should not be removed from office. was under a duty to exercise that power in good faith and not for any ulterior or extraneous purpose - see Scott v Jess (1984) 3 FCR 263 at 286-7 per Gray J. and see Tanner v Maynes (1985) 7 FCR 432 at 441, 455. Counsel for the respondents did not dispute that the Federal President was under a duty to exercise that power in accordance with that principle. Me. Strong and Mr. Mueller of counsel, who appeared for the applicant, contended that the Federal President. in exercising the power under rule 20 to summon the applicant to show cause at a meeting of the Federal Council to be held on 30 January 1987, failed to exercise the power in good faith. They supported that submission by material contained in three - affidavits by the applicant, together with exhibits. In there gsubmi3gion that material is such as to support an inf@rence that Mis3 Gibbs was not acting in good faith in calling upon Mrs. Cooney to show cause. They submitted that rule 20 both empowered and obliged the reapondent Gibbs. as Federal President. to consider any charges laid by members before deciding whether to call upon the applicant to show cause why she should net be removed from office. They did not submit that there was a duty upon che Federal President to investigate every complaint made by any member against any officer but submitted that the Pederal President should not act merely as & "rubber stamp" in respect of charges laid by a member; reference was made to the possibility of charges being brought vexatiously by a member, The applicant submitted that, 1F the Federal President had substantial reason to believe that a charge or a part of a charge was groundless or was maliciously false. then the Federal President should not summon the person concerned to show cause under rule 20 in respect of that charge or that part of a charge. In their g3ubmis3sion the applicant's material showed that some at least of the complaints were, to the knowledge of the Federal President, groundless. In support of that submission they referred in considerable detail to many matters dealt with in the three affidavits. un . Counsel for tne respondents submitted that the material did not show any lack of bona fides by the Federal President. They fucther submitted that under rule 20 the Federal President's duty was no more than a duty to be satisfied that. putting aside any personal knowledge that she had of the matters, the charge laid by the member could conatitute grounds for removal under rule 20; that upon being 20 satisfied the Federal President was under a duty to call upon the officer concerned to show cause before Pederal Council. As these are interlocutory proceedings it is obviously undesirable that I zhould form any view at this stage upon the matters in issue. Although the correct construction of rule 20 is amatter of some difficulty requiring fuller argument than has been possible today, in my vlew, on a consideration of all of the material. the applicant has shown that there is a ser1lous question to be tried within the meaning of the authorities referred to earlier. As to the "balance of convenience" it was accepted by the respondents' counsel that the detriment likely to be caused to the respondents, if the interim orders sought were made, was not substantial; it appears that it would consist largely of what was called "bother and expense" in connexion with the meeting of Federal Council and of possible problems arising from the return of Mrs. Cooney to the performance of 5. her duties as Federal Secretary. Although the case made by the applicant on this question of "balance sf convenience" was criticised by Dr. Buchanan Q.C., I am gatisfied that the balance of convenience 13 plainly in favour of the making of the first order sought. The detriment to Mrs. Cooney 1f interim orders are not made includes a real possibility that she will be removed by the Federal Council from the office of Federal Secretary at a time when she has been nominated as a D4 ven wa candidate for re-election to that office. In saying that I 4 am not speculating in any way as to what the Federal Council i 1s in fact likely to do, but simply having regard to the fact that the charges have been made and Mrs. Cooney has been summoned to show cause. The second interim order sought was wider than the order appearing in paragraph (b) of the rule to show cause and was as follows: "An order directing that each of the first to nineteenth Respondents refrain from publishing or distributing or causing to be published or distributed to any other member, other than the first to nineteenth Respondents, information concerning the Matters che subject of the said Notice dated 22nd December 1986." That notice was the notice summoning the applicant to show cause, Dr. Buchanan Q.C. accepted that there was power to make an interim order in that rorm but submitted that no case had been made out for the making of any such order; alternatively, he submitted that such an order would be too. wide and would inhibit the respondents from the proper preparation of their cases. On a consideration of all the material, including the resolution carried at the meeting of the Federal Council on 22 June 1986 (which apparently was later rescinded) that each of the accusations made against the applicant should be 'published in the Federation's Journal, I have come to the conclusion that an order should be made but will hear further submissions as to the form of that order. ADDENDUM (3 February 1987) In the brief reasons for judgment delivered orally on the day of the hearing, I referred to the possibility of fuller argument being heard as to the correct construction of rule 20. One question, which has been the subject of brief submissions and which may require further consideration, is the nature of the duty placed upon the Federal President under that rule. It may be that, as Dr. Buchanan submitted, «the rule implies that any member may lay a charge against an officer or a member of the Federal Council; if it does then that construction may well strengthen his gubmission that Miss Gibbs was under a duty to summon the applicant to show cause before Federal Council. However, rule 20 does not expressly say any member may lay such a charge; it may be that, although any member can bring matters of complaint to the attention of the Peaeral Fresident, the rule envisages that the Federal President will conaider any guch matters and decide whether any and which of those complaints are sutficient to warrant her calling upon the officer concerned to show cause why she should not be removed from office. In this connexion it is not presently known whether the draftsman of rule 20 was aware that some organizations of employees registered under the Conciliation and Arbitration Act (the Act) have certified rules which expressly provide that any member may lay a charge against any other member; rules sometimes provide that, where such a charge by a member has been laid, the appropriate officer of the organization (which would be the Federal President in the present case? "may if he thinks fit, and shall if directed by the Federal Council summon ...". As mentioned during the hearing, rules sometimes provide that a member may be subject to disciplinary action for laying a charge which is frivolous or vexatious. kerr < aoe 'h Clgne t2 lay a charge under that eule, then 1t may pe that wyes Brythw wb rs zs oO ould be required to attend befors the Federal Sumner) bo act a3 "proserutor" ain ralaticn fo tne charge, The carcifised cules of gcme ganications contain detailed io wu te be ee DB tr set + cr ts Dy a Ly o da b a Q «1 Oo Lay Cr3 Ee fani o ro) perscn caagged fo question those and other witnesses and the right to adirass the tribunal; the Federation = rules contain no such #xpress provisions ouc the appropriate principles of A ronsideration if the correct construction of rule 20 may make it desirable that the history of rule 26 and of any equivalents rule be investigated. Althougn the history of a rule cannot be used to create an ambiguity, recourse to 1t is sometime2 nelpful ain endeavouring to resolve an existing ambiguity. The fact that the proviso to rule 20 is aubstantialiy pased upon the words of 3. 133(1)(f) of the Act may make the history of the rule (and of any e2arlier equiva! nt cule) of greater eslevance than would otherwise be the ca icy Hn) I certify that pages 1 to 3 ave a true copy of the Reasons for Judgment herein of his Honour Mr Justice Keely together 'with an addendum thereto by his Honour. » te ~ m fe mo w a o ie i "i ron he ip