Noack v Cameron [1999] FCA 1466

FEDERAL COURT OF AUSTRALIA

Noack v Cameron [1999] FCA 1466 Industrial Law - application for a rule to show cause - whether applicant has established any arguable ground that impugned resolutions of the Union are contrary to the rules - application dismissed. Matter No. S 88 of 1999 PAUL NOACK v DOUG CAMERON & OTHERS VON DOUSSA J 21 OCTOBER 1999 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 88 OF 1999

BETWEEN: PAUL NOACK

Applicant

AND: DOUG CAMERON, DAVE OLIVER, PAT JOHNSTON, NEIL MARSHALL, JOHN ROYLE, JIM REID, MIKE NICOLAIDES, JULIUS ROE, IAN JONES, DAVE SMITH, NOEL TREHARNE, RUDI VELTMEYER, PAUL BASTIAN, BRIAN HENDERSON, GARY HINGLE, BRIAN BEER, GEOFF ADAMS, IAN CURRY, JOHN SHARP-COLLETT, KEITH PECKHAM, DAVE GOODGER, MICHAEL BROWN, ADRIAN COLEBROOK, FRANK FAIRLEY, DAVE HARRISON, CRAIG JOHNSTON, BRIAN MINNIKIN and ROD PARHAM

Respondent

JUDGE: VON DOUSSA J

DATE OF ORDER: 21 OCTOBER 1999

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: The application for a rule to show cause be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 88 OF 1999

BETWEEN: PAUL NOACK

Applicant

AND: DOUG CAMERON, DAVE OLIVER, PAT JOHNSTON, NEIL MARSHALL, JOHN ROYLE, JIM REID, MIKE NICOLAIDES, JULIUS ROE, IAN JONES, DAVE SMITH, NOEL TREHARNE, RUDI VELTMEYER, PAUL BASTIAN, BRIAN HENDERSON, GARY HINGLE, BRIAN BEER, GEOFF ADAMS, IAN CURRY, JOHN SHARP-COLLETT, KEITH PECKHAM, DAVE GOODGER, MICHAEL BROWN, ADRIAN COLEBROOK, FRANK FAIRLEY, DAVE HARRISON, CRAIG JOHNSTON, BRIAN MINNIKIN and ROD PARHAM

Respondents

JUDGE: VON DOUSSA J

DATE: 21 OCTOBER 1999

PLACE: ADELAIDE

EX TEMPORE INTERLOCUTORY REASONS FOR JUDGMENT 1 This is an application for a rule to show cause why an order should not be made against the respondents under s 209 of the Workplace Relations Act 1996 (the Act). The applicant, Mr Noack, is the State Secretary of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union which is generally known as the AMWU (the Union). The respondents are the National Secretary, Mr Cameron, and members of the National Council of the Union. 2 The underlying subject matter of the present dispute has a substantial history. Because of that history I refused to hear the application for a rule to show cause ex parte, and directed that notice be given to the respondents by service of the proceedings on the Union. Mr Cameron and the Acting National President, Mr Roe, have been represented before me. 3 This matter is urgent in the sense that there are other proceedings before the National Council presently listed for hearing next week, and in those circumstances I propose to deliver my judgment orally now. 4 Over the last fifteen months a number of proceedings involving the present parties have been prosecuted in this Court. The history need not be recited in detail in these reasons. It is sufficient to note that in July 1998, after a charge of gross misbehaviour had been laid by Mr Cameron against Mr Noack under rule 11 of the rules of the Union, Mr Noack sought a rule to show cause why orders under s 209 should not be made which would have the effect of halting the hearing of the charges against him. Then one Ms Adlam sought a rule to show cause why orders should not be made against Mr Noack and Mr Cameron under s 209. Her complaint in substance was that in breach of the rules of the Union the applicant was harassing her in the performance of her duties and responsibilities as Regional Secretary in South Australia of the Technical and Supervisory Division of the Union, and as an Assistant Secretary of the South Australian Branch of the Union. 5 The rule to show cause sought by Ms Adlam was made along with other orders on 22 July 1999. One order was that: "4. Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant." 6 Events which followed the making of that order are canvassed in reasons for judgment delivered by Mansfield J on 8 September 1999 concerning a charge of contempt against Mr Noack alleging a breach of that order. 7 There were also other proceedings by Mr Noack concerning charges laid by Mr Cameron against him before the State Council of the Union of gross misbehaviour. Those charges were eventually heard by the State Council on 24, 25 and 26 November 1998. Whilst a simple majority found Mr Noack guilty of the charges, there was not a two-thirds majority of the State Council of that view, as required by the then rule 11, and the charges were therefore not found proved. 8 Ms Adlam then challenged the outcome of the State Council's deliberations in proceedings under s 209, alleging that some members of the State Council were invincibly biased in favour of Mr Noack. Those proceedings have been heard this year by Marshall J, who reserved his judgment on 10 September 1999. Judgment has not yet been delivered. 9 In the meantime, as a result of events which culminated on 7 October 1998 at a State Council Meeting, on 14 October 1998 Ms Adlam, by notice of motion, applied for orders that Mr Noack be dealt with for contempt of order 4 of the orders made on 22 July 1998. The charge was that Mr Noack had engaged in conduct calculated to harass Ms Adlam by: "…both promoting and moving on 7 October 1998 the purported resolution of the State Council of that date concerning the Women's Committee." 10 The effect of the resolution would have been to have the Women's Committee convened by someone other than Ms Adlam, who had hitherto been the convener of the Women's Committee. On 8 September 1999 Mansfield J found the charge of contempt proved. 11 At some time between 8 September and 20 September 1999 a member of the Union, Mr Andy Plant, laid a charge of gross misbehaviour against Mr Noack under what has now become rule 13 of the Union rules. Rule 13 is an amended version of the former rule 11. The amendments were approved by the National Conference of the Union in July 1998 and were certified on 25 February 1999 by a Deputy Industrial Registrar so as to take effect from that date under s 205(3) of the Act. 12 On 20 September 1998 a mediation was taking place between the parties in an endeavour to resolve conflicts within the Union arising from the finding of contempt which had been made against Mr Noack. The mediation was being conducted by the Honourable J M Riordan AO. During the mediation Mr Riordan gave to Mr Noack's solicitor a copy of the charge laid by Mr Plant, and that charge was read by Mr Noack. 13 On 23 September 1999 there was a meeting of the National Council where a number of resolutions relating to Mr Plant's charges were passed. The minutes of that meeting, recording the resolutions, were transmitted by fax under the hand of Mr Cameron to Mr Noack's solicitors on 23 September 1999. The resolutions included the following motions: "National Council notes that a charge under Rule 13 has been laid by Brother Andy Plant (membership number 5035048) to the following effect:- 'Brother Noack is charged under Rule 13 in that Justice Mansfield of the Federal Court of Australia on 8 September 1999 (in Adlam v Noack (SG91 of 1998)) found beyond reasonable doubt that Brother Noack engaged in conduct which was in contempt of Orders made by von Doussa J on 22 July 1998 and that conduct, if found to have occurred, would constitute gross misbehaviour under Rule 13 by Brother Noack'. National Council notes that the National Secretary has provided a copy of this charge to Brother Noack in Adelaide on 20 September 1999. National Council requests that Brother Noack advise by 5.00pm 30 September 1999 whether he admits or denies the charge or wishes to make any comment thereon. National Council considers that having regard to the undetermined issues relating to matters of bias in State Council proceedings SG141 of 1998, [i.e. the proceedings heard by Marshall J] National Council is of the view that the charge laid by Brother Andy Plant should be dealt with by National Council pursuant to Rule 13.9(c). National Council requests Brother Noack to voluntarily not carry out any of the duties of State Secretary pending determination of the charge by National Council on 27 and 28 October 1999. National Council determines that if Brother Noack voluntarily stands aside, then he should continue to receive the remuneration normally due to him as State Secretary." 14 The National Council also passed a lengthy motion adopting procedures to be followed in respect to the hearing of the charge, and another motion that Mr Noack show cause by 1 October 1999 why he should not be directed, pursuant to rule 13.14 not to carry out any of the duties attached to his office of State Secretary. The National Council determined to hold a telephone hook-up on 5 October 1999 to consider this direction and any response from Mr Noack. 15 On 1 October 1999 Mr Noack's solicitor wrote two letters to Mr Cameron. In the first Mr Noack denied the charge. In the second many complaints were made that the procedures required by rule 13 had not been followed, that the proposed procedures for the hearing were unfair, and that rule 13 was being improperly invoked to have retrospective application to the events alleged to have occurred on or about 7 October 1998. Notably that second letter offered no comment on the substance of the charge laid by Mr Plant, nor any submission why a charge properly laid under rule 13 should not proceed to an expeditious hearing as required by the rules. Because of the complaints made in the second letter, Mr Noack demanded that the present respondents treat the resolutions of 23 September 1999 as null and void. 16 The National Council met again on 5 October 1999, and had before it the two letters from Mr Noack. The National Council passed a number of resolutions relating to the charge. The National Council resolved to direct Mr Noack not to carry out any of the duties attached to the office of State Secretary, other than the exercise of rights under the rules to attend meetings of bodies on which the State Secretary is a member and to participate pursuant to the rules in such meetings. This direction was to operate until the National Council determined the charge or until 28 October 1999, whichever was the earlier. 17 The National Council also resolved to draw Mr Noack's attention to the orders of von Doussa J made on 22 April 1999, and to direct Mr Noack not to engage in any conduct contrary to those orders at any meetings that he might attend. The resolutions then continued: "Arising from the correspondence from Moloney and Partners [i.e. Mr Noack's solicitors] and from this decision, Council determines as follows:- · As neither South Australian State Conference nor State Council can fairly deal with the charge brought by Brother Plant and pursuant to Rule 13.9(c) National Council will deal with the charges. · Brother Noack will be called upon to show cause to National Council at 10.00am on 27, 28 and (if necessary) 29 October 1999 in Adelaide, why he should not be removed from office. · Brother Curry will continue to carry out the duties associated with T&S Division matters and issues pertaining to Sister Adlam from Orders of von Doussa J. · Subject to the exercise of Brother Noack's rights to attend meetings as noted above, Brother Camillo and Watson will jointly carry out all other duties described in Rule 29.3, State Secretary. …" 18 Against that background the present application for a rule to show cause is made. Mr Noack seeks an order under s 209 which would have the effect of restraining the respondents from proceeding further with the hearing of the charge laid by Mr Plant and declaring null and void the resolution under rule 13.14 directing him not to carry out the duties attached to his office of State Secretary. 19 The relevant part of the present rule 13 are as follows: "1. No person elected to an office within the Union shall be removed from that office except in accordance with this rule. … 3. By a two-thirds majority of votes taken at a meeting of the National Conference, the Conference may by resolution in that behalf remove from office a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross mishaviour (sic) or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office. 4. By a two-thirds majority of votes taken at a meeting of the National Council, the National Council may by resolution in that behalf remove from office, subject to this sub-rule, a National Official of the Union, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased under the rules of the Union, to be eligible to hold the office. Where such resolution has been carried by National Council it shall be submitted to the members of the National Conference by post for endorsement. No such resolution of the National Council shall have force or effect until such time as it has been submitted to and endorsed by a majority of the National Conference. … 6. By a two-thirds majority of votes taken at a meeting of a State Conference, the Conference may by resolution in that behalf remove from office a State Official of the Union in that State, or Regional Official in Tasmania, where that Official has been found guilty under the rules of the Union of misappropriation of the funds of the Union, a substantial breach of the rules of the Union, gross misbehaviour or gross neglect of duty, or has ceased, under the rules of the Union, to be eligible to hold the office. State Council at a meeting may by resolution in that behalf remove from office, subject to this sub-rule, a person holding one of the offices referred to in this sub-rule after being found guilty by a two-thirds majority of votes taken at a meeting, of one or more of the offences described in this sub-rule. Where such