Short v Camillo [2000] FCA 504

FEDERAL COURT OF AUSTRALIA

Short v Camillo [2000] FCA 504 JOHN SHORT v JOHN CAMILLO and DOUGLAS CAMERON S 21 OF 2000 MANSFIELD J 3 APRIL 2000 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 21 OF 2000

BETWEEN: JOHN SHORT

Applicant

AND: JOHN CAMILLO and

DOUGLAS CAMERON

Respondents

JUDGE: MANSFIELD J

DATE OF ORDER: 3 APRIL 2000

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The order to show cause be discharged. 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 21 OF 2000

BETWEEN: JOHN SHORT

Applicant

AND: JOHN CAMILLO and

DOUGLAS CAMERON

Respondents

JUDGE: MANSFIELD J

DATE: 3 APRIL 2000

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is the hearing of a rule to show cause and order made on 15 March 2000 on the application of John Short. It is made under s 209 of the Workplace Relations Act 1996 (Cth) ("the Act") for orders that John Camillo and Douglas Cameron comply with the Rules of the Automotive, Food and Metal, Engineering, Printing and Kindred Industries Union ("the organisation") in the appointment of delegates to the Australian Labor Party State Convention to be held on 8 April 2000 ("the ALP Convention"). 2 Mr Short has been a member of the organisation since 1981. He is a member of the State Council of the organisation, and a delegate of the State Conference of the organisation. He is also a member of the South Australian branch of the Australian Labor Party ("the ALP"). Mr Camillo is the acting state secretary of the State Branch of the organisation. Mr Cameron is the national secretary of the organisation. 3 The rule to show cause, in effect, seeks to set aside the decision of Mr Cameron and Mr Camillo to appoint fifteen named persons as delegates and proxy delegates of the organisation to the ALP Convention. That decision was made under and pursuant to a decision of the National Council of the organisation, made on 8 March 2000 ("the National Council resolution"). It is claimed that the decision in respect of those fifteen persons is null and void because it did not comply with the Rules of the organisation. There is no challenge to the decision of the National Council itself. 4 The facts are not really in dispute. The real questions are as to the applicability of rule 22 of the Rules of the organisation to the respondents in the making of the decisions and, if it applied to them in making the decision, as to the proper meaning and operation of rule 22 of the Rules. 5 Although there is a difference in the functions which Mr Cameron and Mr Camillo were to perform in accordance with the National Council resolution, the delegates were to be chosen by Mr Cameron in consultation with Mr Camillo. For this reason I do not find it necessary in these reasons to distinguish between their respective positions. No distinction between the roles which they played was made in the course of submissions. 6 The ALP's rules provide for an annual State convention at which candidates for internal and public office are selected and policy is determined. Affiliated organisations comprise a significant portion of the delegates to the ALP Convention, and this year the organisation is entitled to provide eighteen delegates to the ALP Convention. Under rule 62(e) of the ALP rules, delegates to the ALP Convention must be notified not less than four weeks before the convention, that is, by 10 March 2000. 7 Rule 22 of the Rules of the organisation deals with the topic of delegates of representative bodies. Rule 22.2 deals with the appointment of delegates to the ALP and to Labor councils. Rule 22.3 provides some additional eligibility requirements for persons to be appointed in accordance with rules 22.1 and 22.2. Rules 22.2 and 22.3 provide: "22.2 A.L.P. and Labor Councils State Councils may from time to time appoint and remove delegates to representative bodies to which the Union is affiliated in the manner decided by the appropriate State Council. Such delegateship is not an office and such delegates shall not thereby become Officers of the Union. Provided always that there shall be proportional representation of delegates representing the Divisions to any such representative body and subject to the requirements of the rules of that body, the delegates shall be drawn from financial members of the Union in the Technical and Supervisory Division, the Vehicle Division, the Food and Confectionery Division and the Printing Division in the state in such manner as may be decided – (a) in the case of the Technical and Supervisory Division – by the State Council; (b) in the case of the Vehicle Division – by the Regional Council; (c) in the case of the Food and Confectionery Division – by the Regional Council; and (d) in the case of the Printing Division – by the Regional Council. 22.3 Members appointed to a position referred to in paragraphs one and two of this Rule must have at least two years' continuous membership of the Union and be financial in accordance with these Rules. Members shall not be appointed for a period longer than three years but may be eligible for re-appointment." 8 Some steps were taken by the State Council of the South Australian branch of the organisation towards appointing delegates to the ALP Convention. However, there was a controversy about the process by which the State Council of the organisation proposed to appoint its delegates to the ALP Convention. On 3 March 2000, Mr Short sought orders under s 209 of the Act directing Mr Camillo and others to comply with the Rules of the organisation by convening a State Council for the purpose of determining its delegates to the ALP Convention, and for orders directing the State Council about the numbers of delegates from each of the five divisions of the State branch of the organisation to comprise that delegation. 9 In the light of that application, and before it had been resolved, the National Council of the organisation resolved on 8 March 2000 to deal afresh with the appointment of delegates from the South Australian branch of the organisation to the ALP Convention. 10 Counsel for Mr Cameron and Mr Camillo identified the introductory words of rule 8 as providing the foundation for the National Council to make such a resolution. It provides: