FEDERAL COURT OF AUSTRALIA Gray v Tighe [2012] FCA 684 Citation: Gray v Tighe [2012] FCA 684 Parties: TROY GRAY v PETER TIGHE, NICOLE WELLS, PETER SIMPSON, JIM MCFADYEN, CHRIS MCGAW and BOB DONNELLY File number: NSD 834 of 2012 Judge: NICHOLAS J Date of judgment: 28 June 2012 Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) s 142(1)(c) Cases cited: Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2012] FCA 380 Date of hearing: 19 June 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr A Hatcher SC with Mr A Slevin Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: Mr W Friend SC with Mr C Dowling Solicitor for the Respondents: Hill Payne Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 834 of 2012 BETWEEN: TROY GRAY Applicant AND: PETER TIGHE First Respondent NICOLE WELLS Second Respondent PETER SIMPSON Third Respondent JIM MCFADYEN Fourth Respondent CHRIS MCGAW Fifth Respondent BOB DONNELLY Sixth Respondent JUDGE: NICHOLAS J DATE OF ORDER: 28 june 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's interlocutory application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 834 of 2012 BETWEEN: TROY GRAY Applicant AND: PETER TIGHE First Respondent NICOLE WELLS Second Respondent PETER SIMPSON Third Respondent JIM MCFADYEN Fourth Respondent CHRIS MCGAW Fifth Respondent BOB DONNELLY Sixth Respondent JUDGE: NICHOLAS J DATE: 28 june 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant applies for (inter alia) an interlocutory order in the following terms: … [T]hat the Respondents convene a meeting of the Divisional Council of the Electrical, Energy, and Services Division of the CEPU to review the decision of the Divisional Executive made on 15 June 2012 within 7 days of the date of this order. I am satisfied that the interlocutory order sought by the applicant should be refused. My reasons are as follows. 2 The applicant and each of the respondents are individual members of the Divisional Executive, which is one of the governing bodies of the Electrical, Energy and Services Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU). Above the Divisional Executive sits the Divisional Council. Between meetings of the Divisional Council, the Divisional Executive is in charge of the business of the Division. 3 There is a separate proceeding currently before Perram J involving the same applicant, but with CEPU as the respondent. In that proceeding, the applicant alleged, inter alia, that Rule 5.2.6 of the Divisional rules of the CEPU (the Rules) had the effect of unfairly exempting New South Wales CEPU members from paying membership fees to both the State and Federal divisions of the Union. 4 The applicant argued before Perram J that Rule 5.2.6 was contrary to s 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act), and that the rule is oppressive, unreasonable or unjust. On 17 April 2012, without finally resolving these arguments, Perram J decided to adjourn the proceeding until 17 July 2012 to allow the respondent an opportunity to alter its rules to ensure they complied with the Act: Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2012] FCA 380. 5 On 14 June 2012, members of the Divisional Executive were notified by email that a meeting would take place the following day. The purpose of the meeting was to consider proposed amendments to the Rules in order to address the issues raised in the proceeding before Perram J. 6 The proposed resolution to be considered at the meeting was circulated by the first respondent to the members of the Divisional Executive at 9.10am on 15 June 2012. The proposed resolution, amongst other things, gave approval for the insertion of a new Rule 7.4.3. The proposed resolution also sought to refer the proposed rule amendment to the Divisional Council for its approval. It also proposed that the matter of the proposed rule amendment be submitted to members of the Divisional Council for a decision by correspondence as provided for by Rule 7.7.1. 7 The meeting convened at 11am. Each of the respondents participated in the meeting. The applicant also participated. Following some debate in which the applicant spoke against the proposed resolution, the proposed resolution was passed. The applicant then called for a review of the "decision" pursuant to Rule 8.10 and requested that the resolution not be implemented until it was reviewed by the Divisional Council. 8 Rule 8.10 provides: 8.10 Review of Decisions of the Divisional Executive Any two Divisional Branches by demand of their representative members on the Divisional Executive may call for the review of any decision made by the Divisional Executive. In the event of such demand being made such decision shall not be implemented and the Executive shall forthwith convene a meeting of the Divisional Council to review the decision. This meeting shall be held within seven days of such a demand being made. 9 Shortly after the meeting, the applicant received an email attaching correspondence from the first respondent to each Divisional Councillor asking them to vote upon the proposed rule change by email, post or fax, by close of business on 19 June 2012. 10 On 18 June 2012, the applicant applied to me as Duty Judge for urgent interlocutory relief aimed at preventing any vote from taking place and requiring the convening of a Divisional Council meeting within seven days to review the Divisional Executive's decision of 15 June 2012. I granted an ex parte application to abridge time for service and fixed the interlocutory application for hearing the next day. 11 On 19 June 2012, there was a contested interlocutory hearing. The applicant and respondents appeared and were represented by Senior Counsel. Affidavit evidence was relied upon and various legal issues were argued at the hearing. The principal issue argued was whether the resolution of 15 June 2012 was a decision for the purposes of Rule 8.10. 12 Before the conclusion of the interlocutory hearing, I was informed by Senior Counsel for the respondents that it was clear from a count of votes already received that the proposed rule change would not be approved by the Divisional Council. So much was accepted by Senior Counsel for the applicant. 13 For the applicant it was argued that an interlocutory order should still be made requiring the respondents to convene a meeting of the Divisional Council in order that it might review what was said to be a decision for the purposes of Rule 8.10. It was submitted that there was still an element of urgency present. In particular, it was submitted that a meeting of the Divisional Council should be convened within seven days to allow sufficient time for any proposed rule change to be considered by the Divisional Council before 17 July 2012 when the related proceeding is listed for directions before Perram J. 14 In my view, the urgency that brought the proceeding before me as Duty Judge has vanished. It is open to the applicant and those who share his concerns about any proposed rule change to convene a meeting of the Divisional Executive in the usual way as provided for in the Rules. I am therefore not prepared to grant the applicant the interlocutory relief it seeks. 15 The applicant will no doubt give consideration to the question whether this proceeding has any continuing utility given the developments about which I was informed. 16 I will dismiss the application for interlocutory relief. Both sides asked me not to make any order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 28 June 2012