FEDERAL COURT OF AUSTRALIA Butler v Setches [2017] FCA 1538 File number: VID 456 of 2016 Judge: O'CALLAGHAN J Date of judgment: 19 December 2017 Catchwords: INDUSTRIAL LAW – application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – where decisions of the National Council of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) found applicant guilty of two charges under the Rules of the CEPU (Rules) – where National Council found that the applicant committed a breach of the Rules by "serially failing" to attend meetings of the National Council without good cause and breached her "fiduciary duty" to the CEPU by doing so – where applicant subsequently removed from office – whether decisions in accordance with the Rules – whether reasonable people acting honestly could have reached the decisions – whether certain members of the National Council invincibly biased against the applicant Legislation: Fair Work (Registered Organisations) Act 2009 (Cth), s 164 Cases cited: Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 Buchanek v Jones (1989) 29 IR 332 Cains v Jenkins (1979) 42 FLR 188 Cleworth v Barrow (1978) 20 ALR 359 Dickason v Edwards (1910) 10 CLR 243 Haritou v Skourdoumbis [2002] FCA 116 Maloney v NSW National Coursing Association [1978] 1 NSWLR 161 A D Lang, Horsley's Meetings: Procedure, Law and Practice (Lexis Nexis, 7th ed, 2015) Date of hearing: 15, 16, 17 November 2017 Registry: Victoria Division: Fair Work National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 58 Counsel for the Applicant and the Fourth, Fifth and Sixth Respondents: Mr E White Solicitor for the Applicant and the Fourth, Fifth and Sixth Respondents: Ryan Carlisle Thomas Lawyers Counsel for the First to Third, Tenth to Seventeenth and Nineteenth to Thirty-Fifth Respondents: Mr H Borenstein SC and Mr T Borgeest Solicitor for the First to Third, Tenth to Seventeenth and Nineteenth to Thirty-Fifth Respondents: Slater and Gordon Lawyers ORDERS VID 456 of 2016 BETWEEN: VALERIE BUTLER Applicant AND: EARL SETCHES First Respondent ALLEN HICKS Second Respondent GREG RAYNER (and others named in the Schedule) Third Respondent JUDGE: O'CALLAGHAN J DATE OF ORDER: 19 dECEMBER 2017 THE COURT ORDERS THAT: 1. Pursuant to s 164(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) the respondents and each of them perform and observe the Rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) by treating as null and void and of no effect: (i) the resolution of the National Council of the CEPU passed on 3 August 2016, which found the applicant guilty of two charges laid under the Rules by the second respondent, and (ii) the resolution of the national councillors representing the Communications Division of the CEPU passed on 19 September 2016 which purported to resolve to remove the applicant from all offices within the CEPU. 2. The applicant file and serve any submission she may choose to make about whether any, and, if so, what, order should be made with respect to the costs of the proceeding by 4.30 pm on 15 January 2018. 3. The respondents file and serve any submissions in reply by 4.30 pm on 25 January 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: INTRODUCTION 1 Ms Butler was a long-standing member of the Communications Division of the National Council of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). In August 2016, the National Council resolved that she was guilty of two charges brought under the Rules of the CEPU (the Rules), the substance of which was that she had committed a "substantial breach" of the Rules, or had breached her "fiduciary duty" to the CEPU, because she had serially failed to attend meetings of the National Council from March 2014 onwards and that there was no good reason for her non-attendance. It was alleged that Ms Butler had not attended a total of seven such meetings. At the first meeting, Ms Butler was absent for half an hour, an absence the reason for which she explained before the meeting commenced. In respect of four of the other meetings, Ms Butler attended by sending a proxy and/or her apology for non-attendance was accepted. In respect of the remaining two meetings, Ms Butler neither attended by proxy nor asked formally for her absence to be excused. Having been found guilty of the two charges, Ms Butler was later "removed from all offices" within the CEPU by way of penalty. 2 The evidence before the National Council was that, to the extent that Ms Butler did not attend the meetings in person, it was because she was afraid to do so, because of the antipathy that had been shown, and threats made, to her since 2011 by other members of the National Council, whom she knew would likely be present at the meetings. 3 That antipathy had manifested itself in a number of ways over the years preceding the meetings the subject of the two charges. It is necessary to set out in detail the evidence later in these reasons. The substance of the evidence before the National Council, which Ms Butler said provided her with good cause not to attend the relevant meetings, may, however, be summarised as follows. 4 In 2011, Messrs Metcher, Murphy and O'Donnell, each a member of the National Council, called Ms Butler, and her colleague, Mr Taylor, "cunts". When Mr Taylor took issue with that description, Mr Metcher, in Ms Butler's presence, said: "I don't just make threats cunt, I carry them out". Ms Butler also told the National Council that: since 2011, she had feared for her safety and security; she had been subject to "an absolute tirade of abuse" from Mr Cameron Bird at a National Council meeting in November 2013; at another National Council meeting in Sydney in 2014, when she greeted Mr O'Donnell with the words "good morning", he responded: "it was until you got here bitch"; she was concerned about "violence and thuggery amongst some in the CEPU" and that "someone would be seriously hurt because of the 'pushing and shoving and general attempts at intimidation'"; since as long ago as August 2011, she had been "subject of a sustained campaign of abuse" from Mr O'Donnell, including a "bizarre campaign of lies, bullying, harassment & accusations against [her] …", as a result of which she complained to Victoria Police, who advised that the email material she received was "menacing" and constituted "using a carriage service to harass, annoy and offend" or "stalking"; Mr O'Donnell had referred to her in an email sent in February 2012 to Mr McVee, Mr Metcher and others as a "fucker"; in August 2014, Mr O'Donnell, in an email widely circulated to officials in the CEPU, including to Ms Butler herself, described her as "a horrible poisonous thing that calls herself a Trade Unionist that I know you personally amongst many despise", as a "useless individual no one has any respect for …" and as a "horrible, poisonous, useless oxygen thieving nutter"; in 2015, having received in excess of 80 hang-up or abusive calls late at night, including being warned "we are going to get you cunt", passed the incidents on to the police, as well as complaining to the CEPU and the Fair Work Commission; and that the police advised her not to attend National Council meetings. 5 Ms Butler says that as a result of these and other matters: (1) in circumstances where she in fact attended three of the seven meetings by proxy, and/or the National Council accepted her apologies for her absences, she was only properly to be regarded as absent for two meetings; (2) such an absence is incapable of constituting a "substantial breach" or "gross misbehaviour" within the meaning of the Rules, so that it was not possible under the Rules for her to be removed from office; (3) to the extent that she did not attend, she had "a good reason" not to, within the meaning of the relevant rule, such that reasonable people acting honestly could not have found her guilty of either charge; (4) Mr Metcher and Mr McVee ought to have recused themselves from the hearings because they were invincibly biased against her, such that findings of guilt and the penalty imposed with respect to both charges cannot therefore survive; (5) the charges were technically deficient. This proceeding 6 Ms Butler brings her application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) against the remaining members of the National Council, who are the respondents. 7 Section 164(1) of the Act provides that "A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation". For the purposes of s 164, "order" means "an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules": s 164(9) of the Act. 8 By an amended originating application filed 4 November 2017, Ms Butler seeks the following relief: 1 An order pursuant to s 164(1) of the Act that the Respondents perform and observe the CEPU Rules by treating the National Council resolution dated 3 August 2016, which found the Applicant guilty of charges laid by the Second Respondent under the CEPU Rules (the Charges), as void and of no force or effect. 2 A declaration that the National Council resolution of 3 August 2016 that the Applicant is guilty of the Charges is void and of no effect. 3 An order pursuant to s 164(1) of the Act that the Respondents perform and observe the CEPU Rules by treating the Applicant as having had a good reason for not attending the National Council's meetings of 6 November 2014, 25 May 2015, 27 May 2015, 30 June 2015, 20 August 2015 and 1 December 2015. 4 An order pursuant to s 164(1) of the Act that the Respondents perform and observe the CEPU Rules by treating the Applicant as not guilty of the Charges. 5 An order pursuant to s. 164(1) of the Act that the Respondents perform and observe the CEPU Rules by treating the second of the Charges as null and void. 6 A final injunction restraining the Respondents from giving effect to or any further effect to the Charges. 7 Further or alternatively to the preceding orders a Declaration that the Divisional National Councillors' resolution of 19 September 2016 to remove the Applicant from all offices within the CEPU (the Penalty Resolution) is void and of no effect. 8 An order pursuant to s 164(1) of the Act that the Respondents perform and observe the CEPU rules by treating the Penalty Resolution as void and of no force or effect. 9 A final injunction restraining the Respondents from enforcing the Penalty Resolution or treating it as operative. … 9 The parties agreed that the only evidence which is admissible on this application was the same evidence that was before the National Council and the Communications Division when the former found Ms Butler guilty of the two charges and the latter removed her from office. That evidence, it was agreed, was: (1) annexure VB-1 to the affidavit of Ms Butler sworn 12 May 2016; (2) the affidavit of Ms Butler sworn 1 June 2016, save for [13]-[21] inclusive; (3) annexures VB-27, VB-29, VB-30 and VB-33 to Ms Butler's affidavit sworn 18 November 2016; (4) the affidavit of Gregory Rayner sworn 21 December 2016; and (5) the affidavit of Nathan Metcher affirmed 18 September 2017. The Rules 10 The Rules relevant to the application deal with various matters, including the power of the National Council to receive and process a charge laid by any member against another; the right of national councillors to appoint proxies to attend meetings of the National Council; the circumstances under which national councillors may be removed from office; offences, charges and penalties, and their duty to attend meetings. 11 Rule 7.1 relevantly provides: 7.1 Powers of the National Council 7.1.1 The National Council of the Union shall have exclusive power to deal with matters affecting more than one division and the general control and conduct of the business and affairs of the Union having regard to the requirements of divisional autonomy provided for in these rules. 7.1.2 Without limiting the generality of sub-rule 7.1.1 the National Council shall have exclusive power to:- … 7.1.2.9 subject to rules 24 "Suspension or Removal of Officers" and 25 Offences, Charges and Penalties", to receive and process a charge laid by any member against any other member in relation to any matter covered by Section A of these rules and to impose appropriate penalties including the removal from office of a member of the National Council or National Officer who in the course of his/her duties as a member of National Council or National Officer is found guilty of:- (1) misappropriation of the funds of the Union; (2) substantial breach of the Union's Rules; (3) gross misbehaviour; or (4) gross neglect of his/her duty. 12 Rule 7.15 is headed "National Council Proxies and Alternate National Councillors". Rule 7.15.2 provides: 7.15.2 If a National Councillor from the Communications Division: 7.15.2.1 cannot attend a National Council meeting, a proxy National Councillor appointed by the Branch Committee of Management from the same Industry Group and Branch shall attend the meeting in his or her place. 7.15.2.2 cannot attend a National Council meeting and there is insufficient notice for the Branch Committee of Management to appoint a proxy, he or she may appoint another councillor present at the meeting who represents the same Industry Group as his or her proxy for that session(s). 13 Rule 24.2 is headed "Removal from Office". It provides: 24.2.1 National Officers can only be removed from that office where they have been found guilty under rule 25 "Offences, Charges and Penalties" of: 24.2.1.1 misappropriation of the funds of the union; 24.2.1.2 a substantial breach of the rules of the union; or 24.2.1.3 gross misbehaviour or gross neglect of duty; or have ceased to be eligible to hold office. 14 Rule 25.1 provides: 25.1 Charges by Members 25.1.1 Matters in relation to offences and penalties confined to a Division shall be dealt with in accordance with the Divisional rules. 25.1.2 In relation to any matter covered by Section A of these rules, any member may charge any member including a National Officer with: 25.1.2.1 failing to observe any rule of the Union; 25.1.2.2 knowingly failing to observe any resolution of the National Council; 25.1.2.3 working in contravention of an award, order or agreement by which the Union is bound; 25.1.2.4 wrongfully purporting to occupy any National office or position or an entitlement to represent the National Council in any capacity (to which charge it shall be a defence that the member believed bona fide and on reasonable grounds that he/she was entitled to do so); 25.1.2.5 giving false or misleading information to, obstructing or failing to assist on reasonable request, an officer of the Union; 25.1.2.6 committing any fraudulent or unlawful act in relation to the funds or property of the Union or in relation to any election held under the rules; 25.1.2. 7 aiding or encouraging any other member in any offence under this rule. 15 Rules 25.3 and 25.4 provide: 25 .3 Power to Hear Charges The National Council shall hear charges under this rule. 25.4 Finding of National Council 25.4.1 If the National Council finds the member guilty, it shall refer the matter to those members of the National Council representing the Division to which the offending member is attached, who shall meet forthwith to consider the matter of imposing a penalty. After giving the member charged an opportunity to raise any matter relevant to the question of penalty the said members of the National Council may do one or more of the following - 25.4.1.1 Impose no penalty; 25.4.1.2 Impose a fine not exceeding $500; 25.4.1.3 Suspend the guilty person from membership or deprive him/her of any right or benefit of membership for a specified period, or until the happening of any specified event or until the performance of any specified act. Suspension from membership shall deprive a member of the benefits of membership, but shall not relieve him/her of the obligations of membership and shall not exceed six months for any offence. If the specified event has not occurred or the specified act has not been done at the expiration of six months from the date of suspension, the suspension shall then lapse; 25.4.1.4 Remove the guilty person from any office or position; 25.4.1.5 Expel the person from the Union. 16 Rule 29 is headed "Duties of Members of Governing Bodies". It provides: 29.1 The members of National Council, the Divisional Councils and Divisional Executive and Divisional Branch Councils, Conferences and Divisional Branch Executives and other governing bodies of the Union and its Divisions however named shall attend the meetings of the governing bodies of which they are members unless there is a good reason for their non-attendance. 29.2 They shall conscientiously attend to the business placed before the governing bodies of which they are members and deal with such business in accordance with the rules. The Charges 17 The statement of charge against Ms Butler relevantly reads as follows: I, Allen Hicks, being a financial member of the CEPU hereby lay the following charges against Valerie Butler, a member of the CEPU and National Councillor: 1. That Valerie Butler is guilty of failing to observe the rules of the Union by serially failing to attend meetings of National Council. 2. That Valerie Butler is guilty of breaching her fiduciary duties as an officer of the Union by serially failing to attend meetings of National Council without good cause. … The grounds for the above charges are as follows: 1. The CEPU is a registered organisation pursuant to the Fair Work (Registered Organisations] Act 2009 ("the FWRO Act"). The CEPU is governed pursuant to its rules, as approved by the Fair Work Commission, the FWRO Act and the common law. 2. The CEPU's governance structure is diffuse, with various levels of responsibility at the National, Divisional and Branch level. The National Council is the supreme governing body of the Union, with broad responsibility for governance issues and matters impacting upon more than one division. 3. Members of the National Council (i.e. National Councillors) are officers of the CEPU, both within the meaning of the Rules, the FWRO Act and at common law. As officers, National Councillors are obligated, inter alia a. pursuant to rule 29.1, attend the meetings of National Council unless there is a good reason for their non-attendance; b. pursuant to their fiduciary duties as an officer, to attend to their duties in good faith, including by attending meetings of National Council; c. pursuant to rule 25.1.2.6, to not commit any unlawful act in relation to the funds or property of the Union; and pursuant to rule 25.1.5, to not obstruct an officer of the Union. Valerie Butler 4 Valerie Butler is a long standing officer of the CEPU with extensive experience in the trade union movement. As an officer, Valerie Butler is required to, and has, completed approved training that covers the duties of officers of organisations. 5. Relevantly for present purposes, Valerie Butler was elected to the National Council, in accordance with the rules, resulting from the 2011 quadrennial elections and again in the 2015 elections. The First Charge 6. The first charge against Valerie Butler alleges a breach of the rules of the Union by serially failing to attend meetings of National Council, with the relevant rule being Rule 29.1. [Rule 29.1 is then set out] 7. In turn, rule 25.1.2 prescribes the charges that can be made under the Section A rules, including relevantly: "25.1.2.J. failing to observe any rule of the Union". 8. Consequently, a National Councillor is required to attend meetings of National Council unless there is a good reason, with a failure to do so being a failure to observe a rule of the Union. 9. The following table details Valerie Butler's attendance at all meetings of National Council since November 2013: Meeting Date Attended Date of Notice of meeting 18-Nov-13 Yes 18-Sep-13 19-Nov-13 Yes 18-Sep-13 21-Mar-14 Partial, did not return following lunch break 3-Mar-14 6-Nov-14 No – provided Appology (sic) 24-Sep-14 25-May-15 No – refused to attend/appoint proxy 15-May-15 27-May-15 No – apology/proxy 25-May-15 30-Jun-15 No – appointed Proxy – John Ellery 9-Jun-15 20-Aug-15 No – appointed Proxy – John Ellery 11-Aug-15 1-Dec-15 No – appointed Proxy – John Ellery 19-Oct-15 10. With respect to each of the above listed meetings, Valerie Butler was provided due notice of the date, time and proposed agenda. 11. As detailed above, Valerie Butler has not attended any of the last six convened meetings of National Council. 12. With respect to the meeting of 21 March 2014, Valerie Butler attended the morning session of National Council but did not return following the lunch break Valerie Butler did not advise, nor provide an apology for, her non-attendance at this meeting. 13. On previous occasions, I have raised the issue of non-attendance directly with Valerie Butler. Valerie Butler has advised that she is concerned for her personal safety vis-a-vis other National Councillors. In response, I have repeatedly: a. requested she particularise the conduct at the source of her concerns; b. offered and, in the case of the meeting on 2 May 2015, arranged for private security guards to attend at meetings of National Council; c. offered to facilitate Valerie Butler attending meetings of National Council via telephone; and d. requested Valerie Butler to advise what further steps she considers necessary or appropriate to facilitate her attendance. 14. Notwithstanding my attempts, Valerie Butler has: a. failed to particularise the conduct at the source of her concerns; b. failed to attend meetings of National Council; and c. failed to advise what steps she believes necessary or appropriate to facilitate her attendance. 15. With respect to the meeting on 30 June 2015, Valerie Butler was subject to an order of the Federal Court directing her attendance. On 18 June 2015, Justice Tracey issued the following order … [The order is then set out.] 16. Notwithstanding this order, Valerie Butler did not attend the meeting. 17. Given the above, I consider: a. that Valerie Butler has serially failed to attend meetings of National Council, from the meeting on 21 March 2014 onwards; b. that there is no good reason for Valerie Butler's non-attendance, given: i. her non-attendance at meetings of National Council held by telephone; ii. her failure to attend meetings where private security guards had been organised; iii. her failure to attend meetings via telephone; and iv. her failure to proffer alternative steps to be taken so as to enable her to participate c. that this serial non-attendance is aggravated by Valerie Butler breaching the order of Justice Tracey. 18. Consequently, I believe that Valerie Butler is guilty of the offence of failing to observe the rules of the Union, namely rule 29.1. The Second Charge 19. For the grounds set out in connection with the First Charge, l believe Valerie Butler is also in breach of her fiduciary duties as an officer. This breach is aggravated by: a. her extensive experience in the trade union movement; b. her successive tenure as a National Councillor; and c. her having completed approved training. 20. In the circumstances, I believe that the National Council has an inherent power to discipline officers that are in breach of their fiduciary duties. … 18 It is necessary to set out the evidentiary material before the National Council in some detail, because, as the parties agreed, the relevant question for the Court in a proceeding such as this is whether a reasonable National Council acting honestly could have reached the decision that Ms Butler had serially failed to attend National Council meetings, and breached her fiduciary duty by not doing so, on the basis of that material. 19 In her affidavit before the National Council, Ms Butler deposed as follows: 2. I have been an elected member of the National Council of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) since 2005. As I mention in paragraph 4 of the First Affidavit, the CEPU is organised into divisions, one of which is the Communications Division. I am a Communications Division National Councillor. Those who sit on the National Council from this Division represent particular industry groups, one of which is the Telecommunications industry group. I am one of eight Telecommunications industry group delegates to the National Council; the others are: … Mr John Ellery; … Ms Parker (both she and Mr Ellery are from the Victorian Telecommunications and Services Branch in the Communications Division); … Mr Jansen; … Mr Perkins; … Mr Murphy; … Mr Tredrea; and … Mr Kershaw. Of the thirty five National Council members, until the elections last year four were women: myself, … Ms Doyle, … Ms Parker and Ms Riley. After the election, we were then joined on the National Council by … Ms Robinson. Ms Riley was replaced by … Ms Bahls. 20 As to charges 1 and 2, Ms Butler responded on oath relevantly as follows: 3 (a) For the 21 March 2014 meeting, under the heading "1 .3 Apologies and Proxies", Mr Hicks, who is the CEPU National Secretary, reported on apologies and proxies received. For me, he stated "V Butler may have a phone conference at 12.30 and will proxy if required". He moved a motion that National Council accept the apologies and proxies, which was seconded by the thirtieth respondent. The motion was carried. I did receive the call that I had expected at about that time during a break in the meeting. I left the National Council meeting during the break after I received this call to attend a meeting that, during the call, had been arranged for 1.30pm. The National Council meeting had resolved to conclude the meeting at 1 pm. My partial non-attendance was for the period between the resumption of the National Council after the break until the meeting concluded, which the meeting had agreed would be 1 pm. Annexed to this affidavit and marked VB 13 is a true copy of the minutes. (b) For the 6 November 2014 meeting, I did not attend but apologised. My apology was accepted by the National Council. In the minutes under the heading "1 .3 Apologies and Proxies" is stated "An apology was received from V Butler". Mr Hicks moved a motion accepting the apologies, which was seconded by Mr Murphy. The motion was carried. Annexed to this affidavit and marked VB 14 is a true copy of the minutes. (c) For the 25 May 2015 meeting, Mr Hicks states in his table that I "refused to attend". I did refuse. I did so for the reasons that I refer to below in paragraph 5 to 10. I had another reason for not being able to attend that day. I was providing assistance to a Union member, Mr Chris Holt, who was in the midst of a bullying case against Telstra that had been in the Fair Work Commission for some time. He was a senior executive and he had been subject to performance management by Telstra. The member had required a lot of personal help and support due to his depressed and anxious emotional state. The minutes state that I was one of a number that did not provide an apology or appoint a proxy. I accept that on that occasion I did not appoint a proxy and did not formally submit an apology. However, Mr Hicks knew that I would not be attending because I notified him of this in writing on 20 May 2015. There was wide-spread non-attendance for this meeting. The meeting did not proceed due to the absence of a quorum. Annexed to this affidavit and marked VB 15 is a true copy of the minutes and a copy of the email I sent to Mr Hicks notifying him that I would not be attending. [That email provides as follows: Dear Mr. Hicks, For reasons previously stated to you I will not be attending the National Council Meeting, nor am I in a position to appoint a proxy, it would be irresponsible of me to do so in all of the circumstances. I reiterate that I am of the belief that you are unwilling or unable to address the problems previously advised to you. I have been assaulted and abused in the National Council Meetings and I have witnessed others being abused and harassed. I have formed a view that some officials of CEPU at the national level condone the behaviour at the very minimum and are more supportive of perpetrators than they are of victims, I would say this is fairly obvious given past events. As previously stated I have reported my concerns to bodies properly able to deal with the issues and I am satisfied that the issues are being addressed. For these and other reasons I will not attend. I am not required to subject myself to such behaviour in the workplace in any circumstances.] (d) For the 27 May 2015 meeting, Mr Hicks states in his table that I did not submit an apology or appoint a proxy. I agree that I did not appoint a proxy. However, I did provide my apologies in advance of the meeting. I provided them in person to Mr Dwyer, who was then the CEPU National President. Annexed to this affidavit and marked VB 16 is a true copy of the minutes. (e) For the 30 June 2015 meeting, Mr Hicks states in his table that I appointed a proxy – Mr Ellery. Mr Ellery is the Victorian Branch Secretary of the Telecommunications and Services Branch. He is in the same industry group as myself. The minutes of the meeting under the heading "Proxies" state that "Valerie-Anne Butler, National Councillor Vic T&S Branch appointed John Ellery as proxy". Mr Hicks then moved a motion, seconded by Mr Murphy, that the "National Council notes and accepts apologies from Valerie-Anne Butler and appoints John Ellery ... as proxy delegates". In addition to the reasons I have identified in paragraphs 5 to 10, I was unable to attend on that day due to an urgent commitment to assist the same Telstra member I refer to in (c) above. The meeting was with Telstra. It was called on at short notice. Mr Holt and I expected that Telstra would dismiss him at this meeting and it did. Mr Holt was in a highly agitated state. I spent most of the day either representing or supporting him. Annexed to this affidavit and marked VB 17 is a true copy of the minutes. (f) For the 20 August 2015, Mr Hicks states in his table that I appointed Mr Ellery as a proxy. The minutes of the meeting under the heading "Proxies" state that "Valerie-Anne Butler, National Councillor Vic T&S Branch appointed John Ellery as proxy". The twenty third respondent then moved a motion, seconded by the thirtieth respondent, that the "National Council notes and accepts apologies from Valerie-Anne Butler and appoints John Ellery ... as proxy delegates". Annexed to this affidavit and marked VB 18 is a true copy of the minutes. (g) For the 1 December 2015 meeting, Mr Hicks states in his table that I appointed Mr Ellery as a proxy. That was incorrect, I appointed Mr Alex Jansen. He is a member of the same industry group. The minutes identify those who had apologised for the meeting and also the proxies. I am included in the list for the Communications Division in each category. Mr Hicks moved a motion, seconded by the twenty ninth respondent that the apologies and proxies be accepted. This is carried. Annexed to this affidavit and marked VB 19 is a true copy of the minutes. 4. I informed Mr Hicks that I would not be attending National Council meetings personally by email dated 28 October 2014 and concluding with an email from me dated 3 November 2014. Annexed to this affidavit and marked VB 20 is a true copy of the email chain. [That email chain includes the following: CONFIDENTIAL Dear Mr. Hicks, Firstly my concerns are very real and based on experience either personally or what I have witnessed in regards to behaviour towards others. My concerns are directed towards Mr. Jim Metcher, Mr. Shane Murphy, Mr. John O'Donnell, Mr. Barry McVee and Mr. Phil Hughes and Mr. Cameron Bird. … It is not my intention to recite every instance in this case. I reiterate that I have reported my broad concerns about the "culture" of the CEPU to other agencies and I am very confident that these matters will be dealt with appropriately as they should be. Issues in regards to National Council: 1. As has previously been reported in writing within the Division at the National Council Meeting held in Melbourne at the Plumbing Union office amongst other things Metcher, Murphy and O'Donnell referred to myself and Mr. Taylor as "cunts". Further when Mr. Taylor took issue with Mr. Metcher over his behaviour and the threats he was making Mr. Metcher responded with words to the effect of "I don't just make threats cunt I carry them out" … … 3. National Council Meeting November 2013. Mr. Cameron Bird threw the folder with the Butler v Metcher submissions back at me. He claimed he was just "putting it down". I was willing to accept at that time and in all of the circumstances eg. a crowd of people, the reactions at being served with legal documents, a group of people getting aggravated and feeding off each other as well as inciting each other that this may well have been "accidental'" however later in that meeting whilst a number of other meetings were taking place (Joan was meeting with you and others in regards to the Federal Court action) I remained in the meeting room with others. Mr. Bird returned from outside, he was carrying a backpack. He had no reason to make his way back to where he was sitting by moving past me and regardless he had plenty of room to do so. However, in doing so he deliberately moved close into me, he swung his backpack over his shoulder and had I not have moved quickly inwards and ducked my head down he would have hit me in the head, I am firmly of the belief that this was the intent, as it was he hit me in the back. I told him to watch what he was doing as a way of indicating to him that he was "caught out." Bird then immediately commenced an absolute tirade of abuse. His reaction was completely out of proportion to anything that had been said to him, he was completely out of control. This event was but one that occurred at that meeting. 4. National Council Sydney 2014 going into the venue with Sue Riley I said 'Good Morning' to a group that included John O'Donnell, he responded with words to the effect of "it was until you got here Bitch"… 5. During that National Council Meeting (while I was present) Mr. Murphy, Mr. O'Donnell and possibly Mr. Hughes (I cannot be sure as they tend to talk over one another in their excitement) continuously abused and harassed Mr. Martin O'Nea. They used words to the effect of "yer a fuckin' dog O'Nea", "youse are a fuckin' lagger' etc; etc; If anyone sought to interject to stop them that simply meant that person then became the subject of abuse for a little while… 6. Yourself and Mr. Setches refused on at least sixteen separate occasions to hear or receive any submissions from us about the issues within the CWU, rather I suggest (and based on statements made by Murphy, O'Donnell, Metcher and others) you had already decided 'whose side you are on.' This is evident from other actions. I make that statement on the basis that on the one hand both yourself and Mr. Setches claimed that you did not condone violence when meeting with us, then on the way out of the very same meeting I was actually following close behind you and the other BTU/Plumbers group and on the way out of the door Mr. Setches stated very loudly words to the effect of "those assault charges have got to be dropped." 7. At the very first face to face meeting with Mr. Rod Madgwick it became evident very quickly that the only issue that was to be subject of "mediation" was coercing Martin O'Nea to "drop the charges" against Jim Metcher or "not turn up and give evidence for Victoria Police" in the assault matter against Jim Metcher. This was stated not just once but twice during the meeting, once with Mr. O'Nea absent from the meeting and then later directly to Mr. O'Nea when he returned from his meeting. We still do not know who instructed Mr. Madgwick to make that approach? Who approved or directed that course of action? Based on legal advice (affirmed three times by three separate people) this action may constitute an "attempt to pervert the course of justice." In my mind it certainly constitutes a general acceptance of violence and thuggery amongst some in the CEPU and those who dare challenge that behaviour or support anyone who challenges that behaviour can expect to be treated much the same. … I will not be reconsidering my decision to attend in person at the National Council. I remain firmly of the belief that there is very little chance of you or Mr. Dwyer asserting any control and frankly I have my doubts about any willingness to do so. I reserve my decision about phone attendance as much of the abuse and harassment has taken place over the phone. My immediate thought is that the best step for me is not to attend in person or via phone. As I stated my 'line in the sand' has been well and truly drawn; I will no longer tolerate the verbal or physical abuse, and nor should I be expected to. I note Allen that in regards to John O'Donnell you have been copied in on many of his diatribes, you have never sought from me my position. It can hardly be said that I have been unreasonable in asserting that I am of belief that you are unwilling or unable to do anything about it, nor can you claim to know nothing about some of these events. It is for these reasons that I have done something about it and no one who has taken the time to review all of the information has found it funny, trivial, or all part of the nature of unions and that we should just put up with it and accept it as somehow normal. In fact they find it vindictive, misogynist, malicious, deranged, menacing, highly offensive and criminal. That is just some of the commentary and reaction by other people who in the main cannot believe that this has taken place in a union.] 5. I had before the meeting of 6 November 2014 had enough of the personal and vindictive behaviour of certain National Councillors towards me. Since 2005 I have attended to my National Council responsibilities, I believe, with diligence. When Mr Hicks became National Secretary in 2013 he increased the number and frequency of National Council meetings. In contrast, his predecessor would usually conduct one National Council meeting per year. The increase in the number and frequency of meetings increased my exposure to the highly distressing behaviour that I refer to in my 3 November 2014 email. The persons I refer to in my email as engaging in the behaviour I objected to are … Mr Metcher …Mr Murphy … Mr McVee … Mr O'Donnell … and … Mr Hughes. 6. The behaviour I refer to had been ongoing since 2011 and appeared to coincide with the election of a group that I had supported to various National and Divisional offices. Those in the group included my partner of 18 years, Mr Len Cooper, who was until August 2015 a National Councillor and who had for many years been the Branch Secretary of the Victorian T & S Branch. 7. Some examples of the way in which I am referred to appear in an email exchange relating to a forthcoming CEPU Women's conference. Annexed to this Affidavit and marked VB 21 is a copy of the email exchange with the first date being 22 May 2012 and the last date being 7 August 2012. In the emails there is reference to "JOD". This is an abbreviation of Mr. O'Donnell's name and is how he and others often refer to him. The reference to "LLB" is a reference to Mr Dwyer. [The email exchange includes an email sent by Mr O'Donnell on 22 May 2012, sent to Messrs Watkins, McVee, Metcher, Hughes, Lorrain and Miller in which Mr O'Donnell refers to Ms Butler, among others, as a "fucker".] 8. Another example particular to Mr O'Donnell is an email he circulated dated 29 August 2014 addressed to Mr Ellery. I was included in the email circulation list. In that email, Mr O'Donnell refers to "that horrible poisonous thing that calls herself a Trade Unionist". He then says: "Get some balls and put Lenny in the paddock and he can take that "horrible, poisonous, useless oxygen thieving nutter with him, I know you want this!". There [were] then only three female Telecommunications National Councillors, including myself. Mr O'Donnell often referred to Mr Cooper as "Lenny". I am Mr Cooper's partner, which is well known in the Union. For these reasons, I read what Mr O'Donnell said "Lenny" should do by taking that horrible, poisonous, useless oxygen thieving nutter with him as a reference to me. How he speaks in the email is consistent with how Mr O'Donnell speaks to me. He is derogatory, aggressive and personal. Annexed to this affidavit and marked VB 22 is a copy of the email. 9. I went to the police in 2012 initially about the behaviour of Mr O'Donnell. Since then I have done the same with respect to the anonymous and abusive phone calls, or emails, that I periodically receive. 10. I took Mr O'Donnell's 29 August 2014 email to the Victoria Police. That email scared me. Whilst I was already worried, the email made me worry for my personal safety. It was, in my view, menacing. The advice I received from the officers that I showed the email to was that I should not willingly put myself in his presence. I decided that I would do the same in relation to the other National Councillors who had abused me. Since then, I have not attended National Council meetings, commencing with 6 November 2014. 11. The behaviour is extremely distressing, and upsetting. I don't believe that I should have to put up with it or expose myself to it by attending National Council meetings personally if there is a risk that my presence will trigger an outburst from Mr O'Donnell, Mr Metcher, Mr McVee, Mr Murphy and/or Mr Hughes. I am concerned that this potential remains. In June 2015 I received a spate of phone calls in the evenings. For those that I answered the person or persons (it sounded for some as if there was more than one person present) would laugh or make noises, but not say who they were despite my demands that they identify themselves. They sounded male. In one of these calls, the person said "Gonna get you cunt". It was a man. He sounded drunk. He was slurring his words. I was frightened by the calls. I reported the June 2015 calls and other calls that I had received before then to the Australian Federal Police and handed over call data, emails and my phone for the purposes of their investigation. I responded to queries from the Australian Federal Police throughout 2015. In April 2016 I met with Australian Federal Police officers to discuss the progress of the investigation. I was informed that their investigations indicated that the calls and messages had originated from phone numbers linked with Mr O'Donnell, Mr McVee and the person I refer to in paragraph 16 of the First Affidavit, Mr Massarani. I believe the investigation is ongoing. The information further undermined my confidence that Mr Hicks has done or will do anything to control the behaviour I object to. I am unaware of whether he has looked into the complaints I raised in November 2014. 12. Apart from the 25 May 2015 National Council meeting, I have submitted an apology and/or appointed a proxy from my Telecommunications industry group. I continue to attend to National Council business by reading the papers circulated by Mr Hicks and instructing my proxies as to my views and voting preference on the issues that arise for attention by the National Council. It is my habit to ask the proxy I have appointed what has occurred at the meeting and to read the minutes of the meeting so that I am informed about what has transpired. 21 Ms Butler's written submissions were as follows: CHARGE 1-SERIALLY FAILING TO ATTEND MEETINGS 1. I am accused of failing to observe the rules of the Union by serially failing to attend meetings of the National Council. The relevant rule 29.1 reads: "The members of National Council ... shall attend the meetings .... unless there is a good reason for their non-attendance.' I have had good reasons and my apologies and proxies have been accepted at the meetings of the National Council. · 2. Mr Hicks states that I have not attended 6 meetings since 21 March 2014. • I have provided apologies for all these meetings. • I have provided proxies wherever possible. • I am working towards a resolution of the situation in a responsible manner. 3. On 21 March 2014, at the beginning of the meeting I explained that I had a meeting at 12.30pm and would proxy if required. This was noted erroneously as a phone call at 12.30 pm in the minutes. I asked for the minutes to be amended but this amendment to the minutes was not made. I was in the Sydney CBD on union business for the rest of the day once this meeting was confirmed. My apology was accepted by a motion to the meeting moved by A Hicks and seconded by P McCrudden: "The apologies and proxies be accepted." The motion was carried. Apologies and proxies were also accepted for 5 other National Councillors . Point 12 of Mr Hicks' statement which states that I did not advise nor provide an apology is false, as shown by the minutes of this meeting. See the attached minutes -Attachment 1. I should point out that I was one of 15 National Councillors plus the 'Victorian plumbing delegates who left early who were absent from this meeting at various times – some without apology. 4. On 6 November 2014, I provided an apology. This was accepted by a motion put to the meeting moved by A Hicks and seconded by S Murphy "That apologies be accepted." The motion was carried. I had provided a written apology by email sent on 28 October 2014 at 6.20pm. I provided reasons for my non-attendance to Mr Hicks on 28 October 2014 and again on 3 November 2014. 5. In relation to the meeting held on 25 May 2015, I provided an explanation in writing to Mr Hicks on 24 November 2014 and again on 20 & 22 May 2015. I had provided an apology. It was wilfully not tabled by Mr Hicks. There were 10 delegates who are listed as not attending and not apologising in addition to myself. There were another 12 delegates who are listed as putting forward apologies. The meeting was inquorate. None of these delegates are facing charges. 6. For the meeting held on 27 May 2015 called on two days' notice, I provided an apology to the National President. This is correct procedure and in light of Mr Hicks failure to pass on my apologies previously a wise practice. Possibly because of the short notice given for the meeting there were 23 delegates who were not in attendance and the meeting once again did not have a quorum. There were 7 Plumbing delegates, 3 Electrical delegates and 13 Communications delegates not present, with 11 National Councillors not providing proxies. My apology was not tabled by Mr Dwyer probably because the meeting did not proceed. 7. For the meeting held on 30 June 2015, I provided an apology and appointed John Ellery as my proxy. In addition to the reasons why I was not attending that I explained to Mr Hicks previously, I was engaged in urgent work for a Telstra member who had been dismissed and who was suffering extreme emotional distress. So at 10 am on this day I was not physically available to be on the teleconference. My apology was accepted by a motion to the meeting moved by A Hicks and seconded by S Murphy which was carried. There were four other National Councillors who had apologised and appointed proxies. None of these delegates are facing charges. 8. On 20 August 2015, I provided an apology and appointed John Ellery as a proxy. This was accepted by a motion to the meeting moved by S. Butler and seconded by P. McCrudden: This motion was carried. There were eight other National Councillors who had apologised and appointed proxies. None of these delegates are facing charges. 9. On 1 December 2015, I provided an apology and appointed Alex Jansen as my proxy. This was accepted by a motion to the meeting moved by A Hicks and seconded by G Menzies which was carried. There were fifteen other National Councillors who had apologised and appointed proxies. Singled out by Mr Hicks · 10. It is clear that I am being treated differently to other National Council members who have also been unable to attend these meetings. There are many other members of the National Council who have provided apologies and/or provided proxies to National Council meetings. I attach a table showing the absences of other members of the National Council … 11. You will note that there are other members of National Council who have not attended meetings. Mr Hicks has not charged any of these members. Mr Hicks has singled me out. 12. Attachment 2 Page 2 also indicates that I have been singled out for different treatment. 13. I believe that I am the only person ever to be charged under the rules with not attending a meeting. 14. Further, the charges were laid shortly after I lodged a Bullying Application in the Fair Work Commission. I have a workplace right to make an application to stop bullying. The charges have caused me further distress, embarrassment and pressured me to attend meetings against sound advice. Adverse action should not be taken against me for exercising my workplace rights. Valid Reason 15. I have had a valid reason for my recent non-attendance. I have spent many months seeking that a person who is stalking and bullying me cease his behaviour. My employer and I have also asked his employer to request him to cease his behaviour. When the behaviour persisted and intensified, I formally reported stalking allegations to the Victorian Police in May 2015. The alleged stalker is another Communications Division National Councillor. My allegations are extensive, and this is not a proper forum in which to ventilate the issue. I will state that I have received in excess of 80 hang-up or abusive calls late at night to my home over a lengthy period. These incidents were passed onto the Police. 16. In August 2015, I formally reported this matter as a Work Health Safety issue to my employer. 17. In October 2015, I made a bullying complaint to the Fair Work Commission. This proceeding continues. I am seeking that another person be joined to that proceeding. 18. I would remind National Councillors that I have been a member of National Council for 12 ¾ years, and have attended regularly until advised by Police not to attend. I have enclosed the general advice given to victims of stalking which has been confirmed by the police attending to my matter personally. (Attachment 3). 19. I have taken responsible action to resolve this situation in the Fair Work Commission. 20. This complaint is with the proper authorities, and until there is some legal restraint on the individual whom I allege is stalking me, I am not in a position to attend National Council meetings. That said, I am diligent in reading all the National Council papers and in discussing the issues, appointing a proxy wherever possible and instructing them on how I wish them to vote on my behalf. 21. Point 14 of Mr Hick's statement is false. I wrote to him on 28 October, 3 & 24 November 2014 to particularise my concerns. 22. As I have pointed out in my analysis of the history of my apologies and appointment of proxies, many other National Councillors have not attended meetings consistently. 23. I will simply pick out one National Councillor. If you examine the minutes from 12/13 March 2013 to 1 December 2015, G Colbeck, a Tasmanian Communications Division delegate has apologised for 6 meetings – the same number I am being accused of not attending. He was not present on 6 November 2014, 25 May 2015, 27 May 2015, 30 June 3015, 20 August 2015 and 1 December 2015. I am simply illustrating that I am being treated differently to other National Councillors. 24. Rule 7.15.2 states … [the rule is then set out] 25. These words must have some work to do. I could not attend for a good reason. I appointed a proxy where possible. I have complied fully with the rules and no serial breach has been identified. CHARGE 2 - FIDUCIARY DUTY 26. Fiduciary Duty has a special meaning in law. Mr Hicks has not identified the fiduciary duty that I am alleged to breach. There is no "fiduciary" duty to attend meetings. 27. The allegations are vague, ill-founded and should be disregarded. 22 The National Council heard the charges on 3 August 2016. Two resolutions were passed: (1) "That Valerie Butler is guilty of failing to observe the rules of the Union by serially failing to attend meetings of National Council. The conduct in breaching Rule 29.1 was conduct on an ongoing basis over a long period of time, amounting to a substantial breach of the Rules of the Union". (2) "That Valerie Butler is guilty of breaching her fiduciary duties as an office (sic) of the Union by serially failing to attend meetings of National Council without good cause. Such conduct conducts gross misbehaviour". 23 Under the Rules, the question of the imposition of penalty is decided by the members of the National Council representing the Communications Division of the CEPU. They met on 19 September 2016 and resolved to remove Ms Butler from all offices within the union. Could reasonable people acting honestly have come to the decision to find Ms Butler guilty and to remove her from all offices? Applicable legal principles 24 The parties agreed that the following passage from the judgment of Dixon J (as he then was) in Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 (Bowen) at 628 sets out the standard by which courts must assess applications of this type: It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive (cf. Maclean v. The Workers' Union (1929) 1 Ch D 602, at pp 620-627; Stuart v. Haughley Parochial Church Council (1935) Ch 452, at p 462; (1936) Ch 32; Lamberton v. Thorpe (1929) 141 LT 638. See also Cleworth v Barrow (1978) 20 ALR 359 at 369 per J B Sweeney, Evatt and Keely JJ ("On any hearing by a court of proceedings such as the present the court considers whether reasonable [people] acting honestly could have come to the decision that the domestic tribunal did"). Consideration 25 If a person validly and in accordance with the relevant rules sends a proxy to represent her, then the person attends the meeting. That is so because a proxy "is a person appointed to represent another person at a meeting or a number of meetings, and authorised to vote on behalf of the latter person": see A D Lang, Horsley's Meetings: Procedure, Law and Practice (Lexis Nexis, 7th ed, 2015) at [16.1]. 26 If a person makes an apology for their non-attendance at a meeting which is accepted, they have a good reason for not having attended the meeting, because they were excused from doing so. 27 Those propositions are, one would have thought, axiomatic. But the National Council either did not understand, or it ignored, them. 28 It follows that the chart that was contained in the charges, if it is to reflect the true position, should read as follows: Meeting Date Attended Date of Notice of meeting 18-Nov-13 Yes 18-Sep-13 19-Nov-13 Yes 18-Sep-13 21-Mar-14 Partial, did not return following lunch break 3-Mar-14 YES (absent for half an hour, with permission) 6-Nov-14 No – provided Appology (sic) YES, apology given and noted 24-Sep-14 25-May-15 No – refused to attend/appoint proxy 15-May-15 27-May-15 No – apology/proxy 25-May-15 30-Jun-15 No-appointed Proxy- John Ellery YES, attended by proxy, noted and accepted; her apology also noted 9-Jun-15 20-Aug-15 No-appointed Proxy- John Ellery YES, attended by proxy, noted and accepted; her apology also noted 11-Aug-15 1-Dec-15 No-appointed Proxy- John Ellery YES, attended by proxy, noted and accepted; her apology also noted 19-Oct-15 29 Putting the matter at its worst for Ms Butler, it is apparent therefore that she "failed to attend" two meetings, not seven. 30 Self-evidently, such a failure cannot be regarded as a "serial" failure to attend, nor could it be regarded as a "substantial breach" of the Rules or "gross misbehaviour" within the meaning of the Rules. Nor could it be regarded, as the second charge asserted, as a "breach of fiduciary duty", whatever that means. In my view, no reasonable people acting honestly could have come to the decision that the National Council did to find Ms Butler guilty of the two charges. 31 The same conclusion must therefore be made in respect of the decision to remove Ms Butler from her office as a national councillor. 32 For those reasons alone, I would allow Ms Butler's application and grant the substance of the relief she seeks. 33 In any event, in light of Ms Butler's case about the threats that were made against her, and the way she was treated – none of which was contradicted – and which is detailed above, she clearly enough had good cause not to attend National Council meetings in person, but instead to send a proxy, as the Rules permitted, and/or to make her apologies. In my view, no reasonable body of national councillors, acting honestly, could have concluded otherwise. 34 Senior counsel for the first to third, 10th to 17th and 19th to 35th respondents, Mr Borenstein SC, described as his "principal submission" that the Court "should not, in this case, attempt to second guess the decision which was made by the National Executive in the way in which it [was] … submitted on behalf of the applicant". He submitted that the national councillors "no doubt, had a range of experiences and knowledge which they brought to the table from their time in the organisation, and in addition to the documents, there is also material which they would have received by way of the oral submissions and questions and answers which occurred". 35 The gist of counsel's principal submission is that the National Council may well have believed that Ms Butler was part of a group from the Communications Division of the CEPU who, for their own reasons, were acting in concert to ensure that at crucial times at some of the meetings, they rendered the meeting inquorate and that they were entitled to take that into account in voting to find her guilty of the charges and remove her from office. 36 The parties agreed on the content of the following document, about who attended and who departed four of the seven meetings the subject of the charges laid against Ms Butler. It reads as follows: 37 Senior counsel submitted as follows: [W]e say that the applicant here would have to persuade you that acting honestly and bona fide the members of the National Council could not find that they were [in] substantial breaches of the rules. And we addressed your Honour … [about] the sequence of meetings where Ms Butler and others stayed away and defeated the quorum of the meetings and so on. We rely on all of that to say to your Honour that your Honour doesn't have a sound basis to uphold Ms Butler's allegation that it could not honestly be found by these people on the National Council that her behaviour constitute[s] a substantial breach of the rules. There are those three meetings where they defeated the quorum, and there was the other meeting where there was the order of the Federal Court which she didn't comply with. 38 The reference to the order of this Court is to an order of Tracey J made on 18 June 2015 that Ms Butler attend the meeting of the National Council on 30 June 2015. (How and why the order was made was not able to be explained.) 39 The same general submission was also put in these terms: It's not just simply a matter of whether she had given a proxy or given an apology. If on an evaluation of the course of her behaviour over a period of time they form[ed] the view that in filing her proxies and in filing her apologies she was not acting genuinely, we submit it was open to them, to make the finding which they did. It was open to them, to form a view that she had manipulated the system to achieve a particular end. And that's – they are matters that are within the minds of the people in the National Council. We can't say what they – what their evaluation was, but it would be open to them, we say, to form a view of that kind on the material that was available, and we remind your Honour in particular of the sort of goings-on which happened in the meetings in March of 2014 and May of 2015. So we say that would be open, notwithstanding the proxy and the apologies. Those tools are available, but the council could form the view that they weren't genuinely used. 40 Those submissions must be rejected. Unless the governing rules provide to the contrary (which they do not here), "there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of natural justice": Bowen (1948) 77 CLR 601 at 631 per Dixon J, quoting O'Connor J in Dickason v Edwards (1910) 10 CLR 243. In this case, Ms Butler was not charged with acting in concert with others to render the meetings inquorate, or anything of the kind. In my view, if the national councillors did find Ms Butler guilty of the two charges on that basis (which is a purely speculative proposition in any event), they would have done so in breach of their obligation to afford her procedural fairness. In any event, as counsel for Ms Butler submitted, the notion that she engaged in some conspiracy to render meetings inquorate is contradicted by the evidence before the national councillors, for these reasons. 41 First, as to the first of the meetings upon which the respondents rely for their "inquorate collusion" case, namely the meeting on 21 March 2014, the minutes at agenda item 2 prove that Ms Butler was present at the meeting at that time, stayed there, spoke against the motion, and the resolution was put, moved and carried. She then left the meeting at 12:30, in accordance with her previous advice to the meeting. That would be a strange strategy to adopt to try to render a meeting inquorate. And the meeting was at no time inquorate. 42 Secondly, at the meeting held on 6 November 2014, Mr Hicks informed the meeting that the fact that no representatives of "The Victorian T&S" (of which Ms Butler was part) were present was for what he himself described as "genuine reasons". That suggests that even Mr Hicks did not regard Ms Butler's non-attendance at that meeting as giving rise to any criticism. 43 Thirdly, as to the meetings that Ms Butler did attend via proxy or for which she gave an apology which was accepted by the meeting, including the meeting that she was ordered to attend by Tracey J, as counsel for Ms Butler submitted: "it is not open for reasonable people acting honestly to find that this is evidence of part of a concerted action to render meetings inquorate". 44 For those reasons, I do not accept that it would have been open to the national councillors to find that Ms Butler had participated in an arrangement with others to render any meeting inquorate. If they had, they would have denied her procedural fairness, and they would have acted other than honest councillors acting reasonably. 45 Before turning to the next issue, I should address the allegation contained in what are in effect particulars to the first charge (at [17] above). Those particulars allege that Mr Hicks had: (1) offered and, in the case of the meeting on 2 May 2015, arranged for private security guards to attend at meetings of National Council; (2) offered to facilitate Ms Butler attending meetings of National Council via telephone; and (3) requested her to advise what further steps she considers necessary or appropriate to facilitate her attendance, and that Ms Butler still failed to attend and failed to say what steps she believed were necessary or appropriate to "facilitate" her attendance the meetings. Those failures to do so meant, so it was alleged, that she had no good cause for failing to attend the meetings. Unsurprisingly, Mr Borenstein SC did not persist with those contentions in this proceeding. The idea that an elected representative, or any member of a union, can only safely attend an official union meeting via telephone, or in person only in the presence of security guards, is preposterous. So too is the notion that it is for the member, not the governing body, to come up with ways that she or he may safely attend. 46 Although it is not necessary for me to do so in light of the view I take about the issues discussed above, I shall proceed now to deal with the bias point. were messrs mcvee and metcher Invincibly biased? Applicable legal principles 47 Ms Butler submits that Messrs McVee and Metcher, who sat on the National Council at the meeting that voted to find her guilty of the two charges, and who voted in favour of the motion that carried to that effect, and who also sat on the meeting of the National Council representing the Communications Division for the purpose of determining penalty, were invincibly biased against her, and that they should have acceded to the requests made of them to recuse themselves. 48 "Invincible" in this context means "a bias that is incapable of being remedied by reason or argument during the period up to the making of the [National Council's] decision": see Cains v Jenkins (1979) 42 FLR 188 at 195 per J B Sweeney and St John JJ. Ms Butler contends that such a bias is to be inferred from their conduct: see Cains v Jenkins (1979) 42 FLR 188 at 195 ("[i]n many cases bias is inferred from previous conduct or a history of a relationship between contestants"). She does not press a case against Mr O'Donnell because his name appears in the minutes as "attending" and as an "apology", and it is therefore unclear whether he participated or not. 49 As Finkelstein J explained in Haritou v Skourdoumbis [2002] FCA 116 at [13]: The second complaint is that the respondents were disqualified from hearing the charges against Mr Haritou because of their "invincible bias" against him. This is an appeal to the rules of natural justice. As to this a number of things can be said. The first is that we are not dealing with a statutory tribunal, or a person acting in pursuance of a prerogative power, but with a domestic body acting under rules which have been agreed by its members. The requirements of natural justice for such a body will be different from those that regulate the conduct of statutory tribunals. One reason for the difference is that in the case of a domestic body the members have agreed to abide by a set of rules and the authority of a committee to enforce them. In the nature of things, such a committee may have predilections and prejudices resulting from their association with members. An apprehension of bias could exist for all sorts of reasons. So, if an apprehension of bias was a disqualifying consideration (as it would be in the case of a statutory tribunal), the consensual rules would be largely unworkable: see generally Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. On the other hand, the cases do establish that where a member of a committee is "invincibly biased" against a person the subject of disciplinary proceedings before a domestic body, such as when a person who has promoted the charge and supports it as the prosecutor seeks to take part in the hearing of the charge, that person is disqualified from doing so: Dickason v Edwards (1910) 10 CLR 243. In Australian Workers' Union v Bowen No 2 (1948) 77 CLR 601 proceedings for relief against the expulsion of the applicants from a trade union arose out of a bitter and protracted power struggle in which the accused members, and the Executive which dealt with them, belonged to opposing factions. The High Court decided (by majority) that while the mere apprehension of bias would not disqualify the committee from hearing the charges against members who came from an opposing faction, if the members were "invincibly biased" against the accused as a result of his participation in the controversy their decision would be vitiated. 50 In Maloney v NSW National Coursing Association [1978] 1 NSWLR 161 at 171 per Glass JA (with whom Hope and Hutley JJA agreed) said: In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration: Allinson v General Council of Medical Education and Registration, per Lord Esher MR The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate… … A domestic tribunal obliged by the general law to observe the minimum requirements of justice must give notice of the charge being preferred, extend an adequate opportunity to present a defence and concede all the other incidental safeguards of a fair trial which are covered by the audi alteram partem principle. Nothing less than a clear dispensation in the rules could exclude these requirements. Similarly with respect to the disqualification attaching to a party who is in the position of a litigant qua the party charged, as Mr Bell was, or whose mind is imbued with actual bias with respect to the issues to be judged or the member to be tried. But for reasons already given I am of opinion that suspected bias on the part of a member of a domestic tribunal such as the committee of the defendant association does not disqualify him, even if there be no rule which expressly, or by implication, so provides. (Footnotes omitted.) 51 This is not a case where the aggrieved party says that she was denied procedural fairness because a member of the tribunal (here, the National Council) that sat in judgment both promoted the charge and supported it as prosecutor: cf Bowen (1948) 77 CLR 601 at 631. Rather, Ms Butler says that, like the seven members of the NSW Branch of the Australian Workers' Union who were expelled or dismissed in Bowen (1948) 77 CLR 601, that Messrs McVee and Metcher, "because of the intensity of [their] antagonism to [her]" (Bowen (1948) 77 CLR 601 at 621) were invincibly biased against her; they voted for the resolution to find her guilty; and that the decision to find her guilty and the decision to remove her from office are therefore vitiated. (As to the decision being vitiated see Bowen (1948) 77 CLR 601 at 563: "If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate it", citing Dickason v Edwards (1910) 10 CLR 243). Consideration 52 In my view, the evidence, which was not disputed, that Mr Metcher called Ms Butler a "cunt" and told her "I don't just make threats cunt, I carry them out" and that threatening phone calls had been made to, and messages had been left with, Ms Butler which had originated from phone numbers linked to Mr McVee, including a call in which someone said "Gonna get you cunt" means that they are invincibly biased against Ms Butler. 53 The case against Mr O'Donnell is even stronger, given that the (undisputed) evidence is that, in correspondence copied to Mr Metcher and Mr McVee, among many others, he called Ms Butler a "fucker", a "a horrible poisonous thing … that … many despise", a "useless individual no one has any respect for …" and a "horrible, poisonous, useless oxygen thieving nutter". But, as I say, it is unclear whether he attended the August 2016 meeting. 54 In the context of this case, the fact that these things were said some time before the relevant meetings is neither here nor there. They are despicable things to have been said. They are misogynistic and spiteful. And they constitute, in part at least, threats of violence against Ms Butler. 55 In my view, Mr Metcher and Mr McVee ought to have recused themselves from both meetings. Their failure to do so is another reason, if one were needed, why the findings of guilt and the penalty cannot be allowed to stand. One final point 56 Counsel for Ms Butler submitted, relying on the undoubted proposition that the specific offence with which a member may be charged under rules must be one known to the rules (Buchanek v Jones [1989] FCA 134; 29 IR 332 at [8]-[12]), that because, under r 24.2, National Officers can only be removed from office "where they have been found guilty under Rule 25", that the charges must therefore be found in r 25. 57 I do not accept that submission. It is abundantly clear that rr 24 and 25 are to be read together and that no difficulty of the type contended for by Mr White arises. CONCLUSION 58 Accordingly, I propose to grant to Ms Butler the substance of the relief that she seeks in her amended application. I will also ask the parties to make any submission they may wish to make about whether any, and if so what, costs order should be made. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 19 December 2017 SCHEDULE OF PARTIES VID 456 of 2016 Respondents Fourth Respondent: JOAN DOYLE Fifth Respondent: JOHN ELLERY Sixth Respondent: MAUREEN PARKER Seventh Respondent: GREGORY COLBECK Eighth Respondent: PETER MILLER Ninth Respondent: LISA-MAREE BAHLS Tenth Respondent: NICK TOWNSEND Eleventh Respondent: ALEX JANSEN Twelfth Respondent: JAMES PERKINS Thirteenth Respondent: JIM METCHER Fourteenth Respondent: SHANE MURPHY Fifteenth Respondent: BARRY MCVEE Sixteenth Respondent: JOHN O'DONNELL Seventeenth Respondent: JOHN (NORMAN) TREDREA Eighteenth Respondent: PHIL HUGHES Nineteenth Respondent: NICOLE ROBINSON Twentieth Respondent: BRIAN KERSHAW Twenty-First Respondent: TREVOR GAULD Twenty-Second Respondent: JOHN ADLEY Twenty-Third Respondent: STEVE BUTLER Twenty-Fourth Respondent: JIM MCFADYEN Twenty-Fifth Respondent: LES MCLAUGHLEN Twenty-Sixth Respondent: PETER SIMPSON Twenty-Seventh Respondent: TROY GRAY Twenty-Eighth Respondent: GARY CARUTHERS Twenty-Ninth Respondent: GLEN MENZIES Thirtieth Respondent: PADDY MCRUDDEN Thirty-First Respondent: DAVE BROADLEY Thirty-Second Respondent: THEO SAMARTZOPOULOS Thirty-Third Respondent: BRIAN BINTLEY Thirty-Fourth Respondent: GARY O'HALLORAN Thirty-Fifth Respondent: MICHAEL WIECH