RENNIE V BUNN & BUNN v COOK & GOOD v BUNN [1997] IRCA 135

DECISION NO:135/97 IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No QI 1422 of 1995 QUEENSLAND DISTRICT REGISTRY ) BETWEEN: GORDON ANDREW RENNIE (Applicant) AND: DAVID BUNN (First Respondent) AND: JOHN ANDERSON and MICHAEL CONWAY (Second Respondents) AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION (Third Respondent) IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No NI 1619 of 1996 NSW SOUTH WALES DISTRICT REGISTRY) BETWEEN: DAVID BUNN (Applicant) AND: GREG VINES, JAN McMAHON, DAVID ROBINSON & KAREN BATT (Second Applicants) AND: RONALD A. COOK (First Respondent) AND: BRIAN JARDINE and JANET GOOD (Second Respondents) AND: ANITA HAENFLER and MICHAEL TANDY (Third Respondents)

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No NI 2100 of 1996 NSW SOUTH WALES DISTRICT REGISTRY) BETWEEN: JANET PAMELA GOOD (Applicant) AND: DAVID BUNN (First Respondent) AND: SEAN CURLEY, LEIGH DELANEY, PETER KEOGH, BOB TEYMANT, SUE CARLOS, JOHN ANDERSON, KAREN BATT, GREG VINES, DAVE ROBINSON, JAN McMAHON (all being members of the SPSF Federal Executive) (Second Respondents) AND: DAVE ROBINSON, SUE CARLOS, G. BARTIER, S. CURLEY, G. RENNIE, A. SNOW, C. MILES, H. BORRODALE, JOHN ANDERSON, KAREN BATT, PETER KEOGH, M. TRESEDER, D. GREEN, J. McMAHON, S. PINCHES, J. HADAWAY, D. ROBERTSON, R. TEYMANT, GRAHAM KELLY, BRIAN ELLIS, GREG VINES, LEIGH DELANEY, NEIL BAKER, D. ABBOTT (all being members of the Federal Council) (Third Respondents) AND: WENDY CAIRD, VICKY TELFER, SUE MOUNTFORD, MARK SEXTON, DOUG LILLY, SALLY O'LOUGHLIN, GREG VINES, KAREN BATT, DAVE ROBINSON, SUE CARLOS, JOHN ANDERSON (all being members of the National Officers Committee) (Fourth Respondents) AND: THE COMMUNITY AND PUBLIC SECTOR UNION (Fifth Respondent) CORAM: Ryan J PLACE: Melbourne DATE: 21 April 1997 REASONS FOR JUDGMENT RYAN J: On 27 March this year I published reasons for judgment in three proceedings: QI 1422 of 1995 entitled Rennie v Bunn, NI 1619 of 1996 entitled Bunn v Cook, and NI 2100 of 1996 entitled Good v Bunn. Those proceedings had been heard together in Brisbane between 9 and 12 December 1996. In relation to Rennie v Bunn, Mr Boccabella of Counsel for the applicant submitted that I should make an order making absolute the rule nisi granted on 8 December 1995 and should further make certain consequential orders. Mr Haylen QC who appears with Ms Rudland for the respondents indicated that his clients had, on 17 April 1997, filed a notice of appeal in Rennie v Bunn and submitted that I should make no orders in that proceeding until the hearing and determination of the appeal. However, on the view I take of s. 420 of what is now the Workplace Relations Act 1996 ("the Act") the appellate jurisdiction of this Court is only exercisable on an appeal from a judgment of the Court constituted by a single Judge. "Judgment" in turn is defined by s. 4(1) of the Act to mean a judgment, decree or order, whether final or interlocutory or a sentence". In this sense, a judgment, other than an interlocutory judgment, is an order disposing of or determining in whole or in part a matter at issue in the proceeding. It is not to be equated with reasons for judgment of the kind published on 27 March this year. Accordingly, I consider that I should make orders in Rennie v Bunn to this effect: 1. That the rule nisi granted herein on 8 December 1995 be made absolute. 2. That the first and second respondents perform and observe the rules of the CPSU by treating as null and void the resolution purportedly carried by a postal vote of members of the Federal Council of the SPSF Group as notified by the first respondent on 16 November 1995. 3. That liberty be reserved to any party to apply to myself on not less than 72 hours notice in writing to the other parties. Mr Boccabella also sought an order that a motion on notice in Rennie v Bunn which was filed on 2 February 1997 be adjourned to a date to be fixed on not less than three days' notice to the other parties. The substantive paragraphs of that notice of motion were in these terms: "The abovenamed applicant and Clinton Miles, Peter McKay, John Axam, Dennis Bailey, Ian Holmes, Alan Snow and David Brennan ("the applicants") will at 9.30 am (eastern summer time) on Friday 14 February 1997 at the Federal Court Building, 2nd Floor, 451 Little Bourke Street, Melbourne in the State of Victoria move the Court for orders:- 1. That until further order John Anderson, Helen Borradale, Michael Conway and Sean Curley be restrained from obstructing the applicants from participating in any meeting of the Queensland Branch Council ("the Branch Council") and Queensland Branch Executive ("the Branch Executive") of the SPSF Group of the third respondent. 2. That until further order Sean Curley take all steps to inform Gordon Andrew Rennie and Alan Snow of any meeting of the Branch Executive and the applicants of any meeting of the Branch Council. 3. That until further order John Anderson, Helen Borradale, Michael Conway and Sean Curley, William Bor, Terry Crimston, Greg Singh, Julie Davies and Bob Ellis be restrained from conducting or participating in any meeting of the Branch Council and/or Branch Executive unless the applicants have been given due notice pursuant to the Rules of such meetings prior to their occurring. 4. That Sean Curley supply the applicants with copies of the Minutes of all meetings of Branch Council and Branch Executive held since 1 August 1996 and all documents tendered or used during such meetings. 5. That William Bor be joined as a respondent to this action. 6. That, to the extent considered necessary by the Court, Terry Crimston, Greg Singh, Julie Davies and Bob Ellis be joined as respondents to this action. 7. That, to the extent considered necessary by the Court, Clinton Miles, Peter McKay, John Axam, Dennis Bailey, Ian Holmes, Alan Snow and David Brennan be joined as applicants to this action. 8. All orders incidental to allowing the applicants and various members of the Branch Council and Branch Executive to participate in the management of the Queensland Branch of the SPSF Group of the third respondent, (until further order)." It will be clear from the terms of the order sought by that notice of motion and particularly the request for joinder of additional applicants and respondents that it raises matters which go far beyond what are incidental to the issues which I have resolved in Rennie v Bunn. If it can be demonstrated that certain persons have been precluded and are likely to continue to be precluded from exercising a lawful entitlement to participate in meetings of the Queensland Branch Council or Queensland Branch Executive of the SPSF Group, that, I consider, should be done in separate proceedings. However, I shall reserve liberty to any party to apply in Rennie v Bunn should some further order become necessary for the proper working out of the substantive order which I have already indicated. In the election inquiry numbered NI 1619 of 1996 Mr Haylen submitted that, because of the operation of s. 421 of the Act, no order should be made until the hearing and determination of the appeal or foreshadowed appeal in Rennie v Bunn. He further submitted, and was supported in this by Mr Borenstein of counsel, who appeared for the second applicants in the election inquiry, that the conclusion as to the invalidity of the postal ballot of November 1995 exposed what has been called a residual question as to whether persons eligible in each Branch to vote in the election for Federal Secretary may not have been excluded from participation in the ballot. It is true that the issue which I resolved in favour of the applicant in Rennie v Bunn was effectively determinative of the election inquiry. However, that circumstance does not persuade me that the respondents to the inquiry, including the successful candidate in the election, should not obtain, as soon as practicable, the certainty of outcome to which they are, prima facie, entitled. As far as the residual question is concerned, I consider that if further examination of that question reveals that exclusions of the kind suggested may have occurred in numbers sufficient to have affected the result of the election that can form the basis of an application for a fresh inquiry. I shall therefore order in that proceeding: 1. That the Returning Officer proceed formally to declare the result of the election for the office of Federal Secretary of the SPSF group of the CPSU, the subject of the inquiry. 2. That the inquiry into the election for the office of Federal Secretary of the SPSF Group of the CPSU be terminated. In the remaining matter, Good v Bunn numbered NI 2100 of 1996, my initial inclination, as indicated in the reasons for judgment published on 27 March 1997 was that the rule nisi granted on 3 October 1996 should be discharged. However, Mr Kenzie QC who appears with Mr Kimber and Mr Walton for the applicant in those proceedings submitted that a substantive order should be made to the effect that the respondents, other than the CPSU, perform and observe the rules of the union by recognizing certain named persons as officers and financial members of the New South Wales Branch of the SPSF Group. On the other hand, Mr Haylen submitted that if the parties are released from undertakings given while these proceedings were pending there is nothing to suggest that persons entitled to participate in proceedings of Federal organs of the SPSF Group will be precluded from such participation whilst any appeal from my substantive orders is pending. I propose to act on the assurance implicit in that submission and to make no order other than one discharging the rule nisi and another order releasing the relevant parties from undertakings or injunctions restraining them from holding meetings of the Federal Council of the SPSF Group. However, out of deference to the concerns expressed by Mr Kenzie I shall reserve liberty to apply in that matter as well. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of His Honour Justice Ryan. Associate: Date: QI 95/1422 Counsel for the applicant Rennie: Mr L. Boccabella Solicitors for the applicant Rennie: Quinlan, Miller & Treston Counsel for the first respondent Bunn: Mr W. Haylen QC with Ms N. Rudland Solicitors for the first respondent Bunn: Geoffrey Edwards & Co Counsel for the third respondent: Mr W. Haylen QC The Community and Public Sector Union with Ms N. Rudland Solicitors for the third respondent: Geoffrey Edwards & Co The Community and Public Sector Union NI 96/1619 Counsel for the first applicant Bunn: Mr W. Haylen QC with Ms N. Rudland Solicitors for the first applicant Bunn:Geoffrey Edwards & Co Counsel for the second applicants: Mr H. Borenstein Vines, McMahon, Robinson and Batt Solicitors for the second applicants: Slater & Gordon Vines, McMahon, Robinson and Batt Counsel for the first respondent Cook: Mr G. Johnson Solicitors for the first respondent Cook: Australian Government Solicitor Counsel for the respondents: Mr R.C. Kenzie QC Jardine and Good with Mr M. Kimber and Mr M.J. Walton Solicitors for the respondents: Jones Staff & Co Jardine and Good Counsel for the respondents: Mr L. Boccabella Haenfler and Tandy Solicitors for the respondents: Quinlan Miller & Treston Haenfler and Tandy