Egan v Maher (No 2) [1978] FCA 19; (1978) 35 FLR 252 * (This Case Was Heard In Conjunction With Egan v Maher (No 1) (1978) 35 FLR 197 and O'Neill v Egan (1978) 20 ALR 421 ) (8 June 1978)

FEDERAL COURT OF AUSTRALIA

EGAN v. MAHER (No. 2) [1978] FCA 19; (1978) 35 FLR 252 *(This case was heard in
conjunction with Egan v. Maher (No. 1)
[1978] FCA 18; (1978) 35 FLR 197 and O'Neill v. Egan (1978) 20 ALR 421 )
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Smithers(1), Evatt(2), Northrop(3) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance - Resolution of committee of management removing secretary from office - Appointment of assistant secretary to casual vacancy - Rule preventing dual incumbency of offices - Absence of express resignation from office of assistant secretary - Invalidity of resolution removing secretary from office - Invalid appointment to casual vacancy - Whether implied resignation by assistant secretary on purported appointment to casual vacancy - Resignation by operation of law - Concept of election - Whether election between alternative and inconsistent rights - Basis of justification of claim to office of secretary - Conduct justifiable on basis of election - Conciliation and Arbitration Act 1904, s. 141. The Conciliation and Arbitration Act 1904 provides by s. 141(1) that the court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.

The rules of an organization provided by r. 14 - Officers - "For the purpose of this rule the term officer shall mean only those persons holding the following positions: national president, national vice-president, national secretary-treasurer and national assistant secretary. Such officers shall be elected by and from the national council and, if a delegate, upon election shall cease to be a delegate from any branch whilst holding their respective positions . . . No person shall hold at any one time more than one of the offices mentioned in this rule". Rule 12 provided by par. (c): "In the event of any vacancy occurring on the national executive, national council shall appoint another member from amongst the members of national council to fill the vacancy. Any member so appointed shall hold office for the remaining portion of the retiring member's term of office". Rule 19 - Duties and rights of national assistant secretary - provided by par.(b) . . . that the duties of the national assistant secretary shall be: "in the absence of the national secretary-treasurer, he shall assume the full duties of the national secretary-treasurer". No rule dealt expressly with resignation from office.

At the biennial meeting of the national council of the organization in 1972, E. and G. were elected to the offices of national secretary-treasurer and national assistant secretary respectively for a six-year term. At its 1974 biennial meeting national council resolved upon the removal of E. from office as national secretary-treasurer and that G. be appointed to fill the casual vacancy therein. G. did not subsequently expressly resign from office as national assistant secretary having received legal advice as to the questionable validity of E.'s removal from office.

In separate proceedings initiated under s. 141, E. obtained an order that the respondents to those proceedings, the members of the national council, should observe the rules of the organization by recognizing E. as national secretary-treasurer. Further proceedings were initiated by E. under s. 141 seeking, amongst other things, an order that the respondent G. cease to hold himself out as national assistant secretary.

Held, per Evatt and Northrop JJ. (Smithers J. dissenting) that the rule nisi should be made absolute because: (1) As r. 14 prevented the holding of both offices, G., by his conduct in purporting to assume the office of national secretary-treasurer, had, in law, impliedly resigned from office as national assistant secretary.

Iron Ship Coating Co. Ltd. v. Blunt (1868), 3 LR CP 484, applied.

Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964), 111 CLR 41, per Kitto J., at pp 41, 56, and Sargent v. A.S.L. Development [1974] HCA 40; (1974), 131 CLR 634, per Mason J., at pp 655 et seq., considered.

Garden Gully United Quartz Mining Co. v. McLister, (1875) 1 LR App Cas 39, distinguished.

(2) Such a resignation remained unaffected by the non-existence, in law, of a casual vacancy in the office of national secretary-treasurer.

Per Smithers J. - (3) G. had not, by his conduct in purporting to act as national secretary-treasurer, resigned, by operation of law, from office as national assistant secretary. Such resignation by operation of law would arise only where the conduct said to give rise to such resignation was justifiable only on the basis of an election having been made between alternative and inconsistent rights, whereas G.'s claim to the office of national secretary-treasurer and his conduct in relation thereto was justifiable, if at all, by reference to the validity of his appointment according to the rules of the organization. Whether G. remained in office as national assistant secretary was to be similarly determined.

Consideration of the concept of election at common law and equity and U.S.A. authorities in relation thereto.

Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964), 111 CLR 41, per Kitto J., at p 56, and Sargent v. A.S.L. Development [1974] HCA 40; (1974), 131 CLR 634, per Mason J., at pp 641 et seq., explained and distinguished.

(4) As there was, in law, no casual vacancy in the office of national secretary-treasurer, G. had not been validly appointed to that office; r. 14 did not operate so as to prevent G.'s continuing in office as national assistant secretary as that rule had no application where a member holding one office mistakenly laid claim to another.

Iron Ship Coating Co. Ltd. v. Blunt (1868), 3 LR CP 484, distinguished.

HEARING

Melbourne, 1977, September 26; November 14-18, 22, 23, 24, 25, 29, 30; December 1, 2, 5-9, 22; 1978, March 29, 30; April 3, 4; June 8. 8:6:1978

RULE NISI.

A member of an organization sought an order under s. 141 of the Conciliation

and Arbitration Act 1904 directing the respondent, the national assistant secretary, to perform the rules of the organization by ceasing to hold himself out as national assistant secretary of the organization and that the remaining respondents cease to recognize him as national assistant secretary of the organization.

K. R. Handley Q.C. and R. C. Kenzie, for the applicant.

B. J. Shaw Q.C. and D. M. Ryan, for the respondents.
Cur. adv. vult.

Solicitors for the applicant: Bryan Vaughan & Co.

Solicitor for the respondents: A.J. Macken.

DECISION

June 8.

The following judgments were delivered.
SMITHERS J. In this case the court made orders on 8th December, 1977, that

specified officers of the Shop Distributive and Allied Employees' Association (S.D.A.) should cease to recognize the respondent Edward Goldsworthy as the national assistant secretary of that organization and that the respondent Edward Goldsworthy cease to hold himself out as the national assistant secretary of the organization. At the time of the making of these orders I intimated that I was unable to concur therein. The basis upon which the orders were made was that the office of national assistant secretary theretofore held by Mr. Goldsworthy was terminated by operation of law in the following circumstances. (at p254)

2. There is no federal rule of the organization containing express provisions on the subject of resignation from office by a national officer. Rule 14 as in force at the relevant date was in the following terms: "14. Officers. For the purpose of this rule the term officer shall mean only those persons holding the following positions: national president, national vice-president, national secretary-treasurer and national assistant secretary. Such officers shall be elected by and from the national council and, if a delegate, upon election shall cease to be a delegate from any branch whilst holding their respective positions. At the expiration of their term of office they shall be eligible for re-election. The term shall not include any person holding office of branch only. No person shall hold at any one time more than one of the offices mentioned in this rule". Rule 12 (c) was in the following terms: "In the event of any vacancy occurring on the national executive, national council shall appoint another member from amongst the members of national council to fill the vacancy. Any member so appointed shall hold office for the remaining portion of the retiring member's term of office". (at p254)

3. At the biennial meeting of the national council held in October 1972, Mr. Egan was elected to the office of national secretary-treasurer and Mr. Goldsworthy was elected to the office of national assistant secretary. Each was to hold office until the biennial meeting of national council to be held in October 1978 and each was ex officio a member of the national executive. At its biennial meeting in October 1974, the national council purported to remove Mr. Egan from his office of national secretary-treasurer. Subsequently at the same meeting national council passed the following two motions: "THAT there being a casual vacancy in the office of national secretary-treasurer Mr. Goldsworthy be and he is hereby appointed to fill the casual vacancy." "THAT in consequence of the appointment of Mr. Goldsworthy to fill the casual vacancy in the office of national secretary-treasurer, the registered office of the association be established at 103 Wright Street, Adelaide until otherwise determined by national council." Following the passing of these motions, Mr. Goldsworthy, although not expressly resigning his office of national assistant secretary, purported to hold the office of national secretary-treasurer. He performed the duties and exercised the powers imposed and conferred by the federal rules on the holder of that office. He held himself out as and acted as if he was the national secretary-treasurer of the S.D.A. At no time did he purport to exercise these powers pursuant to the power conferred on the national assistant secretary by r. 19 (b) namely: "19. Duties and rights of national assistant secretary. The duties of the national assistant secretary shall be to: . . . (b) in the absence of the national secretary-treasurer, he shall assume the full duties of the national secretary-treasurer." (at p255)

4. Immediately prior to the passing of these motions, Mr. Goldsworthy received legal advice that Mr. Egan might be able to challenge successfully the validity of the motion purporting to remove him from office and in that event the appointment of Mr. Goldsworthy to that office would be invalid and therefore Mr. Goldsworthy should not resign his existing office. Accordingly Mr. Goldsworthy formed the intention not to resign from his office of national assistant secretary but after the passing of the motions he held himself out as holding the office of national secretary-treasurer. (at p255)

5. On 25th August, 1975, in the matter of Egan v. Harradine (1975) 25 FLR 336 the Australian Industrial Court ordered that the respondents therein should obey the rules of the organization by recognizing Mr. Egan as national secretary-treasurer. From the reasons of the court it is apparent that these orders reflected a finding by it that a motion of the national council dismissing Mr. Egan from the office of national secretary-treasurer was null and void because it was carried in circumstances in which natural justice had not been extended by the national council to him. It follows that Mr. Egan was not removed from office and has at all times material continued to be the national secretary-treasurer of the organization. It is a consequence of this that the recital in the motion of the national council in October 1974 purporting to appoint Mr. Goldsworthy national secretary-treasurer that there was a casual vacancy in the office of national secretary-treasurer was contrary to fact. There was no casual vacancy and as a result the motion appointing Mr. Goldsworthy national secretary-treasurer could not and did not have any effect. He never did hold that office and in purporting to hold it he was erroneously claiming an office to which he had no legal title. (at p256)

6. The question is, however, whether by his actions he lost his office of national assistant secretary. In the circumstances referred to above, that part of r. 14 which provides that "no person shall hold at any one time more than one of the offices mentioned in this rule" had no application in relation to Mr. Goldsworthy's occupancy of the office of national assistant secretary. At no time did he hold any office other than the latter. Of course Mr. Goldsworthy purported to take up the office of national secretary-treasurer and asserted that he held that office. But r. 14 does not operate upon a situation in which a member having one office in the organization mistakenly claims another. The situation might well be different if the resolution appointing Mr. Goldsworthy to the office of national secretary-treasurer had been valid. Thus in the decision of the Court of Exchequer Chamber Iron Ship Coating Co. Ltd. v. Blunt (1868) 3 LR CP 484 where the articles of a joint stock company provided that any director who should accept or hold any office under the company other than manager should thereupon cease to be a director, a person who held the office of secretary of the company was elected as a director. It was held that the resolution appointing him a director "involved" his resignation of the office of secretary. But it does not appear that the same result would have followed had the election and resolution been invalid. I do not think it would. (at p256)

7. Accordingly, Mr. Goldsworthy could lose his office of national assistant secretary only if he resigned expressly or impliedly, or if he were deprived of the position by operation of law. I do not think that on the facts disclosed an inference arose that Mr. Goldsworthy resigned from the position of national assistant secretary. His conduct was compatible with an appreciation by him of the likelihood that Mr. Egan would challenge his appointment and an attitude on his part that his continued occupancy of the position of national assistant secretary depended upon the operation of r. 14. (at p256)

8. Knowing that his appointment as national secretary-treasurer might be challenged Mr. Goldsworthy did not resign at the time of or as a condition of that appointment. It was contended that although Mr. Goldsworthy had no intention of resigning his position of national assistant secretary unless at any rate, his appointment as national secretary-treasurer was legally valid, nevertheless a resignation by him happened by operation of law. It was contended that the conduct of Mr. Goldsworthy which was critical in causing this situation was that of purporting to act as national secretary-treasurer. (at p256)

9. It is no doubt a sound view that an act performed by a person consistent only with a determination or election by him that he has given up some existing right or adopted a particular stand concerning his legal relations with another may operate, whatever his intention, to bind him to that determination or election. As soon as he performs acts or omissions "justifiable only if he has made that determination or election" then the law annexes to that conduct, the legal consequences of the election disclosed by it; per Kitto J. in Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964) 111 CLR 41, at p 56 . In that case, it was pointed out by Kitto J. that the operation of the doctrine of election does not depend upon intention, rather, "It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other" (1964) 111 CLR, at pp 41, 55 . (at p257)

10. I think it is difficult to apply those words to the situation in which Mr. Goldsworthy found himself. His only duty was to obey the rules of the organization. His conduct could be "justifiable" only if it was in accordance with that duty. As it turned out his purported occupancy of the position of national secretary-treasurer was contrary to the rules because his appointment was invalid. According to the rules therefore he never was national secretary-treasurer. It follows that his ostensible occupancy of the position was not legally justifiable at all. To my mind just as the validity of his occupancy of the position of national secretary-treasurer was to be determined by reference to the rules so was his occupancy of the position of national assistant secretary. (at p257)

11. The only "election" which Mr. Goldsworthy really made was to act on the basis that, according to the rules, he had been appointed national secretary-treasurer. If the basis was sound then he was national secretary-treasurer and r. 14 would operate. If not, r. 14 was not involved. The words of Kitto J. in Tropical Traders Ltd. v. Goonan (1964) 111 CLR, at pp 41, 55 were spoken, in particular, in relation to cases of contract where the rights of the parties will vary according to their conduct. They are apt to describe the situation where one party to a legal transaction adopts one or two courses legally open to him, gains the benefit of that course and is thereafter bound thereby. The rights and duties of the parties are thereafter determined by reference to that conduct. But that does not happen where, whatever the conduct of the parties, it is the rules which govern the legal rights and liabilities of the organization and its members, not what they assert and not what offices they may wrongfully purport to hold. (at p257)

12. The sentence quoted from the judgment of Kitto J. assumes that the position taken up by the party electing is one which, on the basis according to which it is justifiable, is legally open to him. In this case the position taken up by Mr. Goldsworthy, namely that he was national secretary-treasurer, was never legally open to him. It was pointed out by Mason J. in Sargent v. A.S.L. Development [1974] HCA 40; (1974) 131 CLR 634, at pp 641 et seq that a person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e., when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or performance of the contract. But in the events which had occurred Mr. Goldsworthy did not have alternative and inconsistent rights concerning the offices of national secretary-treasurer and national assistant secretary of the organization. He had no rights at all in relation to the office of national secretary-treasurer. (at p258)

13. Support for this view may be found in a number of decisions of United States Courts. Thus Holmes J. in delivering the opinion of the Supreme Court in Bierce v. Hutchins [1907] USSC 97; (1906) 205 US 340, at pp 346-347 summarized the law relevant to this question as follows: "Election is simply what its name imports; a choice, shown by an overt act, between two inconsistent rights, either of which may be asserted at the will of the chooser alone . . . The fact that a party, through mistake, attempts to exercise a right to which he is not entitled, does not prevent his afterwards exercising one which he had and still has unless barred by the previous attempt." (at p258)

14. Similarly in Doyle v. Hamilton Fish Co. (1916) 234 F 47 where the second Circuit Court of Appeals dismissed an appeal from a decision of Learned Hand J. it adopted in its entirety his Honour's judgment which contained the following statement: "As to the defence of an election, based upon the unsuccessful effort to dispossess the lessee upon allegations that there was no lease it is enough to say that a party has an election only between existing, not supposed rights: Bierce v. Hutchins [1907] USSC 97; (1906) 205 US 340 . The plaintiff could not destroy his rights under the lease by mistakenly following other supposed rights which turned out not to exist. That would be to put him, not to election, but to a correct estimate of his right under pain of forfeiture" (1916) 234 F, at p 51 . See also Asher v. Pegg (1909) 123 NW 739 and American Jurisprudence, 2nd ed., (1966), vol. 25, p. 652. (at p258)

15. It is possible to contemplate that in the situation in issue action might have been taken to appoint some person to the position of national assistant secretary. Had this happened questions of estoppel might have arisen. But this did not happen. On the evidence, it is reasonable to infer that such action was not taken by the national council because a significant portion of its members understood the basis upon which Mr. Goldsworthy was acting. His conduct was "justifiable" in law only if he were validly appointed national secretary-treasurer. But it is another question whether in the relevant sense it was justifiable only if he had also resigned from the position of national assistant secretary. I do not think it was. The claim by Mr. Goldsworthy to the position of national secretary-treasurer was justifiable, if at all, not by reference to any resignation by him of his position of national assistant secretary. It was justifiable or otherwise by reference to the validity of his appointment as national secretary-treasurer. His occupancy of the office of national assistant secretary was something aliunde the justification of his claim to be national secretary-treasurer. If he were validly appointed as national secretary-treasurer, then the resignation from the other office was involved as an incident or consequence thereof. But otherwise it was irrelevant to his assertion that he was the national secretary-treasurer. If he had previously actually resigned from the position of national assistant secretary that would not have made his assertion that he was national secretary-treasurer justifiable in the relevant sense. (at p259)

16. In cases of contract such as discussed in Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964) 111 CLR 41 where the conduct of one party to the contract exhibits an intention, for example, to refrain from rescinding a contract although entitled to do so and thereby affirms that the contract is one still on foot, it is reasonable to say that such conduct is justifiable only on the basis that an election has been made to keep the contract on foot. In such case each party has the benefits and burdens of the contract as one so remaining on foot. (at p259)

17. The doctrine of election at common law differs from that of election in equity. The latter operates to fasten upon the conscience of a person taking under a deed or will by refusing to allow him to take the benefit of the disposition in his favour except upon satisfaction of certain conditions. But at common law election rests upon a basis of what is thought to be fair as between the parties. Cf. per Mason J. in Sargent's case (1974) 131 CLR, at p 654 . When a party has elected to exercise one of his inconsistent alternative legal rights and thereby crystallizes his legal relations with another the basis of fairness in his being held thereto is apparent. But in the present case it is hard to see the fairness in Mr. Goldsworthy being deprived of his office of national assistant secretary and failing ever to have had that of national secretary-treasurer. If he had been in a position to elect between being national secretary-treasurer or being national assistant secretary that would have been one thing. But he could not do that. (at p259)

18. No other party is shown to have altered his position on the basis that Mr. Goldsworthy was thought to have resigned as national assistant secretary. The national council did not take or refrain from any action on that basis. The evidence suggests that the national council was aware of the likelihood of a challenge by Mr. Egan to his dismissal and the appointment of Mr. Goldsworthy as national secretary-treasurer and understood that Mr. Goldsworthy's position depended in all respects on the validity or otherwise of his appointment. (at p260)

19. Accordingly I am unable to concur in the order made herein. (at p260)

EVATT J. I have had the opportunity of reading the reasons for judgment herein of Northrop J. I agree with those reasons and have nothing to add. (at p260)

NORTHROP J. This is a proceeding commenced in the Australian Industrial Court. Although prior to 1st February, 1977, the Australian Industrial Court, pursuant to s. 141 (2) of the Act, had made interim orders in this proceeding, the hearing of the proceeding had not commenced immediately before that date and therefore was transferred to the Federal Court of Australia: the Federal Court of Australia (Consequential Provisions) Act 1976, s. 4(2). The same order and reasons for judgment would have been given if the proceedings had been continued in the Australian Industrial Court. (at p260)

2. This is the return of a rule nisi granted on 3rd October, 1975, in which the claimant, Mr. Egan, seeks orders pursuant to s. 141 of the Act directing the respondents to perform and observe the rules of the S.D.A. The rule nisi raises a number of matters but the only issue heard and determined related to the office of national assistant secretary. The relevant orders sought are set out in pars. 5 (a) and 6 of the rule nisi and are to the effect that specified officers of the S.D.A. "cease to recognize the respondent, Edward Goldsworthy, as the national assistant secretary" of the S.D.A. and that "the respondent Edward Goldsworthy cease to hold himself out as the national assistant secretary" of the S.D.A. (at p260)

3. The facts relevant to decide this issue are of small compass. Rule 8 of the federal rules of the S.D.A. specifies that the four national officers together with delegates of affiliated branches constitute the national council. Rule 14, as in force in October 1974, was as follows: "14. Officers. For the purposes of this rule the term officer shall mean only those persons holding the following positions: national president, national vice-president, national secretary-treasurer and national assistant secretary. Such officers shall be elected by and from the national council and, if a delegate, upon election shall cease to be a delegate from any branch whilst holding their respective positions. At the expiration of their term of office they shall be eligible for re-election. The term shall not include any person holding office of branch only. No person shall hold at any one time more than one of the offices mentioned in this rule." (at p261)

4. If a delegate is elected to a national office, r. 8 (d) provides that the branch which the outgoing delegate represented shall elect another delegate to fill that vacancy. The national council meets biennially and at such other times as national council deems necessary (r. 7) and pursuant to r. 15 (b) the elections to the office of national secretary-treasurer and to the office of national assistant secretary are held at each third biennial meeting of national council, while the elections to the other two national offices are held at each biennial meeting of national council, (r. 15 (a)). The federal rules of the S.D.A. contain no express provision enabling a national officer to resign from his office. Rule 12 provides for the constitution of the national executive which consists of the four national officers and at least three other members elected by and from the national council at each biennial meeting of national council. Rule 12 (c) provides as follows: "In the event of any vacancy occurring on the national executive, national council shall appoint another member from amongst the members of national council to fill the vacancy. Any member so appointed shall hold office for the remaining portion of the retiring member's term of office." (at p261)

5. The effect of these rules can be stated shortly. Unless a person is a member of national council, either as a national officer or as a delegate, he is not eligible to nominate for a national office and cannot be appointed to fill a casual vacancy on the national executive. (at p261)

6. At the biennial meeting of the national council held in October 1972, Mr. Egan was elected to the office of national secretary-treasurer and Mr. Goldsworthy was elected to the office of national assistant secretary. Each was to hold office until the biennial meeting of national council to be held in October 1978 and each was ex officio a member of national executive. At its biennial meeting in October 1974, the national council purported to remove Mr. Egan from his office of national secretary-treasurer. Subsequently at the same meeting national council passed the following two motions: "THAT there being a casual vacancy in the office of national secretary-treasurer Mr. Goldsworthy be and he is hereby appointed to fill the casual vacancy." "THAT in consequence of the appointment of Mr. Goldsworthy to fill the casual vacancy in the office of national secretary-treasurer, the registered office of the association be established at 103 Wright Street, Adelaide until otherwise determined by national council." Following the passing of these resolutions, Mr. Goldsworthy, although not expressly resigning his office of national assistant secretary, purported to hold the office of national secretary-treasurer. He performed the duties and exercised the powers imposed and conferred by the federal rules on the holder of that office. He held himself out as and acted as if he was the national secretary-treasurer of the S.D.A. At no time did he purport to exercise these powers pursuant to the power conferred on the national assistant secretary by r. 19 (a) namely: "19. Duties and rights of national assistant secretary. The duties of the national assistant secretary shall be to: . . . (b) in the absence of the national secretary-treasurer, he shall assume the full duties of the national secretary-treasurer." (at p262)

7. Immediately prior to the passing of these resolutions, Mr. Goldsworthy received legal advice that Mr. Egan might be able to challenge successfully the validity of the resolution purporting to remove him from office and in that event the appointment of Mr. Goldsworthy to the office would be invalid and therefore Mr. Goldsworthy should not resign his existing office. Mr. Goldsworthy formed the intention not to resign from his office of national assistant secretary but after the passing of the resolution he held himself out as holding the office of national secretary-treasurer. On 25th August, 1975, in Matter B. No. 161 of 1974, the Australian Industrial Court ordered that Mr. Goldsworthy cease to hold himself out as the national secretary-treasurer of the S.D.A. and that the other respondents to that matter recognize Mr. Egan as the national secretary-treasurer of the S.D.A.: see Egan v. Harradine (1975) 25 FLR 336, at pp 390-391 . (at p262)

8. It is my opinion that by purporting to enter into the office of national secretary-treasurer pursuant to the resolutions set out above, Mr. Goldsworthy, in law, impliedly resigned his office of national assistant secretary. Rule 14 prevented him from holding the two offices at the same time. By purporting to enter into the new office of necessity Mr. Goldsworthy must have resigned his other office. The fact that in law there was no vacancy in the office of national secretary-treasurer does not in my opinion render the implied resignation invalid. The resignation was effected by operation of law arising from the conduct of Mr. Goldsworthy. (at p262)

9. During the hearing before us the opinion of the Privy Council in Garden Gully United Quartz Mining Co. v. McLister (1875) LR 1 App Cas 39 was debated at length. Mr. Handley Q.C. who with Mr. Kenzie appeared for Mr. Egan, argued that the decision was authority for the general proposition that where there is an election for an office, that election, even if invalid, necessarily involves the retirement of a person who previously held the office: cf. Wood v. Morris (1975) 25 FLR 391, at p 395 . In my opinion, the Privy Council decision, depending as it does on the particular facts of the case and the particular rules involved, cannot be said, on a proper analysis, to be authority for the general proposition stated. I do not find the decision of assistance in this case. (at p263)

10. In my opinion, the appropriate principle of law is stated clearly by the Court of Exchequer Chamber in Iron Ship Coating Co. v. Blunt (1868) 3 LR CP 484 . In that case the articles of association of a joint-stock company provided that any director who should accept or hold any other office under the company, other than that of manager, should thereupon cease to be a director. A person had been appointed secretary of the company at a salary and while holding that office was elected a director. Thereafter he received salary as a director but he ceased to receive his salary as secretary even though he continued to carry out the duties of secretary. The court held that after his election as director he did not hold the office of secretary. Willis J. said: "The true construction of cl. 69 is this: it was intended to provide that any director accepting an office under the company, other than that of manager, should cease to be a director. That would be so if the offices of secretary and director were offices proper, as in the instances put in Com. Dig. Officer (B. 6), where it is laid down that 'the grant of an office to one who has another office imcompatible, is not good; for, the first office will thereby be void. As, if a forester, by patent for life be made justice in eyre of the same forest pro hac vice, the office of forester will be void; for, it is imcompatible, being subject to correction by the justices in eyre.' Several other illustrations are there put: amongst them, that "the chief justice of C.B. cannot be prothonotary or clerk of the papers in the same Court'. This is founded upon a principle which runs through the whole of the law, and is applicable to surrenders by implication. So here, the resolution making Grabham a salaried director must be taken to involve a resignation of the office of secretary. The fact of his having continued to perform the duties of secretary after he had ceased to be the paid servant of the company (which is the only sense in which the word 'office' is used in the clause of the deed relied on), really makes no difference" (1868) 3 LR CP, at p 488 . (at p263)

11. This principle of law should be applied to the facts of this case and in particular, the resolution of the national council appointing Mr. Goldsworthy to the office of national secretary-treasurer must be taken to involve a resignation by Mr. Goldsworthy of his office of national assistant secretary. (at p263)

12. The principle of law stated is consistent with what was said by Kitto J. in Tropical Traders Ltd. v. Goonan (1964) 111 CLR, at p 55 where, in discussing the doctrine of election, (his Honour said that election was not a matter of intention but is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other. The principle of law is consistent also with the opinions expressed in Sargent v. A.S.L. Developments Ltd., per Stephen J. (1974) 131 CLR, at pp 641, et seq and per Mason J. (1974) 131 CLR, at pp 655, et seq . (at p264)

13. For these reasons I would make the order announced by the court on 8th December, 1977, namely, that until a new election shall have been held for the office of national assistant secretary the respondent, Edward John Goldsworthy, cease to hold himself out as national assistant secretary of the S.D.A. and that the remaining respondents cease to recognize him as national assistant secretary of the S.D.A. (at p264)

ORDER

Order accordingly.