Re Ralph John Hills, John Lawrence Gallagher, Paul Charles Wheelhouse, Alan Richard Curry and Warren Edward Small v Vincent Higgins, John Oborn, Betty Spears, Colin Hilder, David Edge and the Federated Clerks Union of Australia [1982] FCA 13 (12 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: RALPH JOHN HILLS, JOHN LAWRENCE GALLAGHER, PAUL CHARLES WHEELHOUSE, ALAN
RICHARD CURRY AND WARREN EDWARD SMALL
And: VINCENT HIGGINS, JOHN OBORN, BETTY SPEARS, COLIN HILDER, DAVID EDGE AND
THE FEDERATED CLERKS UNION OF AUSTRALIA
No. NSW 106 of 1981
Industrial law
1 IR 149

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

Industrial law - dismissal from office - rule providing for suspension or expulsion from membership - rule providing for suspension from office - Conciliation and Arbitration Act 1904 - s.133(1)(f), s.140(1)(a).

Industrial law - rules of organisation "oppressive, unreasonable or unjust" - proper construction of rules - implicit limitations imported by the rules of natural justice - Conciliation and Arbitration Act 1904 - s.140(1)(c).

Industrial law - charges against member under Branch rules - charges not authorised by rules - construction of Branch rules.

Industrial law - defects in form of charges - charges against more than one member - charges uncertain and duplex - consequence of such defects - natural justice.

Conciliation and Arbitration Act 1904 - s.140(5D) - s.141(1G)

HEARING

BRISBANE
12:2:1982

ORDER

1. The respondents and each of them (other than the Federated Clerks Union of Australia) perform and observe the rules of the New South Wales Branch of the Federated Clerks Union of Australia by refraining from proceeding further to deal with each of the charges numbered 3,4,5 and 6 set out in the enclosure to the letters to the applicants dated 19 November 1981 signed by the respondent Higgins, copies of which are annexed to the affidavits of the applicants herein, unless such charges are first amended or better particularised to indicate fully and fairly to each applicant charged what is alleged against him.

2. Save as aforesaid the interlocutory orders pronounced herein by Evatt J. are terminated and the Rule to Show Cause is discharged.

DECISION

This is the return of a Rule to Show Cause why orders should not be made pursuant to ss. 140 and 141 of the Conciliation and Arbitration Act 1904 (as amended) (Commonwealth).

The applicants are members of the New South Wales Branch of The Federated Clerks Union of Australia, an organisation of employees registered pursuant to the provisions of the Act. The respondents other than the Union also are members of the New South Wales Branch of that Union and are the elected members of the Central Executive of the Branch.

The Branch Rules provide for Sections comprising members employed in different industries (see e.g. Rules 3 and 41), and permit a Section to adopt By-laws not inconsistent with Branch Rules (see Rule 41 and also Rule 20(i)). Rule 41 also makes provision for elections within Sections. As in the case of the Rules of the Union and the Rules of the Branch, the By-laws of the Section provide for elections every three years.

Each of the applicants is a member of the Section of the New South Wales Branch known as the "Shipping Section". The applicants Hills, Wheelhouse and Gallagher are elected office holders within the Section. However, none of the applicants is an officer as defined in the Branch Rules or for the purposes of the Union Rules. I may say immediately that I have not found it necessary to determine one of the points argued, which was whether an office within the Section is an office as defined in s.4 of the Act.

On 20 November 1981, each of the applicants received a letter signed by the respondent, Higgins. The letter to Mr Hills was as follows -

FEDERATED CLERKS UNION OF AUSTRALIA

NEW SOUTH WALES BRANCH

V. HIGGINS 4th Floor. Labour Council
Secretary Building

377-383 Sussex St., Sydney 2000
Telephone: [phone]

CONFIDENTIAL 19 November 1981

Mr J. Hills,
13/11 Elphinstone Rd.,
SOUTH COOGEE NSW 2030

Dear Mr. Hills,

You have been charged under Rule 35 of the rules of the New South Wales Branch of the Federated Clerks Union of Australia with the infringements of rules set out in the document enclosed with this letter against your name.

The charges against you and against those charged in the same document will be heard and determined by Central Executive at special meetings convened for that purpose as set out below:

Person Charged Date and Time of Meeting Mr A.R. Curry 6.00 pm. 30 November 1981
Mr. W.E. Small 6.00 pm. 2 December 1981
Mr. J. Gallagher 8.00 pm. 2 December 1981
Mr P. Wheelhouse 6.00 pm. 3 December 1981
Mr. J. Hills 8.00 pm. 3 December 1981

All meetings of Central Executive will take place at the date and time indicated at the office of the New South Wales Branch of the Federated Clerks Union of Australia, 4th Floor, 377 Sussex Street, Sydney.

You are reminded of your rights under the rules and a copy of Rule 35 is enclosed for your convenience. Kindly take note that:

(a) Central Executive has power to impose a fine not exceeding $20 and/or to suspend or expel any member of the Union who is found guilty of the misconduct referred to;

(b) Should you fail to attend as required by this summons the Central Executive may proceed to hear and determine the matter in your absence;

(c) A member may tender written submissions in answer to the charge. I am aware from other correspondence and proceedings that you are being or have been advised by Mr. Kenzie of Counsel and Mr. McHugh of Queens Counsel as to your rights and duties under the rules. I understand that the charges enclosed have been expected by you for some time and that you have determined upon the course of action you will take in relation to these charges. If, despite this, you claim to be entitled to an adjournment from the date and time at which the charges against you will be heard or to be entitled to additional particulars you should make such request in writing forthwith for considerations by Central Executive.

Yours fraternally, (Sgd)

V. Higgins
Secretary.

encl; Copy of charges laid pursuant to Rule 35.
Copy of Rule 35.

The letters to the other applicants were, apart from the names and addresses, identical to that sent to Mr Hills.

Each letter enclosed a document in the following terms:

FEDERATED CLERKS UNION OF AUSTRALIA
NEW SOUTH WALES BRANCH
11th November, 1981

TO: MEMBERS OF CENTRAL EXECUTIVE
AS ADDRESSED

RE: CHARGES AGAINST FIVE MEMBERS

(1) Pursuant to Rule 35(a)(2) of the rules of the New South Wales Branch Federated Clerks Union of Australia, I hereby charge each of the following members namely J. HILLS, J. GALLAGHER and P. WHEELHOUSE, with refusing on or about the 30th September, 1981 to obey a lawful resolution of the Central Executive of the New South Wales Branch, Federated Clerks Union of Australia, particulars of which refusal are as follows:-

(1) On Monday 28th September, 1981 the Central Executive of the New South

Wales Branch, Federated Clerks Union of Australia resolved as follows:

"WHEREAS it appears a stopwork meeting of members of the Sydney Shipping Section has been called without consultation with or authority of the NSW Branch for Wednesday 30th September, 1981

AND WHEREAS repeated disregard of directions of Central Executive and breaches of rules have occurred by individuals connected with the Sydney Shipping Section

IT IS HEREBY RESOLVED

1. Each member of the Committee of Management of the Sydney Shipping Section is directed not to be present at and to immediately withdraw his name from any association with the proposed meeting and from any document circular or letter purportedly convening or supporting the holding of the same or any adjournment or continuation of the same;

2. Each member of the Committee of Management is to take all steps necessary to inform the members of the Sydney Shipping Section that the proposed stopwork meeting is unauthorised and has been cancelled by direction of Central Executive;

3. Each member of the Committee of Management of the Sydney Shipping Section is to inform the Branch Secretary forthwith upon receipt of this direction that he will comply with this direction of Central Executive and will encourage all members of the Sydney Shipping Section to do likewise.

4. Each member of the Committee of Management is specifically instructed and directed that if the purported stopwork meeting is proceeded with any member of the Committee of Management present at it or who supports its proceedings or encourages members of the Sydney Shipping Section to be present or to support its proceedings may be called upon to show cause why he should not be dealt with under the Rules.

5. The Branch Secretary is authorised and instructed to bring to the notice of each member of the Committee of Management of the Sydney Shipping Section by letter or telegram to be delivered forthwith the terms of this direction."

(2) Each of the said J. Hills, J. Gallagher and P. Wheelhouse, are or claim to be members of the Committee of Management of the Sydney Shipping Section of the New South Wales Branch, Federated Clerks Union of Australia.

(3) Each of the said J. Hills, J. Gallagher and P. Wheelhouse, was personally notified of the terms of the said resolution of the Central Executive of the New South Wales Branch, Federated Clerks Union of Australia on or about 29th September, 1981.

(4) Each of the said J. Hills, J. Gallagher and P. Wheelhouse, refused to obey the said resolution by:

(a) being party to and supporting a decision of members of the Committee of Management of the Sydney Shipping Section that the said stopwork meeting would go on despite the direction to the contrary made by

resolution of the Central Executive;

(b) being present at and taking part in a stopwork meeting of members of the Sydney Shipping Section of the New South Wales Branch, Federated Clerks Union of Australia held on 30th September, 1981;

(c) not withdrawing his name from any association with the proposed meeting;

(d) not withdrawin his name from any document circular or letter purportedly convening or supporting the holding of the same;

(e) not taking all steps necessary to inform the members of the Sydney Shipping Section that the proposed stopwork meeting has been cancelled by direction of Central Executive;

(f) not informing the Branch Secretary forthwith upon receipt of the said direction of Central Executive that he will comply with the said direction of Central Executive and will encourage all members of the Sydney Shipping Section to do likewise.

2. PURSUANT to Rule 35(a)(2) of the New South Wales Branch, Federated Clerks Union of Australia I hereby charge each of the following members namely J. HILLS, J. GALLAGHER, WARREN EDWARD SMALL and ALAN RICHARD CURRY with refusing on or about the 11th March, 1981 and between that date and 11th November, 1981 to obey a lawful resolution of the Central Executive of the New South Wales Branch, Federated Clerks Union of Australia, particulars of which refusal are as follows:

(1) On Monday 9th March, 1981 the Central Executive of the New South Wales Branch, Federated Clerks Union of Australia resolved (so far as presently relevant) as follows:

"That the Secretary, V. Higgins direct the Shipping Section Committee of Management to immediately take all reasonable steps to cease collecting or instruct those who are collecting the levy which was imposed following a

decision arising from the purported Stop Work Meeting 18.2.81. . .

"That the business of this Branch is the responsibility and duty of the duly elected Central Executive. All Funds expended and collected, including levies, are also the business of the Central Executive.

"Rule 22 and 34 make this position clear.

"Therefore this duly convened and constituted meeting of the Central Executive directs:

"(i) That all monies collected arising from the imposition of a levy upon the members of the Shipping Section of the Branch be refunded immediately by those responsible.

(ii) That Messrs. Small and Curry refund any money that they have received from this levy, whether expressed in the form of wages, donations, expenses or whatever.

(iii) That to facilitate those provisions of the Rules and to ensure compliance with this requirement, Messrs. Small and Curry and members of the Shipping Section Committee of Management shall furnish Secretary Higgins with a true account of all monies collected from the levy since 18.2.81. That the President and Secretary of the Shipping Section be directed to act on behalf of their colleagues and to comply with this direction by 9.30 a.m. Thursday 12th March. In the event that the President and Secretary of the Shipping Section fail to honour this direction, summons will be sought in the name of the Branch against the Shipping Section Committee of Management and Messrs. Small and Curry for the recovery of the said accumulated sum of the levy.

(iv) That the monies refunded shall be placed with the Branch's Auditor who shall give the Secretary Higgins an account of the sum returned.

(v) That the Central Executive shall decide on the most equitable method for its disbursement".

(2) Both of the said J. Hills and J. Gallagher are or claim to be members of the Committee of Management of the Sydney Shipping Section of the New South Wales Branch, Federated Clerks Union of Australia of which the said J. Hills is or claims to be President and the said J. Gallagher is or claims to be Secretary. The said Small and the said Curry claim to be elected Vigilance Officers of the said Shipping Section.

(3) Each of the said J. Hills, J. Gallagher, Alan Richard Curry and Warren Edward Small was personally provided with the terms of the said resolution of the Central Executive of the New South Wales Branch, Federated Clerks Union of Australia on or about Tuesday 10th March, 1981.

(4) Each of the said J. Hills, J. Gallagher, Alan Richard Curry and Warren Edward Small refused to obey the said resolution by:

(a) publishing to members of the said Sydney Shipping Section on or about Wednesday 11th March 1981 a circular of that date which so far as

presently relevant said:

"To All F.C.U. Shipping Section Members 11/3/81

"The Committee of Management and the elected Vigilance Officers of the Section are in receipt of a letter bearing the signature of State Secretary V. Higgins, which threatens them with legal action if they fail to comply with a number of resolutions of the Central Executive (See attached copy)

"The levy will continue to be collected in compliance with the stop work meeting decision of the 18th February, 1981,

". . . . . . . . . . . . . . . . . . . . . . . .

"We would like to take this opportunity of congratulating members for their display of unity in the struggle to have the State Executive recognise the elected vigilance officers, so that they may assume their rightful positions as your direct representatives in industrial matters.

John Hills President
John Gallagher Secretary
For and on behalf of the
Committee of Management and
elected vigilance officers,
W. Small and A. Curry.

". . . . . . . . . . . . . . . . . . . . . . . .

"We repeat: "The levy will continue"".

(b) not ceasing collecting the levy which was imposed following a decision arising from the purported Stop Work Meeting 18.2.81.

(c) not refunding immediately all monies collected arising from the imposition of a levy upon the members of the Shipping Section of the Branch;

(d) in the case of the said Small and Curry - not refunding any money that they have received from this levy, whether expressed in the form of wages, donations, expenses or whatever;

(e) not furnishing Secretary Higgins with a true account of all monies collected from the levy since 18.2.81.

3. PURSUANT to Rule 35(a)(8) of the rules of the New South Wales Branch, Federated Clerks Union of Australia, I hereby charge each of the following members, namely J. HILLS, J. GALLAGHER WARREN EDWARD SMALL and ALAN RICHARD CURRY with on or about 11th March 1981 advocating or supporting disobedience by members to the rules or lawful decisions of the Central Executive, particulars of which are as follows:

(a) Rule 22(a) of the rules of the New South Wales Branch, Federated Clerks Union of Australia provides so far as presently relevant that the Central Executive shall, subject to the review of its actions by the Central Council, have the care control custody superintendence management and administration in all respects of the affairs business funds and property of the Union and without limiting the generality of the foregoing

it may:-

(1) Engage and dismiss all paid servants of the Union and may pay such salaries and allowances as it may deem proper;

. . . . . . . . .

(5) It shall be responsible for organising the Union and may establish Sections and Sub-Sections and Local Committees and may disband, amalgamate or reorganise such sections, sub-sections or local committees.

(6) It may appoint representatives of the Union and may dispense with the services of any representative.

(7) It shall be responsible for all expenditure of the Union.

(b) Rule 22(b) of the rules of the New South Wales Branch, Federated Clerks Union of Australia, provides so far as presently relevant that all acts or decisions of the Central Executive shall have full force or effect and have full validity notwithstanding anything otherwise provided in these Rules until such acts or decisions are reversed or altered or otherwise dealt with by the Central Council.

(c) Rule 25 of the rules of the New South Wales Branch, Federated Clerks Union of Australia provides so far as presently relevant that the Secretary shall keep accounts of all receipts and expenditure and of all moneys received on account of contributions, fines, levies, donations etc., shall keep a true and correct account between the Union and its members shall receive and bank all moneys collected by and on behalf of the Union and shall personally or by deputy collect all Union dues, fines or levies from members or sections and for this purpose shall institute proceedings for the recovery thereof.

(d) Rule 34 of the rules of the New South Wales Branch, Federated Clerks Union of Australia provides so far as presently relevant that the Central Council shall have the power to impose levies on members.

(e) Rule 11 of the rules of the New South Wales Branch, Federated Clerks Union of Australia provides so far as presently relevant that members shall pay their contributions etc. to the office of the Union or to authorised representatives of the Union only and shall not accept any receipt other than on the numbered official receipt form of the Union.

(f) By a document dated 11th March, 1981 addressed and circulated on or about that day to all FCU Shipping Section Members and bearing the names:

"John Hills President
John Gallagher Secretary
For and on behalf of the Committee of Management
and elected Vigilance Officers W.Small and A.Curry".

(being the document more fully referred to in the particulars supplied in paragraph (4) (a) to the charge numbered 2 above) the said J. Hills, J. Gallagher, Warren Edward Small and Alan Richard Curry said so far as presently relevant:

"The levy will continue to be collected in compliance with the stop work meeting decision of the 18th February, 1981"; and

"We repeat: "The levy will continue".
(g) In the circumstances and context of the publication of the said document the said words meant and were understood by members of the Sydney Shipping Section as meaning that:

(i) members of the Sydney Shipping Section should disobey Rule 22 of the rules of the New South Wales Branch by not recognising the authority of Central Executive under that rule with regard to the employment and remuneration of paid servants of the Union, the organising of the Union and of Sections of the Union, the appointment and dispensing with the services of representatives of the Union;

(ii) members of the Sydney Shipping Section should disobey Rule 25 of the rules of the New South Wales Branch by not recognising the authority of the Secretary to keep accounts of all receipts and expenditure and of all moneys received on account of levies, to receive and bank all moneys collected by and on behalf of the Union and to personally or by deputy collect all Union dues, fines or levies from members or sections;

(iii) members of the Sydney Shipping Section should disobey Rule 34 of the rules of the New South Wales Branch by purporting to impose collect and apply a levy on members of the Sydney Shipping Section for purposes not authorised by Central Executive and in excess of the powers of the Sydney Shipping Section under the rules of the New South Wales Branch, Federated Clerks Union of Australia.

(iv) members of the Sydney Shipping Section should disobey Rule 11 of the rules of the New South Wales Branch by paying a purported levy other than to the office of the Union or to authorised representatives of the Union.

(v) members of the Sydney Shipping Section should disobey the lawful decisions of Central Executive, being the resolution of Central Executive referred to in the particulars supplied in paragraph (1) to the charge numbered 2 above;

(vi) the said J. Hills, J. Gallagher, Warren Edward Small and Alan Richard Curry supported disobedience by members of the Sydney Shipping Section to the said rules and to the said lawful decisions of the Central Executive.

4. PURSUANT to Rule 35(a)(1) of the New South Wales Branch, Federated Clerks Union of Australia I hereby charge each of the following members namely J. HILLS, J. GALLAGHER, WARREN EDWARD SMALL and ALAN RICHARD CURRY with violating Rule 11(c) of the rules of the New South Wales Branch between the 18th February 1981 and the 11th November, 1981 by paying the amount of a purported levy other than to the office of the Union and other than to authorised representatives of the Union, particulars of which violation are as follows:

(a) since 18th February 1981 the said J. Hills, J. Gallagher, Warren Edward Small and Alan Richard Curry have paid the amount of a purported levy imposed on members of the Sydney Shipping Section to the said Warren

Edward Small and the said Alan Richard Curry;

(b) the said Warren Edward Small and Alan Richard Curry are not employed at the office of the Union, are not authorised representatives of the Union and have been directed by resolution of Central Executive of the Union not to receive retain or deal with the amount of the said purported levy.

5. PURSUANT to Rule 35(a)(1) of the New South Wales Branch, Federated Clerks Union of Australia I hereby charge each of the following members namely WARREN EDWARD SMALL and ALAN RICHARD CURRY with violating Rule 11(c) of the rules of the New South Wales Branch in that between the 18th February 1981 and 11th November, 1981 they accepted monies paid as a levy by members of the Sydney Shipping Section and retained and applied such monies for their own purposes while not being authorised by the Secretary or Central Executive or Central Council so to do, particulars of which are the same particulars as supplied for charge numbered 4, herein.

6. PURSUANT to Rule 35(a)(1) of the New South Wales Branch, Federated Clerks Union of Australia I hereby charge each of the following members namely WARREN EDWARD SMALL and ALAN RICHARD CURRY with violating Rule 22(1) and (6) of the rules of the New South Wales Branch in that between the 18th February 1981 and 11th November, 1981 they, and each of them:

(a) acted as paid servants of the Union without having been engaged by

Central Executive as paid servants of the Union;

(b) acted as appointed representatives of the Union without having been appointed by Central Executive as appointed representatives of the Union:

particulars of which are as follows:

(i) between 18 February 1981 and 11th November, 1981 each of Warren Edward Small and Alan Richard Curry acted as the full-time salaried Vigilance Officer of the Sydney Shipping Section of the Union;

(ii) in that capacity the said Small and the said Curry were paid or paid themselves a salary and expenses from monies collected from members of the Sydney Shipping Section of the Union;

(iii) the Central Executive of the Union has not engaged the said Small or the said Curry as paid servants of the Union or appointed the said Small or the said Curry as appointed representatives of the Union;

(iv) the said Curry and the said Small have represented themselves without lawful authority to employers and to members as duly engaged servants or as duly appointed representatives of the Union;

(v) the misconduct of the said Curry and the said Small in so representing themselves has gravely prejudiced the interests of the Union in upholding the chief objects of the Conciliation and Arbitration Act, 1904 and the purpose of the registration of organisations under that Act has endangered hard won industrial gains and challenged the principle that the rules of the Union are to be performed or observed by all members until changed by the democratic process or order of the Court;

(vi) the said Curry and the said Small have wilfully persisted in their misconduct despite express directions of Central Executive and an application to the Supreme Court of NSW.

DATED this 11th day of November, 1981 -----(Sgd)----------- Secretary."

The hearings notified in the letters have not yet taken place. Initially, they were adjourned at the request of the applicants. Before the adjourned dates, the applicants obtained orders from Evatt J. which resulted in further postponement. One of the orders which his Honour made was the present Rule to Show Cause.

The orders sought by the applicants are numerous and were added to by me by an amendment at the hearing which was not opposed by Mr Meagher of Queens Counsel who, with Mr West, appeared for the respondents. Summarised, what are sought by the applicants are orders pursuant to s.140(5D) of the Act declaring parts of Rule 35 of the Rules of the New South Wales Branch of the Union to be in contravention of s.140(1), and orders pursuant to s.141(1G) directing the respondents, other than the Union, to perform and observe the rules of the Union by treating as null and void and of no legal effect the charges and the summonses and by refraining from proceeding to deal further with the charges. No attempt was made to impeach any part of any rule or by-law save Branch Rule 35 and the alleged invalidity was related solely to the statute. It was not, for example, submitted that the Branch Rules were in conflict with the Union Rules, nor was it suggested that the Union Rules are of any assistance in the interpretation of the Branch Rules.

Rule 35 of the Branch Rules is in the following terms:

"35. INFRINGEMENT OF RULES BY MEMBERS (a) The Central Executive shall have power under this rule to hear and determine charges made by a member against another member. It shall have power to impose a fine not exceeding

$20 and/or to suspend or expel any member of the Union who:-

(1) Violates any Branch or Section Rule.

(2) Refuses to obey any lawful resolution of the Central Executive or Central Council.

(3) Fails to attend a meeting of the Central Council or Central Executive when summoned.

(4) Owes six months' contributions or more, or levies and/or fines equal to or greater than six months' contributions.

(5) Knowingly gives misleading information relating to Union business or matters relating to any officer or employee of the Union.

(6) Unreasonably refuses to give information relating to Union business or matters to any officer or employee of the Union.

(7) Fails to pay any special or general levy or fine as and when directed.

(8) Advocates or supports disobedience by members to the rules or lawful decisions of the Central Executive or Central Council.

(9) Conducts himself so as to expose the Union to liability for any penalty under any law or award.

(10) Is abusive or is disorderly at any duly constituted meeting of the Union, or in the office of the Union, or towards any officer or employee of the Union when acting in the course of his duties.

(11) Has gained admission to membership as a result of any irregularity.

(b) A summons, specifying the charge, addressed by registered letter through the post office to the member's address as shown on the books of the Union seven days prior to the investigation shall be deemed sufficient notice of the charge.

(c) Should any member fail to attend as required by the summons, the Central Executive may proceed to hear and determine the matter in his absence. A member may tender written submissions in answer to the charge.

(d) Any member fined, suspended, or expelled may appeal as hereinafter provided.

(e) The Central Executive may reconsider any penalty imposed under this Rule and may vary the same.

(f) Notice of the penalty imposed shall be sent to the member concerned within seven days of the decision.

(g) Except in the case of a breach of sub-clause (a) (4) such fine shall not exceed the sum of $10 for any first offence.

(h) For the purpose of this Rule suspension shall mean suspension from the whole of the benefits of membership or from any part of such benefits, and in the case of an officer or member holding any office or position in the Union shall include suspension from such position or office and the emoluments and/or benefits thereof. Provided that suspension shall not mean suspension from any of the obligations of membership.

"Officer" is defined in Rule 5 of the Branch Rules to mean "a member of the

Central Executive"; it was not disputed that a member of the Central Executive of the New South Wales Branch is an "officer" as defined in s.4 of the Act.

Rule 5(b) of the Branch Rules provides:-

" 5. DEFINITIONS In these Rules, unless the context otherwise requires -

(a) . . .

(b) The singular number shall also include the plural number and the plural number the singular number."

1. Alleged conflict between Rule 35(a) and (h) and
Section 133(1) (f) (section 140(1) (a))

It was submitted that sub-Rules (a) and (h) of Branch Rule 35 ought be declared void, pursuant to s.140, as contrary to s.133(1) (f). That sub-section, so far as presently relevant, states that rules "shall not provide for the dismissal from office of a person elected to an office within the ... organisation unless he has been found guilty, in accordance with the Rules of the ... organisation, of misappropriation of the funds of the ... organisation, a substantial breach of the Rules of the ... organisation or gross misbehaviour or gross neglect of duty or has ceased, according to the Rules of the ... organisation, to be eligible to hold the office".

As the argument recognised, different considerations are applicable in respect of sub-Rule (h) from those in respect of sub-Rule (a), and I shall deal with them separately. However, the foundation of the argument in each case was the power of the Central Executive to suspend, and under Rule 35(a) to expel from membership. The exercise of the power in respect of a member elected to an office within the Union would, it was said, involve or result in his dismissal from office; and, of course, the grounds for the exercise of the power, which are set out in paragraphs (1) to (11) of Rule 35(a), are not limited to "misappropriation of the funds of the ... organisation, a substantial breach of the Rules of the ... organisation or gross misbehaviour or gross neglect of duty ...".
A. Rule 35(a)

Rule 35(a) plainly does not state that the Central Executive may, by way of penalty, dismiss from office any member elected to an office within the Union. It empowers only suspension or expulsion from membership. But according to the applicants it thereby provides for dismissal from office because membership is a prerequisite to the holding of office.

In substance, what was submitted for the applicants was that:

(i) there are other rules by virtue of which eligibility to hold office is dependent on membership. (It does not much matter for the moment whether such rules are Union Rules, Branch Rules, or Section By-laws, provided that the office concerned is an office within the meaning of s.133(1) (f),

i.e. presumably as defined in s.4 of the Act);

(ii) the effect of all or some of these other rules is that if membership is lost (e.g., by expulsion or by suspension for a period in excess of the residue of the term of office) eligibility for office is lost; and

(iii) loss of eligibility for office, i.e. of membership, involves or results in dismissal from office.

There are a number of points at which the applicants' thesis would require

close scrutiny were it not, as I think, flawed in the conclusion which it seeks to draw. In the result, I have found it unnecessary to decide many points which were argued and I have merely assumed in the applicants' favour the existence of other rules having the effect for which they contend.

The immediate subject of each of ss. 133 and 140 is an organisation's rules; what may be avoided is a rule or a part of a rule. Neither section is concerned with directly vitiating a step under a rule, e.g. a dismissal from office. What must be searched for, where s.133(1) (f) is concerned, is a rule which provides for dismissal from office.

In the argument presented for the applicants, dismissal from office is the product of the operation of a combination of separate and independent rules, of which Rule 35(a) is one. It is my opinion that, at least in such circumstances, if any rule may be said to provide for dismissal from office within the meaning of s.133(1) (f), it is whichever of the rules directly deals with loss of office.

In the present case, if there is in respect of any office within Union, Branch or Section, any rule which operates to deprive of office any office holder who is expelled or suspended from membership, it is that rule, not Rule 35(a), which provides for dismissal from office within the meaning of s.133(1) (f).

It should be added that this conclusion is not dependent upon a view that, as a matter of construction of rules now arising for consideration, any loss of office is not effected by, but is only derivative from, the penalty of expulsion or suspension: cf. Maloney v. N.S.W. Coursing Association Ltd (No. 2) (1978) 3 A.C.L.R. 404; affd (1978) 1 N.S.W.L.R.161. I consider the conclusion equally valid if, by virtue of other rules, dismissal from office is not only the automatic consequence of loss of membership under Rule 35(a) but occurs eo instanti.

The significant feature, as it seems to me, is that, assuming all else in the applicants' favour including that suspension or expulsion from membership under Rule 35(a) involves or results in dismissal from office, such consequence is the product of some other rule or rules not Rule 35(a); and accordingly, it is not Rule 35(a) which provides for the dismissal from office.

Further, rules having the operation contended for by the applicants may be protected by the second part of s.133(1) (f).

The general effect of that sub-section is to impose a prohibition upon rules providing for the dismissal from office of a person elected to an office within a Union, subject to alternative and quite different bases of exemption from that prohibition. It is plainly sufficient for rules to attract the protection of either limb of exclusion.

Under the first part of the sub-section, rules may provide for the dismissal from office of an office holder if he has been found guilty, in accordance with the rules, of specified misconduct.

The second part of the sub-section seems much wider. There is no requirement of misconduct, or of a determination of guilt. Under the second part of the sub-section, rules, which may be self executing, may provide for the dismissal from office of an office holder who has ceased, according to the rules, to be eligible to hold the office. No restriction is expressed as to what rules may provide with respect to conditions of eligibility for office, or with respect to the grounds on which, or the circumstances in which, an office holder shall cease to be eligible to hold office.

Some limitation may be implicit. For example, rules which respectively provide for dismissal from office of an office holder upon his ceasing to be eligible to hold office, and prescribe misconduct, different from that specified in the first part of the sub-section, as a ground upon which an office holder ceases to be eligible to hold office, might be said to be directly contrary to the intention of the first part of the sub-section.

However, as at present advised, I cannot see any justification for using the first part of the sub-section as a basis to exclude membership as a possible condition of eligibility for office, or, where eligibility for office is dependent on membership, for restricting the grounds upon which membership may be lost to the misconduct specified in the first part of the sub-section.

I am less than wholly persuaded by the reasons put forward as to why the statute treats dismissal from office as more serious than deprivation of membership and prohibits, in general, dismissal from office but make no express provision as to expulsion or suspension from membership. But that is what it does.

It does not necessarily follow that there are no restrictions on the legitimate bases of expulsion or suspension from membership which may be adopted, but on the other hand, I do not think that it can be said that the permissible grounds for deprivation of membership are restricted to the misconduct specified in the first part of s.133(1)(f).

Unless the latter part of the sub-section can be read down in that way, it seems to me to stand in the way of the applicants' success on the present question.
B. Sub-Rule 35(h)

Sub-Rule (h) of Branch Rule 35 raises different problems. It expressly expands the power of suspension beyond suspension from membership; the relevant part of the sub-Rule provides that suspension "in the case of an officer or member holding any office or position in the Union shall include suspension from such position or office and the emoluments and/or benefits thereof". Having regard to the definition of "officer" in Branch Rule 4, it was not disputed that the operation of the words in question extended to persons elected to an office within the meaning of s.133(1)(f) of the Act.

For the applicants, reliance was placed upon the judgment of J.B. Sweeney J. in O'Donoghue v. Amalgamated Society of Carpenters and Joiners of Australia (1979) Industrial Arbitration Service Current Review 683. Unfortunately, the rule there in question is not set out in the report but it seems that it provided both that a member elected to office might be suspended from office for a "specified or unspecified period", and also that "during a period of suspension from office the suspended person shall not occupy his office". The Union not only conceded but itself asserted that the period of suspension might be for the balance of a term of office. The learned judge held that, on the true interpretation of the rule, it offended s.133(1)(f).

The reasoning in respect of the point in question in O'Donoghue's case is somewhat brief but it does seem that emphasis was given to the provision in the rule that the period of suspension might be "specified or unspecified". The respondents contended before me that it was by reasons of these words that the ordinary connotation of suspension as temporary only was missing, and that that afforded the explanation of why, in O'Donoghue, it was held that the power of suspension was equivalent to a power of dismissal. Without such words, it was submitted for the respondents, a power of suspension from office must be read as permitting only a limited period of suspension, less than the term of office.

I am not convinced that this explanation is plausible. If what the respondents contend for is the correct view of a power of suspension, and if a similar limitation could not have been imported into the rule in O'Donoghue's case insofar as the rule referred to an "unspecified period" of suspension, it ought have been necessary to do no more there than strike out the reference to an unspecified period; the effect of this would have been to leave an express requirement that the period of suspension be specified. Presumably that is how the respondents would have the power of suspension in Branch Rule 35 read in this matter. Further, to say that a period of suspension must be both temporary and specified does not seem wholly to meet the applicants' objection since it leaves open the opportunity to bring about the same practical effect as a suspension for the balance of a term of office by the imposition of a period of suspension which expires shortly prior to the end of the term of office.

Nonetheless, I do not think that O'Donoghue's case provides a solution in this matter. It is clearly distinguishable. The rule there was significantly different both in what it said as to the permissible period of suspension and in the words spelling out the effect of suspension, i.e. that the person suspended should not during suspension occupy office. In respect of the lastmentioned matter, the respondents have submitted that the ordinary meaning of suspension is that a person suspended continues to occupy office but is unable to exercise the powers attendant thereon.

Ultimately I have concluded that the applicants' submission fails.

The distinction between dismissal and suspension is well established. I see no reason to doubt its applicability to a relationship entered into for a fixed term, such as an office held for 3 years, any more than to those of indefinite duration. Further, I must proceed on the footing that the draftsman of s.133(1)(f) was alert to the difference.

The question for determination now is whether the power of suspension spelt out in Branch Rule 35(h) is a power of dismissal from office within the meaning of s.133(1)(f). In my opinion, it could only be so if the rules, including sub-Rule (h), required that that sub-Rule be read as enabling an office holder to be wholly deprived of office. I can find nothing to support this view.

It is not practical, and probably not possible, to attempt to define the boundaries of the power of suspension in Branch Rule 35(h); if it is exceeded, it will no doubt be open to a member aggrieved to approach the Court under s.141. Suffice it for present purposes to say that the sub-Rule does not, in my opinion, permit the Central Executive to bring about a situation in which an office or position is vacant and available for filling, whether by appointment or election. I do not think that there is a dismissal from office within s.133(1)(f) unless a person elected to the office is totally, permanently, and irreversibly deprived of that office. I can find nothing in Branch Rule 35(h), alone or in conjunction with other rules, which permits such a deprivation of office by way of suspension.

There is a passage dealing with the power of suspension in Branch Rule 35 in Holmes v. Federated Clerks Union of Australia (1956) 1 F.L.R. 1. The Court there said at p.3:

". . . It was submitted that as the power to suspend has no limit of time attached to its exercise the rule was objectionable and this argument appears to amount to an attack, not only on par. (2), but on the whole of rule 35(a). However, because of the progressive nature of the penalties available it must be obvious that the infliction of an order of suspension must lie between the limits of a fine and an expulsion. A sentence of expulsion for a fixed term or unless and until obedience to a lawful resolution were achieved would be valid. . . . "

Unfortunately, there seems to be an error substituting "expulsion" for "suspension" in the last sentence which is, in any event, obiter. If anything, the passage, expecially the second sentence, may support my view, but I consider it probably safer to place no reliance on it.

2. Alleged conflict between Branch Rule 35(a)(1), (2) and (8) and Section 140(1)(c).

The applicants' final assault on Branch Ruoe 35 was more limited; aspects of the rule were said to be oppressive, unreasonable or unjust within the meaning of s.130(1)(c). Four submissions were made, which may be summarised as follows:

A. Branch Rule 35(a)(1) permits the imposition of penalties, including suspension or expulsion, for what may be no more than a trivial or inadvertent breach of a rule, and even though the rule breached may not be mandatory or may be disputed or invalid; the rule need not even be a Branch Rule, but may only be a Section By-law and thus not required to be

certified by the Industrial Registrar under s.139 of the Act.

B. Branch Rule 35(a)(2) permits the imposition of such penalties for disobedience of a resolution of the Branch Central Executive or Central Council although the member be unaware of the resolution and the breach be trivial; the rules provide no machinery for ensuring that resolutions are brought to members' attention.

C. Rule 35(a)(8) permits the imposition of such penalties for merely supporting disobedience by others to rules or to Central Executive or Central Council decisions, although that support be passive, covert, unexpressed, or expressed only to non-members of the Union, and regardless of whether the member charged was aware of the decision, and of whether the breach was wilful.

D. Further, sub-Rule 35(a)(8) is too vague.

Senior counsel for the respondents strenuously disputed that the impugned

sub-rules could be read as contended for by the applicants and drew attention to such words and phrases as "Violates" and "Refuses to obey". He urged a practical approach to the task of construction, whilst for the applicants it was said that the critical factor is the protection of the member, and in effect that I should not be deterred from striking down a rule, however technical the objection or extreme or improbable the example postulated as a possible object of the rule's operation.

In my opinion, the applicants fail. I do not agree with the meaning sought to be attributed to the provisions in question by the applicants. Both in this part of the case and in the part which I will next turn to after brief reference to the four points now raised by the applicants, the artificial constructions for which they contend seem to me to ignore the subject matter and the context, and to disregard the implicit limitations imported by the rules of natural justice (Gordon v. Carroll (1977) 27 F.L.R. 129, 167-168) and by the need for powers to be exercised bona fide for the purpose given: Allan v. Townsend [1977] FCA 10; (1978) 16 A.L.R. 301, 348.

A. I propose to say no more as to Branch Rule 35(a)(1) than that the applicants referred to O'Neill v. Printing Industry Employees of Australia (1965) 6 F.L.R. 488 and Cassidy v. Amalgamated Postal Workers' Union of Australia (1967) 11 F.L.R. 124 and conceded that they tended against the proposition now put forward.

B. In my opinion the requirement that the member charged has refused to obey a resolution distinguishes Rule 35(a)(2) from the rules in Thornton v. Mackay (1945) 56 C.A.R. 561 and Cassidy's Case, supra. Plain support for my own views as to this is to be found in Holmes v. Federated Clerks Union of Australia (1956) 1 F.L.R. 1, where the precise point was rejected in respect of this very sub-Rule.

C. I see no justiciation whatever for reading the word "supports" in the sub-Rule in a way which would give it an operation capable of being described as "oppressive unreasonable or unjust": cf the approach of the Court to the word "calculated" in Wishart v. Australian Builders Labourers' Federation (1960) 2 F.L.R. 298.

D. I can find nothing objectionable in the language of sub-Rule 35(a)(8) if, as I have held, the applicants' previous submission, based on the word "supports", fails.

3. Alleged deficiency in the rules in respect of the subject matter of charges

The applicants submitted that by reason of a deficiency in the Branch Rules, the charges against them, and therefore the summonses, were unauthorised.

It was not disputed on either side that, for the purposes of this part of the argument, there is no relevant rule except Rule 35, which seems to be an elaboration of Rule 22(a)(4). However, according to the applicants, Rule 35 assumes the existence of another rule.

The applicants did not deny that Rule 35 provides that one member may charge another or that the Central Executive may hear and determine such charges. Nor did they dispute that Rule 35 empowers the Central Executive to impose the penalties specified in sub-Rule (a) in respect of the matters set out in sub-paragraphs (1) to (11) of that sub-Rule, and it was not submitted that such conduct was not thereby proscribed by implication.

But, it was said that Rule 35 does not provide that the matters set out in paragraphs (1) to (11) of sub-Rule (a) are the matters in respect of which charges may be made by one member against another, and that it does not contain any definition at all of what charges may be made. Because the rule is concerned with the punishment of members, it was submitted that clear words are essential, and attention was drawn to the recent decision of the Full Federal Court in Hawkins v. Willis, as yet unreported.

Rule 35 does not contain any specific reference to the matters pointed to by the applicants, and there is no express connection between the first and second sentences of sub-Rule (a), which deal respectively with the determination of charges and the imposition of penalties. Nonetheless, in my opinion, the applicants' point fails.

The applicants' submissions seem to me to seek to focus attention on separate parts of Rule 35(a), and to overlook the connection between the various parts and the operation of the Rule as a whole. More particularly, I consider that insight into sub-Rule (a) is provided by sub-Rules (b), (c) and (d) which deal with the various elements of (a), i.e. charge, hearing, and penalty, in a way which satisfies me that all are inter-related.

In my opinion, Rule 35(a), when taken in context and read as a whole, does sufficiently indicate that the charges which one member may make against another are those which are set out in sub-paragraphs (1) to (11).

A subsidiary aspect of this submission was that there is no procedure specified for the making of charges.

In the absence of any suggestion of possible departures from the principles of natural justice, the absence of a defined procedure for the making of a charge seems to me wholly irrelevant, and no authority to the contrary was produced.
4. Alleged defects in the charges

The applicants attacked the contents of the charges on a number of bases.

A. Charges against more than one member

The first complaint was that the individual charges were laid against more than one of the applicants whereas, it was said, Rule 35(a) speaks only of charges against "another member" and Rule 5(b), which was itself criticised, did not apply so as to permit a single charge against two or more members. It was not suggested that there was any objection in principle to the joinder of persons charged, and the point was advanced as dependent solely on the interpretation of the rule.

It may well be that the subject matter of some of paragraphs (1) to (11) of sub-Rule (s), e.g. paragraph (4), would render a charge against more than one member inappropriate. But, no such consideration exists in respect of other paragraphs of the sub-rule, including paragraphs (1), (2) and (8) which were the foundation of the present charges.

In my opinion, the first sentence of sub-rule (a) permits a single charge equally with a number of charges, the making of a charge by more than one member, and the making of a charge against more than one member, where appropriate.
B. Alleged uncertainty and duplicity in the charges.

Secondly, individual charges were stigmatized as uncertain and as involving duplicity. It was asserted that there was doubt as to whether the applicants charged were charged jointly and/or severally; and further that there was doubt as to the matter charged in that it was not clear whether what was alleged was individual or collective action.

Objection was made to the inclusion of the various charges, against different groups of applicants, in a single document, particularly having regard to the intention to deal with each applicant separately at a different hearing at a different time. However, as best as I understood this part of the complaint, it was not put forward as a separate ground of invalidity but rather as emphatic of the uncertainty said to arise from the charges as formulated.

The submission, briefly summarised, was that such charges are outside Rule 35 on its proper construction; or, alternatively, that such charges are bad conformably with the principles applicable to charges of offences against the law.

Reference to the individual charges is unavoidable. I consider it appropriate to keep in mind that the rules provide for charges by laymen against laymen for determination by laymen. In proceedings such as these the Court should not permit an illusion of uncertainty to be created by the ingenuity of counsel.

I am unable to read either charge 1 or charge 2 as other than a separate charge against each of the three applicants named, charging him with his own separate misconduct. No submission made to me, and certainly no authority cited, has revealed to me any basis for impeaching the validity of each of these charges as a separate charge against each named applicant, compendiously expressed and contained in a document also containing other charges against those applicants and others.

Subject to one qualification, 3 seems equally straightforward, although in this charge each of the named applicants is respectively charged with involvement in the conduct particularised in paragraph (f).

The only additional factor is that the charge is framed in the alternative, i.e. "advocating or supporting disobedience". In my opinion, these are separate breaches under Rule 35(a)(8). However, the particulars given, whilst establishing a basis for the allegation of "advocating" limit the charge to "supporting": see paragraph (g)(vi). In the circumstances, the objection to the charge is not made out.

Charges 4 and 5 are complementing and, insofar as there is a difficulty, they share it. The charges against the named applicants are separate, and it is alleged that they paid the levy to the applicants Small and Curry together. But there does seem to me to be room for argument as to whether it is alleged that each is charged with having made a separate payment or payments, or with having done so in conjunction with the others. In my opinion, these charges are in this respect uncertain. But, the uncertainty could be readily cured by a simple amendment, or by particulars.

Charge 6 is susceptible of greater criticism. Each applicant is separately charged, but seemingly not only with his own separate conduct but also with their collective conduct and arguably with the conduct of the other named applicant - "in that . . . they and each of them . . . ".

These difficulties are compounded by other factors. Two different breaches are alleged apparently conjunctively against each of the named applicants in the single charge. Six particulars are given without any breakdown of them to the respective applicants or the respective charges. There is a lack of precision in the language used, and a carelessness in the use of the singular and plural in critical respects.

Charge 6 involves both uncertainty and duplicity in the sense the word is used in penal proceedings. The objections to it are such that it could not be said that the applicants charged might not be prejudiced and it would not be in accordance with the rules for hearings to proceed on it in its present form. It does not follow that it is void.

I have earlier expressed the opinion that the charges which Rule 35(a) provide may be made against a member are those set out in paragraphs (1) to (11). The applicants accept that the breaches charged fall within those paragraphs.

Of course, the rules do not expressly state that a charge in respect of an alleged breach or breaches may be expressed uncertainly, or that in a single charge separate breaches may be alleged alternatively or conjointly. But it does not follow that it can be said that charges so formulated are outside the rule in the sense of not founded upon it. Equally, it might be said that the rules do not expressly deny that charges in respect of the breaches which it specifies may be so formulated. Further, it does seem appropriate to bear in mind that, under the rules, a charge is to be made by a member, most of whom may be expected to be without skill as a draftsman or knowledge of the finer points of the law.

As to the other asserted basis of invalidity, decisions in relation to duplex or uncertain charges alleging offences have for a considerable period been concerned largely if not solely with statutory provisions dealing with the topic, although there is a discussion of the position at common law in the judgment of Bray C.J. in Romayko v. Samuels (1971) 19 F.L.R. 322, 347-348 In my opinion, the present problem is of a different character.

It is necessary to go back to the rules. To my mind the answer lies simply in a recognition that principles of natural justice are implicit in the rules which make no attempt to exclude them. Reference has been made above to Gordon, which is but one of many decisions supporting this view.

The applicants acknowledged that they could point to no prior decision which directly supported their submission that the charges were void. In my opinion, it would be wholly contrary to the tenor of authority with respect to the application of the rules of natural justice to the proceedings of domestic tribunals to declare void in circumstances such as the present charges to which objection may be taken because of deficiencies in their expression and formulation, whether such defects be properly characterised as matters of form or of substance.

However, natural justice does require that, an adequate interval prior to the hearings of the relevant charges, those charged have fairly indicated to them the matters alleged against them. Elements of confusion or uncertainty must be removed from the charges, along with any other aspect which may impede the preparation of a defence or prejudice a fair hearing.

Whilst the hearing of the charges ought not be stopped on the footing that the charges are void, I have decided that an order ought be made having the effect of preventing the determination of charges 3,4,5 and 6 in their present form.

The letters of 19 November 1981 recognised that the applicants might wish to seek further particulars but the applicants did not avail themselves of the opportunity. Further, the dispute which has given rise to these proceedings is not fresh, and there seems little doubt that the applicants have for some time been represented by able lawyers. There have been previous proceedings: see Federated Clerks Union of Australia v. Hills (1981) 35 A.L.R. 615. It is just possible that the applicants have preferred to have the charges left in their original state and not clarified.

Whether or not that inference is open, I do not think that it can be held that the charges would not have been proceeded with in their present form but for these proceedings. The respondents' submissions to me sought to justify the charges. In the circumstances, I propose to direct the respondents other than the Union not to proceed with charges 3,4,5 and 6 as they are. No doubt, the difference in the role of the respondent Higgins, as the member laying the charges, will be observed and care will be taken to ensure that no breach of natural justice is thereby caused.

I order that the respondents and each of them (other than the Federated Clerks Union of Australia) perform and observe the rules of the New South Wales Branch of the Federated Clerks Union of Australia by refraining from proceeding further to deal with each of the charges numbered 3,4,5 and 6 set out in the enclosure to the letters to the applicants dated 19 November 1981 signed by the respondent Higgins, copies of which are annexed to the affidavits of the applicants herein, unless such charges are first amended or better particularised to indicate fully and fairly to each applicant charged what is alleged against him.

I further order that save as aforesaid the interlocutory orders pronounced herein by Evatt J. be terminated and the Rule to Show Cause be discharged.