Re Judith Adella Cooney v Jennifer Louise Gibbs; Jeanette Budak; Robyn Mcadam; Kathleen Matt=Ews; Kathleen Gilbert; Kaye Challinger; Rosemary Bryant; Marea Vidovich; Annette Gallagher; Therese Jenkins; Jill Kennedy; Judy Giarola; Ann Arthur; Pamela Wri [1987] FCA 89 (19 March 1987)

FEDERAL COURT OF AUSTRALIA

Re: JUDITH ADELLA COONEY
And: JENNIFER LOUISE GIBBS; JEANETTE BUDAK; ROBYN McADAM; KATHLEEN MATT=EWS;
KATHLEEN GILBERT; KAYE CHALLINGER; ROSEMARY BRYANT; MAREA VIDOVICH; ANNETTE
GALLAGHER; THERESE JENKINS; JILL KENNEDY; JUDY GIAROLA; ANN ARTHUR; PAMELA
WRIGHT; SANDRA YORSTON; MARGARET GAGEN; ROSLYN McCOY; JOHN BROWN and ENID
JENKINS
No. V1 of 1987
Industrial Law
18 IR 60

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - performance and observance of rules - whether member upon resignation as Branch President ceased to be member of Federal Council - whether member upon ceasing to be a member of Federal Council ceased to be eligible to hold office as Federal President - whether automatic loss of office as Federal President - discretion to refuse to make orders.

Conciliation and Arbitration Act 1904 s. 141

Allshorn v. Stapleton (1984) 4 FCR 236

HEARING

MELBOURNE
19:3:1987

Counsel for the Applicant: Mr. M. Moore Mr. B. Mueller

Solicitors for the Applicant: Cedric Ralph, Peirce & Dawson

Counsel for the Respondent: Dr. P. Buchanan Q.C. Mr. W.B. Strugnell

Solicitors for the 4th and 5th Respondents: John & Green

Solicitors for the 10th and 11th Respondents: Slater & Gordon

Solicitors for all Respondents other than 4th, 5th, 10th and 11th: Ryan Carlisle Needham & Thomas

ORDER

The first respondent perform and observe the rules of the Royal Australian Nursing Federation by ceasing and refraining from holding herself out as a member of the Federal Council of the Federation.

Each of the second to seventeenth respondents perform and observe the rules of the Royal Australian Nursing Federation by ceasing and refraining from treating or recognising the first respondent as a member of the Federal Council of the Federation.

Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

DECISION

On 21 January 1987 an order was made under s. 141 of the Conciliation and Arbitration Act 1904, (the Act) calling upon the respondents to show cause why certain orders should not be made, including the following:-

"(c) An Order directing that the first
Respondent perform and observe the
Rules of the (Royal Australian
Nursing) Federation by ceasing and
refraining from holding herself out
as:

(i) A member of the Federal Council.

(ii) Federal President of the
Federation.

(d) An Order directing that each of the
second to seventeenth Respondents
perform and observe the Rules of the
Federation by ceasing and refraining
from treating or recognising the first
Respondent as:

(i) A member of the Federal Council;

(ii) Federal President of the
Federation."

2. The matters dealt with in these reasons for judgment are those raised by paragraphs (c) and (d) of the rule to show cause, as to which the court had ordered that the questions raised by them be heard and determined separately from the questions raised by paragraphs (a) and (b).

3. Mr. M. Moore and Mr. B. Mueller, both of counsel, appeared for the applicant. The fourth, fifth, tenth and eleventh respondents took no active part in the hearing although they had each entered an appearance and were informed of the date of the hearing. Dr. Buchanan, Q.C. and Mr. Strugnell, of counsel, appeared for all of the other respondents (the fifteen respondents) to oppose the making of the orders.

4. The fifteen respondents accepted a statement of "agreed facts" as follows:

"1. The Royal Australian Nursing Federation
("the Federation") is an organization
of employees registered under the
Conciliation and Arbitration Act 1904.

2. The applicant is a member of the
Federation.

3. The 1st to 17th respondents are members
of the Federation and under an
obligation to perform and observe the
rules of the Federation.

4. The 2nd to 17th Respondents are members
of the Federal Council of the
Federation.

5. At all material times before 9th
September 1986, the 1st respondent was
President of the Victorian Branch of
the Federation, a member of the Federal
Council and Federal President of the
Federation.

6. The 1st respondent has at all material
times since 9th September 1986
continued to hold herself out as:-

(a) a member of the Federal Council;

(b) President of the Federation."

5. In addition, they had admitted in their "contentions of fact" that:-

"(a) the eighteenth and nineteenth respondents are members
of the Federation; and

(b) on 9 September 1986 the first respondent resigned from
the position of Branch President of the Victorian
Branch of the Federation."

Further, the applicant deposed "that the tenth respondent Therese Jenkins has accepted the appointment as President of the Victorian Branch of the Federation". That statement was not contradicted by other evidence and the applicant was not cross-examined. The first respondent, Miss Gibbs, deposed in an affidavit that she had resigned her "position as President of the Victorian Branch of the Federation and (has) since that date held no office in the Federation save for that of Federal President. No successor to that office has been elected since the 10th day of September 1986."

6. The rules of the Federation were put in evidence and it is convenient to set out at this point the following provisions in the Federal Rules:-

"14 - Voting at Federal Council

(a) The Federal Council shall consist of
the Branch President and one
Councillor from each Branch of the
Association who shall be elected by
secret ballot as provided by these
rules.

. . . .
(c) Each member of the Council shall be
entitled to vote in deliberations of
the Federal Council.

(d) In the event of any member of the
Council being unable to attend a
Federal Council meeting . . . the Branch
Council of such Branch (the Branch she
represents on the Federal Council) may
appoint a proxy . . .

. . . .

(f) (i) For the purposes of voting each
Branch shall be entitled to a
minimum of two (2) votes.

. . . .
20 - Removal from office of Federal
councillors and officers

(a) The Federal Council may remove from
office any officer or member of the
Federal Council at a meeting of the
Federal Council to which the person
concerned has been summoned in writing
signed by the Federal Secretary or
Federal President to show cause why he
or she should not be so removed.
Provided that no such person shall be
removed from office unless he or she
has been found guilty of
misappropriation of the funds of the
Association, a substantial breach of
the rules of the Association, or gross
misbehaviour or gross neglect of duty,
or has ceased, according to these
rules, to be eligible to hold the
office.

. . . .
22 - Executive Committee

(a) There shall be an Executive Committee
comprising:-

(i) the Federal President, two
Vice-Presidents and Treasurer;

(ii) the Federal Secretary; and

(iii) the Branch President of each
Branch which is not already
represented on the Executive
Committee pursuant to (i)
hereof by virtue of a member of
that Branch being Federal
President, Vice-President or
Treasurer; . . .

(aa) If any member of the Executive
Committee is unable to attend a
meeting or a part of a meeting of the
Executive Committee the other member
of Federal Council from the Branch she
represents may attend such meeting or
part of such meeting as proxy for her
and vote on her behalf. This sub-rule
has effect notwithstanding any other
provision in the Rules.

. . . .
(d) A quorum for a meeting of the Federal
Executive shall be a simple majority
of members or proxies attending
pursuant to sub-rule (aa) of this Rule
provided that those persons, other
than the Federal Secretary and
Assistant Federal Secretary (if any)
represent not less than fifty percent
of the total membership of the
Association.

. . . .
23 - Officers of the Association

The Federal Officers of the Association
shall be the President, two Vice-Presidents,
the Secretary and the Treasurer.

24 - Duties of the President

The President shall, in addition to other
duties of the office defined elsewhere in
the Rules -

(a) preside at all Meetings of the Council
and preserve order.

(b) upon confirmation of the Minutes, sign
the Minute Book in the presence of the
Meeting.

(c) represent the Association as its
principal officer when required to do
so by the Federal Council or Executive
Committee.

. . . .
39 - Officers to be elected

(a) The Officers (sic) of President, two
Vice Presidents and Treasurer shall be
elected by secret postal ballot of
duly elected members of the Federal
Council in accordance with these
Rules; the Offices of Federal
Secretary and Assistant Federal
Secretary (if any) shall be elected by
secret postal ballot of the members of
the Association in accordance with
these Rules.

. . . .
40 - Qualifications for office and
nomination

(a) A candidate for the position of
President, Vice-President or Treasurer
shall have been a member of the
Association for a period of one year
immediately preceding the date of
nomination for office provided that
only persons who are elected members
of the Federal Council in accordance
with Schedule A of these Rules shall
be eligible to nominate for such
positions. . . .

(b) No person who holds office or any paid
position in any other Association,
Organisation or Union with industrial
objects shall be eligible to nominate
for or hold office in the Royal
Australian Nursing Federation other
than . . . .

(d) A person elected as Federal Secretary
or Assistant Federal Secretary shall
not be eligible to hold or continue to
hold any other elected office in the
Association to continue as a member of
any Branch Council or to be employed
or continue to be employed in any
capacity by any Branch of the
Association. . . . .

42 - Term of office

(a) The President shall hold office for a
term of two years, and shall then be
eligible for re-election for a further
term of two years. A person shall not
be eligible for election as President
for more than two successive terms.

. . . .
(d) Notwithstanding the provisions of
Sub-Rules (a), (b) and (c) hereof, the
President, Vice Presidents and
Treasurer shall assume office on the
1st April in the year of their
biennial election . . . .

46 - Extraordinary vacancies

(a) If for any reason the position of any
of the offices of the Association
becomes vacant between the normal
elections referred to in the foregoing
provisions of these rules such vacancy
shall be filled in the following
manner:

(i) If the vacancy occurs within six
calendar months of the first day
of February of the year in which
an election for such office would
be held in accordance with these
rules the Federal Council may
appoint one of its members to
fill such a vacancy in the office
of President, Vice President or
Treasurer . . ."

7. It may be said immediately that the rules of the Federation are not easy to construe; during the examination of the rules in the hearing, various possible difficulties in the application of the rules were the subject of submissions and there was some shifting of ground by counsel.

8. The applicant contended that, upon her resignation from the position of President of the Victorian Branch, Miss Gibbs "thereupon ceased to be a member of the Federal Council and ceased to be eligible to be Federal President of the Federation".

9. Dr. Buchanan did not submit that Miss Gibbs, who was no longer a branch president and was not a councillor from a branch, validly remained as a member of Federal Council. In my opinion she is not a member of the Federal Council and, as it is members of that Council who "shall be entitled to vote in deliberations of the Federal Council" (sub-rule 14(c)), she is not entitled to vote in Federal Council. It follows that orders should be made in the terms of paragraphs (c) (i) and (d) (i) of the rule to show cause.

10. It is clear that the Federal President must be a member of the Federal Council in order to be a candidate for election as Federal President (sub-rule 40(a)). The applicant has submitted that the scheme of the rules is that a person elected as the Federal President must continue to be a member of Federal Council in order to continue to hold the office of Federal President. Accordingly, Miss Gibbs, on ceasing to be a member of the Council, ceased to be eligible to hold the office of Federal President. In this connexion it was submitted that sub-rule 40(a) should not be read in a literal and narrow way and reliance was placed upon a number of rules relating to the office of Federal President and her role in the affairs of the Federation.

11. I am not prepared to uphold the applicant's submission. In my opinion sub-rule 40(a) can not fairly be construed as requiring a person, who was validly elected as Federal President, to remain a member of the Federal Council in order to continue to hold the office of Federal President. Sub-rule 40(a) deals only with "a candidate" for certain offices; it specifies certain requirements before persons become "eligible to nominate for such positions". It says nothing expressly on the subject of whether a person must remain a member of the Federal Council in order to "continue to hold . . . office"; nor can such a requirement, in my opinion, be fairly said to be implied in the sub-rule.

12. Rule 40 is headed "Qualifications for office and nomination". The terms of sub-rule 40(a) contrast sharply with those of sub-rule 40(d). The latter sub-rule expressly provides that a person elected "as Federal Secretary . . . shall not be eligible to hold or continue to hold any other elected office . . ." (see also the express use, in sub-rule 40(b), of the words "to nominate for or hold office in . . ."). The insertion of those express words in sub-rules 40(b) and (d) runs counter to the submission by the applicant that an implication should be read into sub-rule 40(a).

13. The applicant's counsel submitted that, if the fifteen respondents were correct in their contention that the rules did not require that the Federal President continue to be a member of the Federal Council, then the rules become unworkable. Reference was made to various rules e.g. sub-rule 14(c) and 14(f)(iv) - as to voting in Federal Council; rule 19 - as to a quorum; rule 48C - as to the conduct of meetings; and sub-rule 22(aa) - as to proxy voting on the Executive Committee, of which the Federal President is a member. It may be noted in passing that the "Executive Committee" is elsewhere in the rules (e.g. sub-rule 22(d) and rule 26A) referred to as the "Federal Executive", but it was accepted by the parties that those expressions refer to the one committee, notwithstanding the use of different names.

14. I accept Dr. Buchanan's submission that the rules are not unworkable; also his submission that those difficulties which exist are not such as to lead the court to hold that there is an implication - either in sub-rule 40(a) or in the rules generally - that a person must remain a member of Federal Council in order to continue to hold the office of Federal President.

15. The Act does not require the Federation to have rules which would lead to the removal from office - either automatically or otherwise - of a Federal President who, having been elected to that office as a person eligible because she was a Branch President, later resigned that office. There may be good reasons for the view that the rules should provide for the Federal President to lose office in those circumstances. On the other hand, there may be good reasons for permitting a person who was validly elected as Federal President to continue to hold that office for a relatively short period after resigning her office as Branch President. The considerations which support each of the two opposing views are matters which can be investigated and taken into account by the Federation's rule making body if it wishes to consider amending the rules as to that subject matter. The court's function is to express an opinion as to the meaning of the rules in their present form.

16. It will be clear from what has been said earlier, in comparing the terms of the provisions in sub-rules 40(a) and 40(d) respectively, that in my opinion sub-rule 40(a) does not have the meaning for which the applicant contends. Both the heading to rule 40, and the content of that rule as a whole, show that it is a provision which deals specifically not only with "qualifications for nomination" (as is done in sub-rules 40(a) and (c)) but also with "qualifications for office" (as is done in sub-rules 40(b) and (d)). Without assuming that the person drafting rule 40 had all the qualifications and experience of a parliamentary counsel, the terms of the sub-rules make it clear that the draftsman plainly had in mind the distinction between, on the one hand, qualifications for nomination as a candidate (see sub-rule 40(a)), and, on the other, qualifications to "hold office" (sub-rule 40(b)) or "to hold or continue to hold . . . office" (sub-rule 40(d)).

17. Accordingly, although the proper construction of the rules of the Federation is a matter of considerable difficulty, I have reached the conclusion that the rules do not manifest an intention that the Federal President shall only be entitled to continue to hold that office whilst she remains an "elected member of the Federal Council" (sub-rule 40(a)). That opinion is based upon the construction of that sub-rule, read in the light of both its immediate context and the context of the rules as a whole, including those rules cited by the applicant as tending to support her contention as to the meaning of the rules.

18. In reaching that conclusion I have accepted Dr. Buchanan's submission that sub-rule 40(a), in providing that "only persons who are elected members of the Federal Council . . . shall be eligible to nominate for such positions", means that the candidate must be eligible to nominate not only on the date when the nomination is lodged with the Returning Officer but, as he expressed it, "right up to the point when the election is held". It follows that, dealing with the hypothetical case raised by Mr. Moore during his submissions, a member who was "eligible to nominate" at the date of lodging her nomination, but who resigned as Branch President immediately after so doing (i.e. before the election), would not be "eligible to nominate" for election to the position of Federal President. Applying that construction of the rules to the facts of this case, Miss Gibbs did not cease "according to these rules, to be eligible to hold the office" of Federal President within the meaning of those words of sub-rule 20(a).

19. It may be added that the applicant's contention is not assisted by Mr. Moore's submission that "where the holder of the office resigns from a position which is a condition precedent to the continued occupation of another position, that is an effective resignation from the second position." That submission is based upon the view, which has already been rejected, that the rules required that Miss Gibbs continue to occupy the position of Branch President as a condition precendent to her continued occupancy of the office of Federal President.

20. The applicant, having failed to establish that Miss Gibbs is not entitled to hold "herself out as . . . Federal President of the Federation", it follows that the court will not make either of the orders set out in paragraph (c) (ii) and paragraph (d) (ii) of the rule to show cause. However, as already stated, orders will be made in the terms of paragraphs (c) (i) and (d) (i).

21. The foregoing is sufficient to dispose of the matters falling for decision at this stage. However, having regard to the arguments which have been advanced and to the particular circumstances of this case, it may be desirable to refer briefly to some of the other matters as to which submissions have been advanced.

22. It was submitted by the applicant that Miss Gibbs had automatically lost office as Federal President. Even if, contrary to the opinion already expressed, Miss Gibbs was, by reason of her resignation from the position of President of the Victorian Branch, no longer eligible to hold the office of Federal President, in my opinion the rules do not show an intention that she should automatically cease to be Federal President. I have formed that opinion as a matter of construction of the rules generally and of sub-rule 20(a) in particular. That sub-rule makes specific provision for the removal from office, by the Federal Council, of any officer, including the Federal President, where she "has ceased, according to these rules, to be eligible to hold the office". That opinion gains some support from what was said by Woodward and Northrop JJ., with whom Smithers A.C.J. agreed, in Allshorn v. Stapleton (1984) 4 FCR 236 at 241.

23. Shortly after the commencement of the hearing, Mr. Moore asked that the rule to show cause be amended by the addition of the following proposed orders:

"That the second to seventeenth respondents
and each of them perform and observe the
rules of the Federation by:

(a) causing the first respondent to be
summoned to a meeting of the Federal
Council in accordance with rule 20;

(b) determining whether the first
respondent has ceased, according to
the rules, to be eligible to hold
office as:

(i) a member of Federal Council

(ii) Federal President,

(c) removing the first respondent from the
office or offices aforesaid as the
case may be in the event that it is
determined that the first respondent
has ceased, according to the rules, to
be eligible to hold either or both
those offices."

24. The amendments will not be made. Insofar as those proposed additional orders relate to Miss Gibbs' office as a member of Federal Council, it is unnecessary to enlarge the rule to show cause because orders are to be made as to those matters. Insofar as they relate to Miss Gibbs' office as Federal President, the proposed orders would not be made because of the opinion already expressed that the first respondent has not "ceased, according to the rules, to be eligible to hold office as . . . Federal President".

25. However, even if that opinion had not been reached, the court would have exercised its discretion against making orders on those matters. The discretion would have been so exercised for reasons similar to those referred to by Woodward and Northrop JJ. in Allshorn v. Stapleton (1984) 4 FCR 236. Their Honours (at 241) referred to the fact that in that case, "the Association was now well advanced towards holding the State elections in New South Wales and South Australia . . . we would have refused the orders sought".

26. As to the factual position in the present case Mr. Moore accepted "the new President will assume office on 1 April (1987). The time required for the holding of a special council meeting is 28 days." In those circumstances, even if the applicant had succeeded on the other matters and judgment had been given on the day of the hearing, the court would have refused to make the orders, in the exercise of its discretion, based upon the extremely short period of time that would have remained between the date of any decision by the Federal Council and the assumption of office by the new Federal President.