Amanda Perkins v Douglas Cameron & Ors [1998] FCA 52 (4 February 1998)

FEDERAL COURT OF AUSTRALIA

WORKPLACE RELATIONS - REGISTERED ORGANISATIONS - election inquiry - inquiry dismissed at first instance - leave to appeal sought by respondent organisation- whether interim relief should be granted to applicant - appropriate test for granting interim relief

Workplace Relations Act 1996 (Cth), s 209

Bogar v Campbell (1995) 59 IR 243, applied

Buchanek v Jones (1989) 34 IR 102, applied

Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, applied

Lewis v Maynes (Federal Court of Australia, Gray J, 19 August 1988, unreported), applied

AMANDA PERKINS v DOUGLAS CAMERON AND ORS

N 58 of 1998

MADGWICK J

4 FEBRUARY 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 58 of 1998

BETWEEN:	AMANDA PERKINS Applicant
AND:	DOUGLAS CAMERON, BRIAN BEER, PAUL BASTIAN, LANCE SHEEN, BRIAN HENDERSON, BILL TAYLOR, BRIAN MASON, JENNY DOWELL, GEORGE PERKINS, GEORGE WARDELL, JIM CLARKE, MARK HOBAN, KEN KIRBY, HOWARD MATHEWS, DALLAS SMITH, PHILLIP STANLEY AND ROBERT CLIVE FOHMSBEE RespondentS
JUDGE(S):	MADGWICK
DATE OF ORDER:	4 FEBRUARY 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Those respondents who have been served to date and each of them do all acts and things necessary:

(a) to allocate to the applicant in accordance with the rules of the Automotive Food Metals Engineering Printing and Kindred Industries Union ("the Union") the duties ordinarily and properly performed by a person who holds or has been elected to the position of New South Wales State Organiser, Printing Division, except that nothing should be done which would permit the applicant to sit or vote at meetings of the New South Wales Regional Council of the Printing Division of the Union; and

(b) to provide the applicant with the salary and other benefits as on and from 5 February 1998 to which a holder of that Union is ordinarily and properly entitled, pursuant to the rules of the Union.

2. Liberty to any party to apply on 24 hours notice.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 58 of 1998

BETWEEN:	AMANDA PERKINS Applicant
AND:	DOUGLAS CAMERON, BRIAN BEER, PAUL BASTIAN, LANCE SHEEN, BRIAN HENDERSON, BILL TAYLOR, BRIAN MASON, JENNY DOWELL, GEORGE PERKINS, GEORGE WARDELL, JIM CLARKE, MARK HOBAN, KEN KIRBY, HOWARD MATHEWS, DALLAS SMITH, PHILLIP STANLEY AND ROBERT CLIVE FOHMSBEE RespondentS

JUDGE(S):	MADGWICK
DATE:	4 FEBRUARY 1998
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR: In this matter the applicant, Ms Amanda Perkins, seeks interim relief in proceedings brought under section 209 of the Workplace Relations Act 1996 (Cth) ("the Act"). The respondents to the application are office holders in a registered organisation, the Automotive Food Metals Engineering Printing and Kindred Industries Union. It will be convenient to refer to that body as "the organisation" or "the union". Mostly the respondents are members of the NSW State Administrative Committee, although Mr Cameron, the first respondent, is the National Secretary. Most, but not all, adopt a position antithetical to that of the applicant.

Background

For about three and a half years the applicant performed work, firstly for what was then the New South Wales branch of an organisation known as the Printing and Kindred Industries Union, and then, following an amalgamation by that union with another registered organisation, for the Printing Division in New South Wales of the organisation. For most of that time she was employed by the organisation in a capacity known as "Recruitment Officer", although that was not an office established expressly under the rules and it may or may not have been - it is a matter of controversy between the parties - an office for the purposes of the rules or of the Act.

In 1997 elections were to be held for various positions including positions in New South Wales known as State Organisers in the Printing Division. The applicant stood for such a position.

The returning officer was a Mr Hill, who had been appointed by the Australian Electoral Commission, as the rules of the union envisaged would be done. Mr Hill raised concerns about the applicant's eligibility for the office, and representations canvassing at least some of the issues were apparently put before him. In the end he determined that she was eligible to stand and on 22 September declared her elected unopposed to an office of State Organiser. That declaration appeared to be accepted by the relevant organs of the organisation.

Other proceedings in the court

In late October 1997 an application for an inquiry into Ms Perkins' election under s 218 of the Act was made by the 17th respondent, Mr Fohmsbee, a member of the organisation. That application became proceeding number NG 894 of 1997 in the Court and was determined by Branson J on 19 December 1997. Her Honour held that having regard to the organisation's rules, the subject office was not an "office" within the meaning of the Act, and as s 218 only applied to such offices, the Court had no jurisdiction to entertain Mr Fohmsbee's claims challenging Ms Perkins' election to the office and accordingly the proceedings were dismissed. Before the point was taken in the proceedings before her Honour, it seems clear that it had been generally assumed within the organisation that offices such as the subject one were offices within the meaning of the Act, and it was evident that the rules - setting up, as the returning officer, a person to be appointed by the Australian Electoral Commission - were framed on that assumption.

The union acts

Within a week after Branson J's dismissal of his application for an inquiry into the election, Mr Fohmsbee had asked Mr Bastian, the New South Wales State Secretary of the organisation, to determine Mr Fohmsbee's claims that Ms Perkins was ineligible to hold office. In response to that request Mr Bastian purported firstly to treat that request as a "complaint" about supposed "action" by Ms Perkins under rule 30 of the rules of the organisation which, at least on its face, looks more apt to deal with matters of a disciplinary nature, and to arrange for the State Administrative Committee to determine the matter. Mr Bastian also purported to "determine" that the office to which Ms Perkins had been elected "should remain vacant" until the State Administrative Committee determined the matters raised by Mr Fohmsbee.

The applicant seeks interim relief requiring that the respondents and each of them in effect treat her as holding the office to which she was elected by assigning her duties and by paying her salary. She seeks also that no steps be taken to deal with the purported charge or complaint.

Arguable Matters

The applicant, in my view, has a strongly arguable case that Mr Bastian exceeded his powers under the rules in both of those respects and misconceived the position as to the applicability of rule 30 to a situation such as that which Mr Fohmsbee was wishing to put forward for consideration by the union. In my view, it is also arguable that, whether under rule 30 or otherwise, the State Administrative Committee cannot deal with the matter of ineligibility of a candidate who has been, on the face of it, properly declared elected by a returning officer established under the rules, under its general powers to administer the rules of the union in the interests of the members.

Those respondents who oppose Ms Perkins' application also have, in my view, an arguable case on those three issues.

Leave to appeal against Branson J's decision sought

The organisation and/or those respondents who oppose Ms Perkins could have taken proceedings under s 209 or otherwise before Branson J to enable the substance of their contentions to be determined by the Court in a timely way. They did not do so. The organisation is presently seeking leave to appeal against Branson J's decision and that application, as I understand it, is listed for hearing before Foster J next week, although the parties are not entirely clear as to whether it is listed only for directions aimed at facilitating such a hearing.

The respondent's position

The major argument against interim relief was that the Court should do nothing until the outcome of the application for leave to appeal in the election inquiry proceedings is known. If leave to appeal is granted, then those proceedings would be still on foot and would provide an appropriate context within which interim orders might be made. Section 209 (subsections (3) and (4) in particular) contemplates that the parties to litigation such as this should be encouraged to try to find solutions to their problems internally within the organisation. Ms Perkins has in effect come to the Court prematurely, before the State Administrative Committee has had a chance to look at the matter.

It is also thought that, if Ms Perkins was, in substance, to be reinstated on an interim basis to the office to which she was elected, this might cause difficulty with other staff Ms Perkins and another employee of the organisation engaged in an administrative capacity were dismissed in late 1997 (after the returning officer had declared Ms Perkins elected) for allegedly having had unlawful access to certain membership records of the organisation. Apparently the organisation has policies and practices designed to protect the privacy of members and to seek to avoid any unfair factional advantage being taken in relation to contentious matters such as elections. Both Ms Perkins and the other former employee, as I understand it, have commenced proceedings in the New South Wales industrial system seeking relief for allegedly wrongful termination of their employment. An inference arises from the material before me that the other administrative staff were upset that their colleague had been dismissed but were to some extent mollified because Ms Perkins had also been dismissed as the alleged instigator of the supposedly wrongful access. The suggestion is that it would have had an unsettling effect on the staff if Ms Perkins were to carry out the duties of the subject office. Reference was made to what may be the powers of Mr Bastian to coordinate the work of the organisers such that contact between Ms Perkins and the administrative staff might be minimised. I say no more than that because there may well be future contention, I suspect, between the parties about that subject.

Mr Rothman of senior counsel, who appeared for Ms Perkins, approached the matter initially as if it should be determined upon the familiar principles concerning interlocutory injunctions, where one seeks to discover whether there is a prima facie case and then looks at the balance of convenience.

Mr Haylen of senior counsel, who appeared for some of the respondents, contended that the preferable and more correct course is as adumbrated by Gray J in Lewis v Maynes (Federal Court of Australia, 19 August 1988, unreported) and Buchanek v Jones (1989) 34 IR 102, and by Keely J in Bogar v Campbell (1995) 59 IR 243. As Keely J put it, having surveyed the authorities (including a like approach by Jenkinson J as a member of a Full Court in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 109):

"The Court should make those orders ... it considers that... the material placed before it [and the circumstances]... make it just that [such] orders be made."

Conclusions

I agree with the approach taken by Keely and Gray JJ. The test is a broad one of justice and, I might add, practicability. The general thrust of that approach is even more apposite now than when those cases were decided because of the emphasis in s 209(3) and (4) upon the matters subject to such an application being resolved within the organisation, if that can be done.

In my view, in this case there is no basis, having regard to the emphasis in those subsections, for denying the applicant appropriate interim relief. It appears clear to me from the circumstances that I have outlined that there is scant prospect of this matter being resolved within the organisation. The State Administrative Committee confirmed and, as it were, adopted the appropriateness of Mr Bastian's actions. It may be observed, without my straying too far into much comment, that this included a purported suspension from an office to which Ms Perkins had been elected without giving her an opportunity to be heard on the question of whether she should be so suspended. The prospects for a consensual resolution of the matter which would satisfy all parties within the union appear to me to be slender.

The other reasons why I think Ms Perkins should have, in substance, the relief she seeks are these. Firstly, the subject office continues to exist. Its continued existence is prima facie evidence that it is necessary to have such an office in the interests of the members of the union. It is presumably in their interests that the office be filled. On the face of it, nobody has a better claim to fill that office than Ms Perkins.

Secondly, the questions concerning her eligibility for the office depend upon whether she was, in law, a member of the union at particular times and for particular periods. At virtually all relevant times she appears to have been treated on all hands as if she was a member of the union. It does not deny the point that, as I understand it from Mr Haylen, the circumstances in which she was so treated appear to be somewhat unusual.

Thirdly, if the union's contentions as to the Court having jurisdiction under section 218 in relation to this office are correct, then the scheme of section 218 would be that Ms Perkins would hold the office unless the Court was positively moved to make an interim order substituting some other regime. Those opposing her in the section 218 proceedings would need to make out some sort of a case for such an order. Thus, those Mr Haylen represents are contending that a curial regime should operate which would give Ms Perkins prima facie occupancy of the office until the result of the inquiry was known. I think that she should therefore be regarded in these proceedings as having something like a prima facie right to be there. In saying that, I am not, of course, intending to trespass on the province of any judge who may be asked to deal with any application for interim relief in any other proceeding before the Court.

Fourthly, it is not only that there is no other present contender with a competing claim to the office. Nothing was put before me to suggest that there is any other obvious candidate to take her place, although, as Mr Haylen says, in general candidates are not wanting for vacant offices of union organiser. Nevertheless, in my view, the applicant should in substance have the relief that she seeks.

One of the consequences of the relief sought, as the Notice of Motion was framed, would be that Ms Perkins would be likely to sit and vote on the Regional Council of the Printing Division. Mr Rothman sought to answer Mr Haylen's point that there would a "trail of invalidity" created if it should subsequently turn out that Ms Perkins was not, indeed, entitled to hold the subject office by submitting that, in effect, section 255 of the Act would guarantee the validity of acts done by that committee. Mr Haylen points out that s 255 only applies, or may only apply, where invalidity is "later . . . discovered" in the election of a member of the relevant collective body. It seems to me that the Court should seek to avoid the creation of future controversy, and I indicated that there would be a qualification on the interim relief to that effect.

The orders, in the result, that I will make are these:

Pending the final determination of these proceedings, those respondents who have been served to date and each of them do all acts and things necessary:

(a) to allocate to the applicant in accordance with the rules of the organisation the duties ordinarily and properly performed by a person who holds or has been elected to the position of New South Wales State Organiser, Printing Division, except that nothing should be done which would permit the applicant to sit or vote at meetings of the New South Wales Regional Council of the Printing Division of the organisation; and

(b) to provide the applicant with the salary and other benefits as on and from 5 February 1998 to which a holder of the office of State Organiser is ordinarily and properly entitled, pursuant to the rules of the organisation.

Generally I will give liberty to any party to apply on 24 hours. In particular, that is to enable the Court to determine, if necessary, whether there should be any further dealing within the union with the matters Mr Fohmsbee has raised with the organisation, pending the outcome of the two proceedings which are now before the Court.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated: 4 February 1998

Counsel for the Applicant:	S Rothman SC
Solicitor for the Applicant:	Geoffrey Edwards and Co
Counsel for the Respondent:	W Haylen QC
Solicitor for the Respondent:	Taylor and Scott
Date of Hearing:	4 February 1998