Fegan v Jackson [2009] FCA 319 (6 April 2009)

Last Updated: 9 April 2009

FEDERAL COURT OF AUSTRALIA

Fegan v Jackson [2009] FCA 319

INDUSTRIAL LAW – organisations – special general meeting called under rules of the union – whether interim orders should be granted to cancel or adjourn the special general meeting – whether a serious question that the challenged rules are invalid as contravening s 142 of Schedule 1 to the Workplace Relations Act 1996 (Cth) as being oppressive, unreasonable or unjust – whether balance of convenience favours grant of interim orders – application refused

PRACTICE AND PROCEDURE – test to be applied on an application for interim orders

Workplace Relations Act 1996 (Cth) ss 5(1), 5(2), 5(3), 142, 163, 164, 164A, 164B of Schedule 1

R v Joske; ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; (1976) 135 CLR 194 referred to
Allen v Townsend [1977] FCA 10; (1977) 31 FLR 431 cited
McGee v Sanders (No 2) [1991] FCA 554; (1991) 32 FCR 397 referred to
Conquo v Jackson [2009] FCA 45 referred to
Moffitt v The Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 referred to
Municipal Officers’ Association of Australia v Lancaster [1981] FCA 151; (1981) 54 FLR 129 referred to
Griffiths v Ansett Pilots Association [2001] FCA 1215 discussed
Hodder v Australian Workers’ Union (1985) 9 FCR 498 cited
Lawley v Transport Workers’ Union of Australia (1987) 22 IR 114 cited
Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 cited
Gordon v Carroll (1975) 27 FLR 129 cited
Boland v Munro (1980) 48 FLR 66 cited
Scott v Jess (1984) 3 FCR 263 cited

PAULINE FEGAN v JEFF JACKSON and HEALTH SERVICES UNION
VID 186 of 2009

KENNY J
6 APRIL 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 186 of 2009

BETWEEN:

PAULINE FEGAN Applicant

AND:	JEFF JACKSON First Respondent HEALTH SERVICES UNION Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	6 APRIL 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The interim orders sought by the applicant be refused.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 186 of 2009

BETWEEN:

PAULINE FEGAN Applicant

AND:	JEFF JACKSON First Respondent HEALTH SERVICES UNION Second Respondent

JUDGE:	KENNY J
DATE:	6 APRIL 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Pauline Fegan, brings this proceeding as President of Victoria No. 1 Branch of the Health Services Union, and a member of the Union. The first respondent, Mr Jeff Jackson, is the Branch Secretary of Victoria No. 1 Branch. Ms Fegan seeks interim orders pursuant to ss 163 and/or 164 of Schedule 1 to the Workplace Relations Act 1996 (Cth) requiring Mr Jackson to cancel the special general meeting called by him for 8 April 2009 and to give notice of such cancellation to all members of Victoria No. 1 Branch. Alternatively, Ms Fegan seeks an order adjourning the proposed special general meeting to a later date, to allow the issues in the proceeding to be determined by the Court.
2. In support of her application, Ms Fegan contends:

(1) Mr Jackson has invalidly called the proposed special general meeting for 8 April 2009;
(2) Certain rules of the Union are contrary to the Workplace Relations Act in that they fail to make provision for the control of the Branch committee by the members and/or they are oppressive, unreasonable or unjust; and/or
(3) The rules of the Union as a whole fail to make provision for the control of the Branch committee by the members and/or they operate in a way that is oppressive, unreasonable or unjust in that a special general meeting of branch members with a quorum as low as 25 can alter the rules of the Branch.

3. Counsel for the Union, which was the second respondent, and counsel for Mr Jackson defended the rules of the Union and opposed the grant of the relief that Ms Fegan sought.
4. The applicant relied on her own two affidavits affirmed on 26 March 2009 and 31 March 2009. The respondents relied on three affidavits of Katherine Jackson, who is the National Secretary of the Union, one affirmed on 30 March 2009 and two on 31 March 2009.

BACKGROUND

5. For present purposes, the facts can be taken to be as follows:

(1) The Branch has approximately 15,500 members across Victoria. Approximately 40% of these members work in rural and regional areas at a significant distance from Melbourne. Many members work in the outer suburbs of Melbourne. Many members also work shift work.

(2) There is a dispute within the Branch at Branch Management level. The parties disagree about the origins of the dispute and the precise identity of all the disputants.
(3) In her first affidavit, Ms Jackson states:

I am informed by Jeff Jackson ... that around 4 and 5 March 2008 a petition was circulated to members of the Victoria No 1 Branch of the [Union] seeking that a meeting of members be held to overturn certain decisions of the Branch Committee of Management and to consider other matters. On or about 5 March 2009, the petition was presented to Mr Jackson, in his capacity as Branch Secretary of the [Branch], requesting that a Special General Meeting of the [Branch] be called.

(4) On or around 5 March 2009 Mr Jackson, as Branch Secretary, sent a notice to all members of the Branch that a special general meeting was to be held on 8 April 2009 at Dallas Brooks Hall in East Melbourne at 6.30 pm.
(5) In her first affidavit, Ms Jackson said:

The SGM Notice was mailed to all delegates (some 800 members) by Express Post and to all other members of the [Branch] by ordinary mail.

...

I am informed by Sam Kelly, an employee of the [Union], that the costs involved in distributing the SGM Notice include the cost of postage to the 15,449 members of the branch of approximately $11,300. A deposit of $2,500, which I understand to be non-refundable, has been paid for the use of the Dallas Brooks Hall on 8 April 2009.

In her second affidavit, Ms Fegan stated that, as a Branch member, she had not received the notice and that she had been informed by some delegates that they too had not received the notice. (The rules of the Union required that notice be given to delegates: rule 62(c).)

(6) At a meeting on 13 March 2009, the Branch Committee passed a resolution to the following effect:
The Branch Committee notes that the Branch Secretary has called a special general meeting of the Branch on Wednesday, 8 April 2009 at 6.30 pm. So that the Branch Committee can satisfy itself that the petition to hold a special general meeting that the Branch Secretary has relied on is valid, the Branch Committee directs the Branch Secretary to produce to all members of the Branch Committee by 5.00 pm Tuesday, 17 March 2009:

(a) the petition containing the signatures that he relied on to call the special general meeting on 8 April 2009; and

(b) a list of all financial members of the Victoria No. 1 Branch as at 16 March 2009 including their full name and work place.

This resolution was passed unanimously.

(7) Mr Jackson did not provide a copy of the petition and list of members until 23 March 2009.

6. In their affidavits, Ms Fegan and Ms Jackson disagreed as to whether, or to what extent, the timing of the proposed meeting would prevent or deter Branch members from attending.

• In her first affidavit, Ms Fegan stated that the proposed Special General Meeting in Melbourne was to be held at a time “when many members may not be able to attend”. Ms Fegan also said that “[h]istorically the Branch Committee have had a lot of difficulty holding meetings in the evening as members from regional areas can not attend. To accommodate members meetings are generally held at either 11am or 2.00pm”.

• Ms Jackson responded that, from discussions with Branch members, she was “aware that a number of members of the [Branch] have made arrangements – such as re- arranging work rosters – so that they may attend the Special General Meeting on 8 April 2009”. Ms Jackson added that:

I am informed by Mr Jackson that approximately 10,600 [Branch] members (out of a total of 15,449) list their home address at a location within a 70 kilometre radius of Dallas Brooks Hall.

Ms Jackson said further:

The [Branch] conducts general meetings on a quarterly basis, and it also conducts an annual general meeting. Those are general meetings that can be attended by any member of the [Branch] ... Those meetings are consistently held at night time – usually commencing at approximately 6:30pm or 7.00pm – and in Melbourne. Those arrangements have been in place, for the [Branch’s] quarterly general meetings, for as long as I have been involved with the [Union].

• Ms Fegan replied that whilst “it is correct that past meetings have been held at around 6:30pm or 7.00pm ... those meetings rarely have a quorum”.

LEGISLATION

7. With this background in mind, it is convenient to turn to the relevant legislative provisions.
8. Schedule 1 to the Workplace Relations Act – “Registration and Accountability of Organisations” – contains most of the legislative provisions relevant to the present application. As the applicant’s counsel noted, each of the provisions on which the applicant relies (ss 163, 164 and 164B) has a long history in industrial law jurisprudence.
9. In seeking interim orders, the applicant relies on s 163 of Schedule 1, which relevantly reads:

(1) A member  ... of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

(2) If the application is made by a member, the order under this section may declare that the whole or a part of a rule of an organisation contravenes section 142 or that the rules of an organisation contravene section 142 in a particular respect.

...

(4) An organisation in relation to which an application is being made under this section must be given an opportunity of being heard by the Court.

...

(6) Where an order under this section declares that the whole or a part of a rule contravenes section 142, the rule or that part of the rule, as the case may be, is taken to be void from the date of the order.

 ... 

(10) At any time after a proceeding under this section has been instituted, the Court may make any interim orders that it considers appropriate in relation to a matter relevant to the proceeding.

(11) An order under subsection (10) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

 ... 

(13) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.

10. The applicant also relies on s 164 of Schedule 1, which permits a member of an organisation to apply for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules. As the applicant noted, in R v Joske; ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; (1976) 135 CLR 194 at 212-213, Mason and Murphy JJ discussed the precursor of s 164, including s 164(4). ( I refer to their Honours’ observations, without setting them out.) Section 164(4) provides for the Court to make interim orders “that it considers appropriate ...”. Further, under s 164B(3) of Schedule 1, the Court, in considering an application under s 164 (or s 164A), may, by an order, make a declaration that the whole or a part of the rules of the organisation contravene s 142 or that the rules of the organisation contravene that section in a particular respect: see Allen v Townsend [1977] FCA 10; (1977) 31 FLR 431 at 481.
11. Counsel for the applicant contended that certain of the Union’s rules contravene s 142 of Schedule 1. Section 142(1) reads as follows:

The rules of an association:

(a) must not be contrary to, or fail to make a provision required by this Schedule, the Workplace Relations Act, an award or a collective agreement, or otherwise be contrary to law; and

(b) ...

(c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Schedule (see section 5) and the objects of this Schedule and the Workplace Relations Act, are oppressive, unreasonable or unjust; and

(d)  ... 

12. Subsection 5(1) of Schedule 1 states that it is Parliament’s intention in enacting the Schedule “to enhance relations within workplaces between federal system employers and federal system employees and reduce the adverse effects of industrial disputation”. Subsection 5(2) provides that “Parliament considers that those relations will be enhanced and those adverse effects reduced, if associations of employers and employees are required to meet the standards set out in this Schedule ...”. Subsection 5(3) provides that the standards set out in the Schedule:

(a) ensure that employer and employee organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.

As noted above, the applicant submitted that rule 49(d) of the rules of the Union is invalid because it contravened s 142(1)(c) of Schedule 1, particularly in so far as it contains the words “or by a special general meeting of its members”. The applicant also contended that rule 62(f) was invalid as contravening s 142(1)(c).

THE RULES

13. In order to understand the applicant’s challenge to the rules of the Union, it is necessary to set out some of them. I commence with rule 49 concerning “Branch Management”. This rule relevantly provides:

(a) The Government, management and the control of the affairs of each branch shall, subject to these rules and any proper direction of the National Council or the National Executive be vested in a Branch Committee. ...

...

(d) Each branch may make rules from time to time for its own internal management and may therefore add to, amend, rescind or alter any of these rules insofar as they relate to the internal management of a branch through its Branch Committee of Management or by a special general meeting of its members.

 ...  (Emphasis added)

14. Rule 62 deals with “Branch General Meetings”. Rule 62 provides:

(a) An Ordinary General Meeting of the branch may be called at any time on a resolution of the Branch Committee being carried that such a meeting be held.

(b) A Special General Meeting of the branch shall be called by the Branch President or the Branch Secretary upon receipt by him/her of a request signed by not less than 200 financial members or five per cent of the members of the branch, whichever is the lesser amount. Such request shall state the business to be discussed at the meeting and shall contain the signature and name written in block letters of each petitioner and shall also contain a statement that the petitioner has read and understood the request prior to attaching his or her signature.

(c) Not less than one month’s written notice of the time, place and agenda of all General Meetings shall be given to each shop steward of the branch. Providing that when a matter requires immediate attention such lesser notice of a Special General Meeting as may be determined by the Branch Committee may be given.

(d) A Special General Meeting shall not be competent to deal with any matter other than the reason set out by petition of members or the notification of such meeting as has been given by the Branch Committee.

(e) Any Ordinary General Meeting or Special General Meeting shall be held at such time and place as shall be determined by the Branch Committee of the branch, but should such Special General Meeting be called under the provisions of paragraph (b) it shall be held not later than 35 days following the receipt of the petition by the President or Secretary of the branch.

(f) No General Meeting of members of a branch who have power to direct a Branch Committee or reject or review a decision of a Branch Committee unless at least 200 members or 5 per cent of the financial members of the branch (whichever amount is the lesser) are present at the meeting.

15. The provisions of rule 64 are relevant in that rule 64(a)(i) provides that the quorum at any General Meeting of a branch shall be 25 financial members.
16. Further, the parties also referred to the provision for a branch plebiscite in rule 66. Rule 66 provides as follows:

(a) Notwithstanding anything contained in these rules, a plebiscite of all members of a branch –

(i) may be held for any purpose at the discretion of the Branch Committee; and,

(ii) shall be held if requested by a requisition in writing and signed by not less than 5 per cent of the financial members of the branch.

Such requisition to contain in block letters the name of each member signing same and the name of the establishment at which such member is employed. Provided that no decision of a Branch Committee shall be reviewed or referred to a plebiscite of members pursuant to paragraph (ii) of this clause unless the appropriate request has been delivered to the Branch President or Branch Secretary within two months of the said decision.

(b) Any such plebiscite shall be conducted by secret postal ballot and shall be under the absolute control and direction of the Branch Returning Officer who shall-

(i) prepare ballot papers which shall contain the question to be voted on;

(ii) issue a ballot paper to each member entitled to vote;

(iii) determine the time and date for the closure of the ballot, having consideration for the convenience of the voters;

(iv) take such steps that are necessary to ensure that a result is correctly ascertained; and,

(v) report the result of the plebiscite to the first meeting of the Branch Committee held after the conclusion of the counting of the votes cast.

(c) A simple majority decision of the members voting shall be final and shall prevail over any contrary decision of the Branch Committee.

17. Finally, rule 71 provides for the alterations of rules. In particular, rule 71(c) provides that:

Nothing contained in this Rule shall derogate from the power conferred by Rule 49 on a branch to make Rules for its own internal management but details of any proposal to make such a Rule shall be contained in the notice calling the special general meeting of members at which the proposal is to be considered.

TEST FOR INTERIM ORDERS

18. The parties did not dispute the nature of the test to be applied on an application for interim orders. In McGee v Sanders (No 2) [1991] FCA 554; (1991) 32 FCR 397, at 402-403, Gray J discussed the test to be applied, saying:

In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants’ entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make “such interim orders as it considers appropriate”. Parliament has not chosen to use the word “injunction”. The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis.

In Conquo v Jackson [2009] FCA 45, at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. Broadly speaking, on the present application, counsel approached the matter by examining the “serious question” issue and the “balance of convenience”, noting at the same time that it was “the duty of the court to do justice as best it can”.

PARTIES’ SUBMISSIONS

19. The applicant’s basic submission was that the convening of the proposed Special General Meeting would be invalid as occurring under invalid rules. For the purposes of this interim orders application, at the hearing, the applicant did not rely on an argument foreshadowed in its written submissions and elsewhere to the effect that the Branch Secretary was not empowered to call the meeting because that power was vested in the Branch Committee by virtue of rule 62(e).
20. The applicant challenged that part of rule 49(d) that contained the words “or by a special general meeting of its members”. The applicant argued that the rule was invalid as contravening s 142(1)(c) of Schedule 1 in so far as it permitted a Special General Meeting to alter the rules of the Branch because, by reason of rules 49(d) and 64(a)(i), as few as 13 members in a Special General Meeting were able to alter the rules. There was, so the applicant said, no means of overcoming the determination of such a Special General Meeting because neither the Branch Committee of Management nor a plebiscite could set the determination aside. The applicant contended that, in a branch with more than 15,000 members, to allow such a small number to control the content of the rules of the Branch was oppressive, unreasonable or unjust.
21. Secondly, the applicant argued that rule 62(f) was invalid in so far as it permitted a General Meeting of Members to direct a Branch Committee or override its decisions by a potential vote of 101 members, in circumstances where the Committee is elected by the whole of the membership. The applicant contended that this was particularly significant because of the lack of provision in rule 62 for all members to have a reasonable opportunity to attend the meeting, bearing in mind the geographical dispersion of members: see [22] below.
22. Thirdly, the applicant contended that rule 62 was invalid as contravening s 142 because it failed to provide for the control of the Branch Committee of Branches of the Union since it did not make appropriate provision for General Meetings of the Branch that would allow all members of the Branch an opportunity to attend.
23. Finally, and by way of an alternative argument, the applicant submitted that the Rules in combination did not allow for democratic control by the members of the Branch and/or were oppressive, unreasonable or unjust. The applicant submitted that rule 62 did not make any appropriate provision for General Meetings that would allow all members of the Branch the opportunity to attend. The applicant relied on her challenges to rule 49(d) and rule 62(f) and the claimed lack of any mechanism for overriding a decision of a General Meeting. The applicant argued that rule 66 did not permit the members in plebiscite to overrule the decision of the 13 at a General Meeting to alter the Rules, or the decision of the 101 at a General Meeting to override the decision of the Branch Committee.
24. As to what might be loosely called the “balance of convenience”, counsel for the applicant submitted, first, that considerable confusion would result, if the Special General Meeting went ahead and the rules were later found to be invalid. Counsel submitted that, if the Meeting went ahead and a majority of persons voted for the proposed rule changes, there would be substantial changes to the governance of the Branch. The applicant’s counsel contended that the elected Branch Committee would no longer have direction of the Branch Secretary and the Branch Assistant Secretary; and existing decisions of the elected Branch Committee would be overturned. The applicant submitted that the resulting uncertainty and instability in the operation of the Branch would remain whilst the proceeding continued. The applicant conceded that there would be some loss of expenditure if interim orders of the kind she sought were made, but, against this, the Union would be put to considerable expense if the Meeting went ahead and were subsequently found to be invalid. If the Special General Meeting were delayed until the determination of the validity of the rules under which it is proposed to be held, then, said the applicant, there will be no detriment to the conduct and affairs of the Branch in the interim.
25. Counsel for Mr Jackson contended that the applicant’s submissions were misconceived and that, in this context, regard should be had to the object of rule 62(b), (e) and (f). Counsel submitted that rule 62(b) and (e) sought to ensure that the members had a mechanism to control the governing body, by providing that if the requisite number of financial members signed a petition for a Special General Meeting, then they should have such a Meeting “not later than 35 days following the receipt of the petition by the President or Secretary of the branch”. Furthermore, pursuant to rule 62(f), a General Meeting could not direct a Branch Committee or override its decision unless there were at least 200 financial Branch members present at the Meeting. According to counsel for Mr Jackson, these provisions were in the nature of democratic controls.
26. Further, counsel for Mr Jackson submitted that the application for interim orders was premature, since the proposed Special General Meeting had the power to transact business validly and the applicant was effectively challenging actions that the Meeting might not take. Counsel developed this argument by acknowledging that, under rule 62(b), the petition had to state the business to be discussed at the Meeting and, under rule 62(d), the resulting Meeting was not “competent to deal with any matter other than the reason set out by the petition”. Counsel observed, however, that, acting within these parameters, it was open to the Special General Meeting to deal with a relevant matter in various ways – not all of which could be open to the objection taken by the applicant.
27. Further, according to counsel for Mr Jackson, the applicant mistook the effect of rule 66, which permitted a plebiscite to be had on directions to be given to the Branch Committee or on decisions reached by a Special General Meeting. Counsel drew attention to the very wide language of rule 66(a). Further, counsel for Mr Jackson argued that the applicant’s argument based on rule 64 was overly simplistic, because it had to be borne in mind that there could be no Special General Meeting by petition unless some 200 financial members wanted it and the delegates (and thereby the members) had been notified of the Meeting and the business that it was to discuss: see rule 62(c).
28. Counsel for Mr Jackson also argued that, under the Rules, it would be open to the Branch Committee to call a General Meeting; alternatively, another petition could initiate another Special General Meeting. If the Branch Committee were to call a Special General Meeting, then, according to Mr Jackson, it might do so speedily: see rule 62(c). Alternatively, under rule 66(a)(i), the Branch Committee had a discretion to hold a plebiscite.
29. There was no harm, according to counsel for Mr Jackson, in allowing the proposed Special General Meeting to proceed. If the Meeting passed the resolutions set out in the notice of Meeting, it would be open to the applicant at that stage to raise the question of validity with the Court. At most, the entire cost of the hire of the meeting place would have been incurred. As counsel for Mr Jackson said, it was as yet unknown whether the attendance would be great or small. Members had ample notice of the Meeting.
30. Counsel for the Union adopted Mr Jackson’s submissions. He also submitted that there was no evidence that the applicant (or anyone else) would suffer prejudice if the Meeting went ahead, but there would be prejudice to the Union and the petitioners if it did not. Counsel for the Union emphasised the narrow subject matter of the proposed Meeting; the scheme of the Rules in this present context; and the notice requirements.

CONSIDERATION

31. There is little dispute about what is intended by the words “oppressive, unreasonable or unjust”. In Moffitt v The Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 at 175, a Full Court adopted the meaning given by Deane J to these words in Municipal Officers’ Association of Australia v Lancaster [1981] FCA 151; (1981) 54 FLR 129 at 165, where his Honour said:

Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful ... To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play ...

In effect, the applicant argued that the rules under challenge are oppressive, unreasonable or unjust because they fail to make proper provision for the control of the Branch committee by the members as opposed to a clique of members.

32. The first question is: has the applicant raised a serious question as to whether the particular rules under challenge, or the rules in combination, are invalid as contravening s 142(1)(c) of Schedule 1 as being oppressive, unreasonable or unjust in the manner outlined?
33. Particularly in support of the submission that rule 62 did not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend, counsel for the applicant relied on Griffiths v Ansett Pilots Association [2001] FCA 1215, in which Ryan J said, at [9]:

It is common ground that the control provided for by the rules must be available in a practical sense and must not be susceptible to obstruction or unreasonable delay by the committee concerned. The related general observation can be made, in this context, that the reasonableness of the rules of an organisation, within the meaning of s 196 of the Act, is to be measured by what is practicably achievable under the rules in the actual circumstances in which they operate.

(Section 196 was a precursor to s 142 of Schedule 1. )

34. Ryan J continued, at [10]:

The circumstances to which I referred in the last paragraph, or “extrinsic facts” as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged.

This principle derives from such authorities as Hodder v Australian Workers’ Union (1985) 9 FCR 498, at 502 per Pincus J, approved in Lawley v Transport Workers’ Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59; and Gordon v Carroll (1975) 27 FLR 129, at 173 per Smithers, Woodward and St John JJ.

35. As Ryan J noted in Griffiths [2001] FCA 1215, at [14], the rules under consideration in that case contemplated that each general meeting be held at only one place prescribed by the proper body or officer. After recording counsel’s submission that the rules of the Association did not infringe s 195(1)(b)(iv) as the Act then stood, his Honour said, at [25]-[26]:

... “control” as used in that provision, extends to control between elections. It is possible, particularly for an organisation with relatively few members, to provide for such control by granting a reasonably small number of members the facility to require the calling of a general meeting if such a meeting has the power to give directions to the relevant committee. No such power appears to be reposed by the rules in their present form in a general meeting of the Association. Moreover, the facility to require a general meeting which is accorded by rule 34 of the Association’s rules is severely circumscribed by the location of its members and the nature of their work. As well, the fact that a single general meeting may only be convened at one place and at one place and at one time, in the light of the geographic distribution of the Association’s members and their variously rostered working hours and the restrictions on voting by proxy, precludes that facility from according to members the requisite degree of control. ...

It might have been otherwise had the rules permitted the calling of general meetings at several locations and staggered hours to maximise the opportunity for members to attend, and had the rules permitted the votes cast at such meetings to be aggregated for the purpose of deciding whether a binding direction had been given to the COM. However, while the rules remain in their present form, I do not consider, putting to one side new rule 56, that they provide in the requisite sense for control of the COM by the members.

36. The applicant argued that Ryan J’s ruling in Griffiths [2001] FCA 1215 was apposite to this case. Mr Jackson did not dispute the principles outlined by his Honour, but affirmed that the present case was a different one from Griffiths [2001] FCA 1215.
37. In effect, the applicant’s case was that, having regard to the nature of the members’ employment, general meetings were not an adequate controlling mechanism and that a plebiscite should be the means by which the governing body was controlled by members but that a plebiscite could not operate in this way under the Union’s rules. To make good the first part of this argument, the applicant again relied on Ryan J’s analysis in Griffiths [2001] FCA 1215, where, citing Boland v Munro (1980) 48 FLR 66, his Honour said at [28]:

Control [in the relevant sense] is not confined to the control which may be said to be exercisable through the ballot box at elections but extends, in a limited sense, to control between elections. ...

His Honour accepted that, “control”, in the present context, meant a power to check or restrain and not dominating control: [29]. In Griffiths [2001] FCA 1215 at [40]- [41], Ryan J concluded that:

[I]n evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. ...

...

Because I have been persuaded ... that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure.

38. As Mr Jackson pointed out, however, in Griffiths [2001] FCA 1215, Ryan J was concerned with a meeting of a national union, whose membership was dispersed through-out Australia and more than half of whom were likely at any one time to be preparing for flight duties. I accept, as Mr Jackson submitted, that the present case might well be relevantly distinguishable from Griffiths. On the evidence as it presently stands, it cannot be said that there is necessarily a Griffiths-type situation. Indeed, as Mr Jackson reiterated, there was some evidence before the Court that 10,600 Branch members (out of a total of 15,449) listed their home address at a location within a 70 kilometre radius of Dallas Brooks Hall in central Melbourne. Moreover, none of the evidence before the Court about attendance at Branch meetings apparently related to attendance at Special General Meetings.
39. I am not persuaded that the applicant has made a sufficient showing that rule 62 does not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend. In this context, it seems to me that it must be borne in mind that rule 62(c) requires that notice of the proposed Special General Meeting be given to each shop steward, presumably so that such notice can be conveyed to the members. Rule 62(e) provides that, in such a case as this, the Meeting be held within 35 days of the receipt of the petition, and at a time and place determined by the Branch Committee. As counsel for Mr Jackson noted, the power to appoint a time and place must be exercised bona fide and for the purpose for which it was conferred – in furtherance of the democratic participation of the members in the Meeting: compare Allen v Townsend 31 FLR at 483-488 and Scott v Jess (1984) 3 FCR 263 at 287.
40. As apparent from the forgoing discussion, the applicant’s challenge to rules 49(d) and 62(f) turned very much on the applicant’s construction of rule 66, which provides for branch plebiscites. On this application for interim orders, however, for the following reasons, the applicant has not made sufficient showing that rule 66 is to be construed as narrowly as she would have it.
41. Having regard to the strong opening words of rule 66(a), “notwithstanding anything contained in these rules”, and the clear and express language of paragraph (a)(i) of rule 66, that a plebiscite may be held “for any purpose”, it does not seem to me that rule 66 is necessarily to be limited in the manner for which the applicant contends. The applicant relied on rule 66(c), but rule 66(c) in terms does no more than establish that a simple majority can, on a plebiscite, overturn a decision of the Branch Committee. Rule 66(c) does not deal with decisions of General Meetings. The limitation for which the applicant contends can only be an implied limitation, which runs contrary to the express language of rule 66(a). Further, there is, so it seems to me, at least at this stage of the proceeding, no justification as a matter of purpose or policy to read the rule in the way for which the applicant contends, especially given the fundamentally democratic aspect of a plebiscite to control governance of the Branch. On the basis of the arguments as thus far developed, it seems to me that the members of the Branch might vote in a plebiscite effectively to overrule a decision made in a Special General Meeting.
42. It follows from this that I am unpersuaded by a central element of the applicant’s argument as to invalidity, whether rules 49(d) and 62(f) are considered individually, or the rules are considered generally.
43. I accept, as Mr Jackson urged, that the Court should have regard to the Rules as a whole in assessing the applicant’s contention that, individually or together, the Rules were oppressive, unreasonable or unjust. It follows, so it seems to me, that it is relevant to bear in mind that the proposed Special General Meeting is brought on the petition of not less than 200 financial members, and that not less than 200 such members must be present at the Meeting to reject or review a decision of the Branch Committee. On the basis of the arguments and evidence presently before the Court, I am unpersuaded that these requirements should be adjudged oppressive, unreasonable or unjust. On the contrary, their object is to further democratic control and the evidence as it presently stands does not show that they have, or may reasonably be thought to have, a contrary effect. It seems to me, moreover, that the words “or by a special general meeting of its members” at the end of rule 49(d) must be read with this in mind and in the context of the whole of the Rules, including rule 62(b), (e), (f) and rule 66.
44. In any event, I am unpersuaded that the balance of convenience favours the grant of interim orders. As counsel for Mr Jackson noted, rule 62(e) requires the proposed Special General Meeting to be held by 9 April 2009. The reason for requiring the Meeting to be held in a timely way is apparent enough. The Meeting itself would at least provide the opportunity apparently sought by the 200 or more petitioners to express the members’ views on the business to be discussed at the Meeting. That opportunity would be lost, at least for a time, in the event of cancellation or adjournment of the Meeting. I accept that the applicant is not precluded from pressing her claim about invalidity, or making a further application to the Court after the Meeting if she considers this to be necessary and appropriate. Further, the evidence indicates that significant Meeting costs have already been incurred. Other matters affecting the Meeting remain somewhat speculative.
45. There was an element of delay in bringing this application, although I would not treat this as a weighty consideration. The applicant has been on notice of the proposed Special General Meeting since 13 March 2009, but did not make this application until 26 March 2009, amending on 31 March 2009. Counsel for the applicant noted, however, that the Branch Secretary did not provide a copy of the petition and list of members, as requested by the Branch Committee, until 23 March 2009. This latter circumstance, so it seems to me, provides some explanation for the delay, although perhaps only a partial one.
46. Accordingly, for the reasons stated, I would refuse the interim orders sought by the applicant.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 6 April 2009

Counsel for the Applicant:	Mr H Borenstein SC and Mr W Friend
Solicitor for the Applicant:	Macpherson & Kelley
Counsel for the First Respondent:	Mr M Bromberg SC with Mr C Dowling
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	Mr R Reitano
Solicitor for the Second Respondent	Slater & Gordon
Date of Hearing:	31 March 2009
Date of Judgment:	6 April 2009