Barry Hansch v Transport Workers Union of Australia & Ors [1998] FCA 14 (25 May 1998)

Last Updated: 15 September 1998

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY	TI 1264 of 1995

BETWEEN:	BARRY HANSCH Applicant
AND:	TRANSPORT WORKERS UNION OF AUSTRALIA First Respondent KENNETH JOHN BACON Second Respondent SILAS FRANK MANLEY Third Respondent RAYMOND GEORGE AUSTIN Fourth Respondent JOHN MALLETT Fifth Respondent SAMUEL McCRAE BARKER Sixth Respondent RON HODGETTS Seventh Respondent
JUDGE:	RYAN J
DATE OF ORDER:	25 may 1998
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

MINUTES OF ORDER

THE COURT ORDERS:

1. THAT IT BE DECLARED that any purported grant by the Committee of Management of the Tasmanian Branch of the first respondent of long service leave to the applicant for the whole or any part of the period from 26 September 1995 to 19 April 1996 is void and of no effect.

2. THAT liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

Note: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY	TI 1031 of 1996

BETWEEN:	BARRY HANSCH Applicant
AND:	TRANSPORT WORKERS UNION OF AUSTRALIA First Respondent KENNETH JOHN BACON Second Respondent SILAS FRANK MANLEY Third Respondent RAYMOND GEORGE AUSTIN Fourth Respondent JOHN MALLETT Fifth Respondent SAMUEL McCRAE BARKER Sixth Respondent RON HODGETTS Seventh Respondent
JUDGE:	RYAN J
DATE OF ORDER:	25 may 1998
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

MINUTES OF ORDER

THE COURT ORDERS:

1. That each of the respondents, other than the first respondent, perform and observe the Rules of the first respondent by treating as null and void and of no effect the resolutions carried at a purported special general meeting of the Tasmanian Branch of the first respondent at Launceston on 21 August 1996.

2. That liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

Note: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA	TI 1264 of 1995
TASMANIAN DISTRICT REGISTRY	TI 1031 of 1996

BETWEEN:	BARRY HANSCH Applicant
AND:	TRANSPORT WORKERS UNION OF AUSTRALIA First Respondent KENNETH JOHN BACON Second Respondent SILAS FRANK MANLEY Third Respondent RAYMOND GEORGE AUSTIN Fourth Respondent JOHN MALLETT Fifth Respondent SAMUEL McCRAE BARKER Sixth Respondent RON HODGETTS Seventh Respondent

JUDGE:	RYAN J
DATE:	25 may 1998
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

This is the return of a further rule nisi which forms part of a regrettable saga of litigation between the applicant, Mr Hansch, and the Transport Workers Union of Australia ("the TWU"). Mr Hansch has been employed as an organizer within the Tasmanian Branch of the TWU and was elected unopposed on 8 March 1995 to the office of Tasmanian Branch Organizer. As recounted in my earlier reasons for judgment published on 19 April 1996 in proceedings numbered TI 1264 of 1995, Mr Hansch was absent from his duties after 8 June 1995 and was purportedly dismissed with effect from 12 July 1995. For reasons explained in that earlier judgment, I concluded that there had been no termination of Mr Hansch's employment by his repudiation of his contract and the TWU's acceptance of that repudiation. Those reasons continued:

However, it does not follow that Mr Hansch is entitled to remuneration at the rate stipulated by his contract of employment in respect of the period since 17 July 1995. Normally the right to remuneration depends upon the performance of service; Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 465. I am not prepared to find, on the present state of the evidence, that Mr Hansch performed the requisite service or even remained ready, willing and able to perform it from 17 July 1995 to the commencement of the substantive hearing of his application. Whether the TWU elects to treat part of that period as long service leave granted to, and taken by, Mr Hansch will be a matter for consideration, in the first instance, by the Committee of Management of the Tasmanian Branch. In these circumstances it is not appropriate to make an order under s. 209 of the Act in respect of Mr Hansch's tenure of office or what has been contended to be the termination of his employment. I shall content myself with making a declaration to the effect that Mr Hansch continues at the date of the order to hold office and to be employed as State Organiser (Hobart) within the Tasmanian Branch of the TWU.

By letter dated 13 May 1996, Mr Hansch was advised that the Branch Committee of Management of the Tasmanian Branch of the TWU had determined that he should be expelled from the Union in accordance with Rule 58(b)(ii). However, he successfully appealed to the Federal Council against that expulsion and on 19 July 1996 I made an order in these terms:

That the respondents other than the first respondent perform and observe the rules of the Transport Workers Union by paying to the applicant after deduction and payment or retention of income tax and other necessary or permissible deductions, his salary at the rate stipulated by his contract of employment from 19 April 1996 to date and hereafter as long as the applicant remains ready and willing to perform the duties required of him by the said contract of employment and the rules of the Transport Workers Union as in force from time to time.

For reasons explained subsequently in my second judgment in TI 1264 of 1995 published on 12 February 1997, I also concluded that Mr Hansch was entitled to receive remuneration at the rate specified in his contract of employment from 26 September 1995 to 19 April 1996. The same reasons continue:

Had Mr Hansch been asserting in respect of the period after 26 September 1995 that he was exercising his rights to take long service leave, this conclusion would have operated inequitably on the TWU unless it were allowed an election to treat the relevant part of the remuneration it is required to pay Mr Hansch as having been in satisfaction of his entitlement to long service leave. However, I consider, on the evidence that after 26 September 1995 Mr Hansch had ceased to assert that he was then taking long service leave. He had, through his solicitor, claimed to have "taken" eight weeks' long service leave from 13 July 1995 but that claimed period of long service leave, which was never acceded to by the TWU, would have ended on 7 September 1995. Of course, it remains open to the TWU, upon payment to Mr Hansch of the amount to which he is entitled in respect of accrued long service leave, to treat that leave as having been taken during his absence from work between 13 July 1995 and 26 September 1995.

After Mr Hansch had been notified of the success of his appeal to the Federal Council against his expulsion by the Branch Committee of Management, he returned to work as southern organizer shortly after 10 July 1996. A short while later he received a letter dated 23 July 1996 making further charges in the following terms:

Please be advised that in accordance with Rule 47-1, the Branch Committee of Management of the Transport Workers Union of Australia, Tasmanian Branch have charged you with an offence under Rule 45, i.e. Rule 45-C, gross misbehaviour and have determined by way of a resolution that you be suspended with pay from all duties as of 5.00 p.m., 26 July 1996. Further actions will be taken in relation to this matter, of which you will be given adequate notice.

The charge of gross misbehaviour relates to the following:-

1. The false accusations made against the Branch Committee of Management and myself.

2. The holding of unauthorised meetings of members of the Union.

3. The handing out of material collated by yourself to members containing false accusations.

4. The verbal comments you have made to members in relation to the false accusations.

5. The blatant disregard of the directions given to you by your employer, the Branch Committee of Management, i.e. signing of correspondence - taking of long service leave and failure to attend work.

6. Your correspondence to members undermining the decision of the Branch Committee of Management to restructure the Branch activities and work duties of the officers.

7. Your correspondence to members undermining the Federal Council decision to pursue the fair wages campaign and Enterprise Bargaining.

8. Creating a conflict of interest by applying for the position of Executive Director of the Tasmanian Transport Association.

9. The failure to use as directed an employee of the Union, namely Ron Clegg, by way of restricting his activities in loss of potential members to the Branch.

10. Your memo of the 10 January 1995 in relation to the purchase of stationery for the Hobart office.

On 26 July 1996 Mr Hansch sent by facsimile transmission to Mr Bacon, the Secretary of the Tasmanian Branch of the TWU, the following handwritten letter:

Receipt of your correspondence of 23 July advising of suspension with pay is acknowledged.

It would seem to me that the suspension may well be in contravention of Federal Court Decisions of the 19 April and 16 July 1996, and that some of the other matters contained in that same correspondence may also be contravening the Federal Ind Rel Act and the Registered Rules of the T.W.U.A.

Notwithstanding the above it will now be necessary for you to -

A) Send me an up to date copy of the Registered Rules as requested in writing on the 20 July 1996.

B) Provide me with details, ie dates, documentation names and any other material, in support of the said resolution and other matters contained in your correspondence in order to allow me to prepare my defence against the claim that further actions are pending.

C) Provide further details in relation to what you mean by further actions.

In the event that I do not receive a satisfactory response to the above within seven days prior to any further action, then I may well refuse to co-operate until such time as I do receive a satisfactory response.

That request elicited this response dated 12 August 1996:

It is difficult to determine exactly what further information you require from the hand written correspondence I have received from yourself.

I believe the detail in our correspondence to you of the 23rd July 1996 is self explanatory in as much as:

* You are already aware of the false defamatory accusations you have made.

* You know where and when you held the unauthorised meetings of members during May to July 1996 in Launceston, Hobart and Burnie. To name a few - Qantas, Pioneer, Brambles, Wards Skyroads.

* You know what defamatory false verbal accusations regarding the finances of the Union you made at such meetings against the B.C.O.M., myself and other persons.

* You are also aware of, and have copies of, the material you handed out at such unauthorised meetings and at other places including the Burnie wharf area. See Attachment A.

* As for item 5 of our correspondence of the 23rd July 96 please find enclosed written directives given to you, through myself by the B.C.O.M. which you ignored. See Attachment B and C.

* You are aware of and have copies of the issues contained in items 6 and 7. See Attachment D.

* Item 8 - please find enclosed a copy of your letter to the Tasmanian Transport Association

* Item 9, Ron Cleg - I believe is self explanatory. Please find a copy of page 2 of correspondence to you dated the 8 February 1995.

* Item 10 - please find a copy of your memo to myself.

To conclude I sent to you on 2/08/96 a copy of the registered rules of the Union as per your request and the wages detailed in the Court order.

Should you require more detail or further information do not hesitate to contact me, however to enable us to address in the proper manner any further requests may I suggest that you process such requests through the correct channels, i.e. Jennings Elliott.

Attachment A was a document which Mr Hansch concedes emanated from him which recited:

TWU MEMBERS

DO YOU KNOW THAT

. KEN BACON and CHRIS WILKES both RECEIVED THOUSANDS OF DOLLARS OF YOUR MONEY to which THEY were NOT ENTITLED under the RULES of the union when they took a payment out of the Long Service Leave Fund.

. According to the union's audited accounts KEN BACON received a $25,000 (60%) INCREASE IN SALARY IN 1994.

(The POLITICIANS only received a 40% increase AND what did we ALL have to say about that.)

. MEMBERS dues in TASMANIA are approximately $40 (20%) HIGHER than any other Branch in AUSTRALIA.

. YOUR ELECTED representatives on the B.C.O.M. have allowed THOUSANDS OF DOLLARS in legal costs of YOUR MONEY to be WASTED in an ATTEMPT TO GET RID OF BARRY HANSCH.

(AS A RESULT OF A FEDERAL COURT decision that ATTEMPT FAILED MISERABLY)

. YOUR ELECTED representatives on the B.C.O.M. have now made a further IRRESPONSIBLE decision, which will cost THOUSANDS OF DOLLARS more of YOUR MONEY, IN A FURTHER attempt to SILENCE and GET RID OF BARRY HANSCH by attempting to expel him from the Union.

(The latest attempt like the first attempt will also fail and you the MEMBERS will AGAIN be expected to pick up the tab for the SECOND time in LESS THAN SIX MONTHS)

Should you require further information, details or proof then please do not hesitate to contact BARRY HANSCH on [phone], preferably after 8.00 p.m., but at your convenience.

Attachment B was a memorandum from Mr Bacon to "Chris, Barry, Sean" which contained seven specific directions about the use of union telephones and the need for officers, organizers and staff to attend certain meetings and undergo computer training. Attachment C was a memorandum dated 9 January 1995 from Mr Bacon to "Hobart, Launceston and North West Officials" in these terms:

PLEASE BE ADVISED THAT IN THE FUTURE, ALL OUTWARD CORRESPONDENCE IS TO BE AUTHORISED AND SIGNED BY THE BRANCH SECRETARY.

ALL SITUATIONS WHICH MAY EVENTUATE IN A DISPUTE, I.E. WITHDRAWAL OF LABOUR OR BANS ARE TO BE NOTIFIED TO AND CO-ORDINATED THROUGH THE BRANCH SECRETARY AND B.C.O.M. IF NECESSARY, GIVEN THAT RULE 31 MAY LEAVE US ISOLATED AND SUBJECTED TO EXORBITANT LEGAL COSTS.

IN ORDER TO REDUCE UNNECESSARY COSTS ALL MAINLAND TELEPHONE CALLS ARE TO BE AUTHORISED BY THE BRANCH SECRETARY IF THEY ARE DEEMED NECESSARY.

Attachment D was a typewritten leaflet which recited:

WHAT ARE THE REAL ACHIEVEMENTS OF THE KEN BACON TEAM OVER THE PAST THREE YEARS?

THE ANSWERS TO THE ABOVE QUESTION ARE AS FOLLOWS:

- As a result of BAD ADMINISTRATION and BAD MANAGEMENT the KEN BACON TEAM has managed to lose or waste in excess of $100,000 of YOUR money.

- THE KEN BACON TEAM has been involved in negotiating and finalising ENTERPRISE AGREEMENTS for approximately 15% of Members (NOT 60% AS RECENTLY CLAIMED IN THE MEDIA BY KEN BACON).

WHAT ABOUT THE REMAINING 85% OF MEMBERS WHO HAVE NOT RECEIVED ANY INCREASES AS A RESULT OF ENTERPRISE BARGAINING?

- THE KEN BACON TEAM as a result of the National Campaign initiated by the Federal Committee of Management has been PARTLY SUCCESSFUL in negotiating the 15% increase which is to be paid OVER 2 YEARS for approximately 10% of Members.

WHAT ABOUT THE REMAINING 90% OF MEMBERS WHERE THERE IS NO AGREEMENT FOR THE 15% INCREASE?

THE TRUTH IS THAT AT LEAST 60% OF MEMBERS WILL NEVER SEE ANY INCREASES IN THEIR WAGES AS A RESULT OF ENTERPRISE BARGAINING OR THE 15% NATIONAL CLAIM.

THE KEN BACON TEAM PLANS (such as the introduction of the so called mobile office) are nothing more than a further waste of YOUR money as these proposed changes will simply mean that SERVICES to Members will be further REDUCED and not increased as claimed.

In order to maintain and increase the service to Members it is essential that Branch Officials have the necessary facilities to do so.

INSTEAD OF REDUCING THE FACILITIES AVAILABLE IT WOULD BE FAR BETTER TO REDUCE THE HIGH SALARIES THAT ARE PAID TO BRANCH OFFICIALS.

If and when elected the RANK AND FILE REFORM GROUP will take the necessary steps to ensure that services to Members are maintained and Branch Officials' salaries will be reviewed and REDUCED if necessary in order to maintain and improve the service to Members.

The copy letter from Mr Hansch to the Tasmanian Transport Association, an employers' organization, was dated 4 June 1995 and was in these terms:

I wish to apply for an interview for the position of Executive Director as recently advertised.

I am forty seven years of age and have had approximately 30 years experience and involvement with the road transport industry, 16 years as an owner driver with Brambles and TNT, and 14 years with the Transport Workers Union (Tas Branch).

I have held the position of State Organiser with the T.W.U. for the past eight years and have experience in both State and Federal Commissions.

I believe that I have sufficient knowledge in industrial relations and enterprise bargaining to adequately represent the Association and its members in all respects. I look forward to your response advising that I will be granted an interview for the position as advertised.

It would be appreciated if this application is kept as confidential as possible.

The attachment in relation to Ron Clegg was a copy of page 2 of a closely typed letter to Mr Hansch which included this paragraph:

As for the taxi industry person, I received many complaints from Mr. Warn about your paranoia regarding Ron Clegg and the fact that he was kept in the Hobart office reading newspapers and I distinctly remember having to bring Graham Warn back from Burnie where he was stationed, to Hobart for one day so that he could go and collect money from members because you would not allow Ron Clegg to do it and you were too busy to do it yourself. The taxi industry has not yet been finalised and we will eventually achieve the intended result due to the work instigated by Ron Clegg.

The final document attached to the letter of 12 August 1996 was the following memorandum from Mr Hansch to Mr Bacon on the subject of stationery:

Please find attached memos dated 20 Oct & 21 Dec 94 from Diane to yourself.

As can be seen from the notes on the memo dated 27 Oct the Launceston office has received reminders on at least 6 occasions that the Hobart office was in urgent need of stationery.

Despite the memo of 21st Dec we still have not received the required stationery which makes things very difficult.

I would suggest that if you don't have the time to send it down or if there is some other reason you could at least let us know and we will purchase it elsewhere.

In the event we don't receive the stationery by Monday 16 Jan it will be purchased in Hobart.

On 19 August 1996, a notice was published in each of three regional Tasmanian newspapers, "The Mercury" (the newspaper for the Hobart region), "The Examiner" (the newspaper for the Launceston region) and "The Advocate" (the newspaper for the north-west coast of Tasmania). While the graphics of the notice differed slightly from one newspaper to another, the wording in each was identical. The notice was in the following terms:

That notice was purportedly given pursuant to Rule 51 of the Rules of the TWU which provides as follows for the calling of general meetings of members of a Branch:

The following provisions apply to general meetings of Members enrolled in a Branch:

(a) Ordinary general meetings of Members enrolled in a Branch must be held at least every year at a time and place to be determined by the Branch Committee of Management;

(b) Upon a request in writing by a majority of the members of a Branch Committee of Management, the Branch President or Branch Secretary must call a special general meeting of Members enrolled in the Branch;

(c) A special general meeting of Members enrolled in a Branch may be called at any time by the Branch President or Branch Secretary;

(d) A special general meeting of Members enrolled in a Branch must be called by advertisement in a daily newspaper circulating in the area of the Branch; and

(e) No Member has any rights at a general meeting of Members enrolled in a Branch unless the Member is enrolled in that Branch.

It is clear that the special general meeting of the Tasmanian Branch was called pursuant to Rule 47 in consequence of the suspension of Mr Hansch from his duties as Tasmanian Branch Organizer with effect from 26 July 1996. Rule 47 provides:

(1) A Branch Committee of Management may suspend any person holding a position in the Branch (including a Federal Councillor representing it) if it charges the person with committing an Offence against the Union.

(2) If a person is suspended in accordance with sub-rule (1), a special general meeting of the Members enrolled in the Branch must be called.

(3) If at least 5% of the Financial Members enrolled in the Branch as at the 31 December in the previous year sign a petition, which:

(a) makes specific charges against the Branch Committee of Management as a whole, or any member of the Branch Committee of Management; and

(b) sets out within it sub-rule 94(3);

then the Branch President or Branch Secretary must call a special general meeting of the Members enrolled in the Branch.

(4) (a) A special meeting held in accordance with sub-rules (2) or (3) must consider the actions of the person or persons charged.

(b) The rules of natural justice apply at the special general meeting.

(c) Without limiting paragraph (b), the person or persons charged must be allowed to present a defence against the charges.

(d) In considering whether to uphold the charges, the special general meeting must consider whether it would be beneficial to the Union to remove the person or persons from the position or positions.

(e) If the special general meeting upholds the charges, it may then carry a motion of no confidence in the person or persons charged, if two-thirds of the Financial Members present and voting vote in favour of the motion.

(5) If a motion of no confidence is carried in accordance with sub-rule (4), the chairperson of the special general meeting must declare vacant the position or positions held by the person or persons charged.

(6) Subject to this rule, the provisions of rule 65 apply, in so far as they are applicable, to filling the position or positions declared vacant in accordance with sub-rule (5).

(7) Positions declared vacant in accordance with sub-rule (5) must be filled within 8 weeks.

(8) Where the provisions of rule 65 require an election for the position or positions declared vacant in accordance with sub-rule (5), only Financial Members on the day the position is or positions are declared vacant are eligible to vote in the election.

(9) This rule does not alter the ordinary powers of the Branch Committee of Management to lawfully terminate the contract of employment of a non-elected Officer.

At the meeting on 21 August 1996, a motion was carried by about forty votes to five that Mr Hansch be found guilty as charged and a second motion was carried by about forty votes to seven that his position be declared vacant. Mr Hansch had made several complaints to the effect that he was denied natural justice in the events which led to the passing of those resolutions. He has also contended that none of the offences with which he was charged could amount to "gross misbehaviour" within the meaning of Rule 45 and that, in any event, the meeting of 21 August 1996 was vitiated for lack of a quorum as specified in Rule 52(5). Rule 45 provides:

A person holding any position whatsoever within the Union commits an Offence against the Union if that person is guilty of:

(a) misappropriation of the funds of the Union;

(b) a substantial breach of the Rules;

(c) gross misbehaviour; or

(d) gross neglect of duty.

Rule 52(5) stipulates:

Where a special general meeting of Members has been called by petition in accordance with sub-rule 47(3), quorum is established if:

(a) each Member who signed the petition is present; and

(b) the number of Members present is more than half of the Members enrolled in the Branch.

In my view, Rule 52(5) was not applicable to the general meeting of 21 August 1996 because that was not a meeting called in response to a petition as envisaged by Rule 47(3). Rather, it was a meeting which was required by Rule 47(1) and (2) to be called in consequence of the decision of the Branch Committee of Management to charge Mr Hansch with "Offences against the Union" and to suspend him from office. Accordingly, the meeting was subject to the ordinary quorum requirement for a general meeting of a Branch imposed by Rule 52(4) in these terms:

(a) Subject to sub-rules (5) and (6), at general meetings of Members the number of Members required to form a quorum is in the case of:

(i) the Canberra Branch and the Tasmanian Branch - 15 Members; and

(ii) other Branches - 35 Members.

(b) Only Financial Members may be counted for the purposes of quorum at general meetings of Members.

Counsel for the respondent submitted that there was no requirement in Rule 51(d) to advise the newspaper of the business of the meeting. It was said that an ordinary general meeting did not require notice in a newspaper. The fact that this was a special general meeting gave rise only to one special requirement, namely the provision of notice in a newspaper and there was no requirement in the rules for the notice to indicate the business of a special general meeting which it convened.

I do not accept that as a correct interpretation of Rule 51(d). If the meeting of 21 August 1996 had, instead, been an ordinary general meeting, there would have been no requirement to indicate the business of the meeting in the notice and the meeting would be governed by Rule 51(a). However, it seems to me that a special general meeting is a meeting convened to deal with a special topic or matter and that in order to be effective the notice has to indicate, at least in some general way, what the topic or matter is. The common law has long required a notice of a meeting to state not only the date, time and place of a meeting but also the business to be discussed. In Campbell v Higgins (1957) 3 FLR 317, the Commonwealth Industrial Court in a joint judgment held at 327:

By analogy notice by advertisement alone in the press could be sufficient for an ordinary or a special meeting. We are of the opinion that, where there is a union with a large metropolitan membership and with sub-branches established in country towns and in a neighbouring state, notice by advertisement in the press of any meeting, whether ordinary or special, must be advertisement which provides sufficient time for members to attend such meeting if they so desire and in newspapers which they might be expected to see. The terms of the notice of a special meeting should contain sufficient information as to the business to be conducted thereat.

We are well aware of the practical difficulties attaching to a problem of this nature and we appreciate the impossibility, where there is a large and widely dispersed membership, of giving each and every individual member personal notice of ordinary meetings, except perhaps per medium of the pence card system. However there is no doubt that in calling a special meeting there is a duty to use such means as are likely to come to the notice of members in sufficient time to enable them to attend, if they so desire.

And at 328:

In general the reasons why such notice should be given are so obvious as not to need specification. The basis of the necessity however is the rights of the individual member in the first place and then the requirements of democratic government or management of such an organization. Without it, a small management committee could, between elections, implement and control the policy of the organization of ten thousand members without the rank and file having a voice in matters of major importance. If an organization establishes sub-branches in distant places and treats sub-branch members as members of the parent body for some purposes it cannot disregard the rights of its members outside the metropolitan area.

Authorities related to the general law applicable to notice of business at a meeting of a corporation were collected by Kelly SPJ in Ephstathis v The Greek Orthodox Community of St George (1988) 13 ACLR 691 where it was observed, at 693:

The basic rule applicable to meetings is expressed in Halsbury's Laws of England, 4th ed, vol 9, para 1296, in these words: "Where notice is given that particular business will be transacted at a meeting, no other business can be embarked upon at that meeting unless the whole body corporate is present and consents." The rationale of the rule is that the purpose of the notice is to enable persons receiving it to know what is proposed to be done at the meeting so that they can make up their minds whether or not to attend. This was explained by Joske J in McLure v Mitchell (1974) 6 ALR 471 at 494, in a passage which I would respectfully adopt:

"If the members of a corporation are summoned to appear for one particular purpose they cannot proceed to any other matter without the unanimous consent of the whole body: (Machell v Nevinson (1724) 103 ER 936). Thus all the shareholders of a company must be present and agree to the waiving of formalities: (Re Oxted Motor Co [1921] 3 KB 32; [1921] All ER Rep 646; Re Express Engineering Works [1920] 1 Ch 466; Re Sanders Ltd (1932) 49 WN (NSW) 220). The purpose of a notice of meeting is to enable persons to know what is proposed to be done at the meeting so that they can make up their minds whether or not to attend. The notice should be drafted so that ordinary minds can fairly understand its meaning. It should not be a tricky notice artfully framed: Henderson v Bank of Australasia (1890) 45 Ch D 330 at 337"...

In Yong v Australian Chinese Forum of New South Wales (NSW Supreme Court, unreported, 7 June 1996) Bryson J, after reproducing the extract which I have just quoted, went on:

Underlying these principles is the simple need for effectiveness of the meetings, which cannot be achieved unless those who attend have a reasonable opportunity in advance to know what they are to deal with, consider how they should deal with it and indeed consider whether they need to attend and participate at all. This has special force where their own interests are involved in some way, as instanced by this case. The source of these general rules, in my understanding, is the implication in its constitution of a requirement that proceedings will be conducted in a reasonably fair and effective manner...

...

The importance attached by courts to fair procedures for expulsions and similar decisions in organisations of many kinds is well illustrated by a passage in the judgment of Megarry J in John v Rees [1970] 1 Ch 345 at 398 to 400 in which his Lordship set out lengthy passages from his decision in Fountaine v Chesterton, which is not fully reported, and included the following passage at 399-400:

"It is trite law that the rules of an unincorporated association form a contract between all the members of that association. It is, indeed, a somewhat special form of contract; but subject to that, what I am required to do is to construe the term of a contract. Where the terms in issue deal with the exercise of a power of peremptory suspension or termination of the rights of one of the parties to such a contract, then I think that the common expectation of mankind would be that the power would be exercised only in accordance with the principles of natural justice unless the contrary is made plain. This expectation rests upon high and ancient authority."

It is also noted in Joske's Law and Procedure at Meetings in Australia, (8th Ed) p 21:

There should be an adequate and candid description of the business to be transacted. Thus, when expulsion or suspension of a person is to be discussed at a special meeting this should clearly appear from the notice.

It seems to me that the common law clearly requires the notice of a special meeting to provide information as to the business of the meeting. Failure to provide adequate information in the notice will result in the meeting not being properly convened and consequently all decisions taken will be void and of no effect. In Higgins v Nicol (1971) 18 FLR 343, a case not dissimilar to the present, Spicer CJ concluded at 351:

In so far as the convening of this conference arose from a request of the Victorian branch the respondents rely upon resolutions carried at a so-called meeting of that branch held on 26th November, 1970. The only notification of this meeting was two newspaper advertisements published on the day of the meeting. This in my view was insufficient notice and therefore the proceedings at the Victorian meeting were null and void (Campbell v Higgins (1957) 3 FLR 317).

In the present case the notice placed in three regional daily newspapers gave no indication whatever of the business to be discussed at the special meeting. Consequently, persons reading the notice would have been unable to make any judgment about whether the meeting was of concern to them or whether they should attend at all.

At the trial it seems to have been accepted that the only notice given to Mr Hansch of the special general meeting was by means of the newspaper advertisement. It is an elementary requirement of procedural fairness that persons who are entitled to be heard are also entitled to prior notice. Such notice should be reasonable in the sense of providing the recipient with adequate time and information to prepare and present his or her case effectively, and arrange to attend the hearing or make written submissions.

As Anderson J noted in R v Small Claims Tribunal; Ex p Cameron [1976] VR 427, at 432:

The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice.

In this case the manifest defects in the notice are not cured by showing that Mr Hansch was aware of allegations of misconduct against him. Whether or not he was aware of the allegations, the threshold issue is whether he had knowledge of the special general meeting in good time and that such a meeting was to be in the nature of a disciplinary hearing of allegations of misconduct on his part. The notice as it appeared in the newspapers would not have acquainted him with the business of the meeting.

Moreover, as the notice did not appear in newspapers until 19 August 1996, it cannot be said that Mr Hansch was given reasonable notice of a meeting to be held in Launceston on the next day but one. Counsel for the respondent has submitted that in the absence of any complaint from Mr Hansch, the newspaper advertisements on 19 August constituted reasonable notice. The critical question is whether the notice has complied with the requirement arising by implication from the Rules that there be a reasonable period between the publication of the notice and the date of the meeting which it advertised. In the absence of evidence of express waiver by Mr Hansch of short notice, the manifest defects in the notice cannot be cured by a failure by him to complain, at the meeting or otherwise, about those defects.

Annexured to Mr Bacon's affidavit sworn 27 March 1997 is a copy of an undated letter, which Mr Bacon deposes was sent to all Union members. This letter purported to inform members of the special general meeting on 21 August 1996 and that Mr Hansch's conduct would be discussed at this meeting. Counsel for the respondents accepted that this letter, while being of some importance as suggesting that members became informed of the special general meeting, was not very helpful as there was no indication of when the letter was sent. It seems to me that counsel is correct in this regard. Not only is the letter undated but no evidence has been tendered indicating when the letter would have been received by Mr Hansch or any other members of the TWU. In the words of the respondent's counsel, "(the Court)...is left with the advertisements". In any event, even if that letter had been sent to all members and to Mr Hansch within a reasonable time of the meeting, it does not alter the fact that the notice of the meeting advertised in accordance with Rule 51(d) did not comply with the Rule.

For the reasons given, I find that there has been a failure in this case to provide adequate information in the advertised notice concerning the business of the special general meeting. Furthermore, Mr Hansch has not been accorded procedural fairness in the manner and form of notice given to him of a disciplinary meeting at which he faced removal from office for gross misconduct. In consequence, the meeting has not been properly convened in accordance with the Rules of the TWU. In the light of this conclusion, it is unnecessary to consider the submissions of counsel as to provision of particulars or the conduct of the meeting itself. The rule nisi will be made absolute substantially in the terms sought.

Submissions have also been made on a motion on notice filed on behalf of Mr Hansch on 25 March 1997. That motion sought orders that the firstnamed respondent, the TWU, observe and perform the Rules of the Union by:

1. Paying to the applicant the sum of $19,774.94 for his wages net of income tax, employee's superannuation contribution and child support payments.

2. Paying to the Child Support Agency the sum of $1,317.07.

3. Paying to the Australian Taxation Office the sum of $10.354.45.

4. Paying to the Transport Workers Union Superannuation Fund as the employee's contribution the sum of $1,583.56

5. Paying to the Transport Workers Union Superannuation Fund as the employer's contribution the sum of $4,765.68

6. Be restrained from asserting that the applicant took long service leave from the period commencing on the 26th September 1995 and expiring on the 19th April 1996.

7. That there be liberty to apply in respect of any consequential orders sought by any party.

Counsel confined their submissions to paragraph 6 of the proposed orders which raises the question of whether the TWU can assert that Mr Hansch took long service leave from 26 September 1995 to 19 April 1996.

It will be recalled that in earlier reasons for judgment published on 12 February 1997, I examined the question of during what period, if any, between 13 July 1995 and 19 April 1996 Mr Hansch had been ready and willing to perform his contract of employment as Tasmanian Branch Organizer. I then said:

I have already indicated in my earlier reasons that Mr Hansch cannot demonstrate the requisite readiness and willingness during the period when he was asserting, mistakenly as a matter of law, that he was "on" long service leave. Although the correspondence between his solicitor and the TWU on that matter is equivocal, I consider that his acceptance that he had not been able unilaterally to take long service leave was not made clear on behalf of Mr Hansch until 26 September 1995 when an application was made for an interlocutory order that he be permitted to return to work as Branch Organizer (Hobart) pending the hearing and determination of his substantive application. That application was opposed by the respondents, including the TWU, apparently because they saw good prospects of success for their contention that the applicant had earlier abandoned his employment. In the circumstances, the application for interlocutory relief was refused.

It follows, I consider, that the respondents were on notice, at least from 26 September 1995, that Mr Hansch was asserting his readiness and willingness to discharge the duties of his office and would forfeit his entitlement to remuneration if he did not take up any opportunity to return to work which might be afforded to him on behalf of the TWU. In those circumstances, it follows from the conclusions reached in my earlier reasons for judgment that Mr Hansch is entitled to receive remuneration at the rate specified in his contract of employment from 26 September 1995 to 19 April 1996.

Then follows the paragraph reproduced at p 3 above.

The Rules of the TWU as in force when I last considered the question of Mr Hansch's long service leave in reasons for judgment published on 19 April 1996 included Rule 59(e) and (g)(i) which provided:

59(e) An employee of the Union shall after each ten years service be granted three months long service leave on full pay.

Such long service leave may be granted in full or in part at any time after becoming due. Any time not granted in accordance with the foregoing shall be paid for upon termination of engagement of an employee as a retiring allowance at the full pay he was in receipt of at the date of such termination of engagement.

In the event of the death of an employee (including an officer) referred to in this Rule, all long service leave payment due to such employee shall be paid to the employee's dependant or to such person or persons as shall be determined by the Committee of Management concerned.

Where an employee, whether he had previously qualified for long service leave in accordance with the foregoing or not, has completed a period of five years or more but less than ten years' service (but not including any period in respect of which he has already received long service leave) and the service of that employee is terminated for any reason, he shall be paid pro rata for such period.

...

(g) (i) Should any dispute arise under this rule the matter shall be determined by the Federal Council, whose decision shall be final and conclusive.

The current Rules of the TWU contain no express reference to long service leave and it was doubtless in recognition of that fact that the Branch Committee of Management of the Tasmanian Branch on 31 August 1996 carried the following resolution:

All persons employed by the branch who have their employment conditions and remuneration determined by the Branch Committee of Management by way of rule 32 shall be entitled to the following:

LONG SERVICE LEAVE

* Thirteen weeks leave on the completion of ten years continuous employment to be calculated at 1.3 weeks per year of service multiplied by the actual weekly wage being received at the time the leave is granted.

* Such Long Service Leave may be granted in full or in part at any time after becoming due (subject to the Branch Secretary receiving adequate notice, ie six months, in writing of the employee's intention to take Long Service Leave and branch operational needs, such requests for Long Service Leave will not be unreasonably withheld). Any time not granted shall be paid for upon termination of engagement of an employee as a retiring allowance at the actual weekly wage being received at the time of termination.

(Weekly wage shall be the wage determined by the Branch Committee of Management. The wage calculation will not include the incidental allowance or be reduced by the employee's right to salary sacrifice.)

* In the event of the death of the person entitled to the Long Service Leave all accruements due shall be paid to the deceased person's dependant or to such person or persons as shall be determined by the Branch Committee of Management concerned.

* Where an employee has completed a period of five years or more but less than ten years service (but not including any period in respect of which they have already received Long Service Leave) and the service of that employee is terminated for any reason, other than an offence against the union as determined by rule 45, they shall be paid pro-rata for such period calculated to the nearest completed day.

* Payment in lieu of Long Service Leave is permitted only where this is mutually agreed between the Branch Secretary and the employee.

* All disputes arising over Long Service Leave provisions will be dealt with by the Branch Committee of Management by way of the aggrieved employee requesting the right in writing to present their position to a special meeting of the Branch Committee of Management personally or by way of a nominated representative (the rules of natural justice shall apply at such a meeting).

* Persons employed by the branch who have their wages and conditions determined by a Certified State or A.I.R.C. Award / Enterprise Agreement shall be covered by the provisions of the state Long Service Leave Act 1976.

In my view, the regime for the administration of long service leave established by that resolution does not differ in any material respect from that which I examined in the reasons for judgment of 19 April 1996. I do not consider that the expression in parenthesis in the second paragraph of the resolution making the obligation not unreasonably to withhold the grant of long service leave "subject to the Branch Secretary receiving adequate notice" qualifies the discretion of the Branch Committee of Management to determine when, and in what period or periods, long service leave may be taken. However, that does not entail that the Branch Committee of Management has any discretion or power retrospectively to deem an employee to have taken long service leave during a period in which he or she was working, available for work or otherwise entitled to remuneration, e.g. whilst on annual leave. Thus, any purported "grant" of long service leave to Mr Hansch in respect of the period from 26 September 1995 to 19 April 1996 was ultra vires the Branch Committee of Management and of no effect. I shall make a declaration accordingly in proceedings numbered TI 1264 of 1995. On the assumption that the parties will abide that declaration in calculating Mr Hansch's entitlement to long service leave or payment in lieu thereof, it should be unnecessary to make any further order on the motion on notice filed on 25 March 1997.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:

TI 1264/95 and TI 1031/96
Counsel for the Applicant:	Mr John Green
Solicitor for the Applicant:	Mr John Green
Counsel for the Respondents:	Mr K E Read
Solicitor for the Respondents:	Jennings Elliott
Date of Hearing - TI 1264/95:	2 and 3 April 1997
Date of Hearing - TI 1031/96:	2 and 3 April 1997
Date of Judgment:	25 May 1998