Collison v Hewston & ors [2001] NSWIRComm 55 | Case summary

Interim orders are sought to prevent the State Council constituted as set out above, from electing any State officials, or transacting any controversial business prior to the Commission determining whether the rules under which such elections are to be held or such business is to be conducted, are void. If such orders are not granted, irreparable or irreversible harm may be done to the democratic rights of the members of the Union and persons wrongly elected for a four year term. 8. Interim relief is also sought for the following reasons: (i) Pursuant to the rules of the Australian Workers' Union registered under the Workplace Relations Act 1996, the Applicant has been charged by the National Secretary, Mr Terry Muscat, with misappropriation of the finances of the Union. The Applicant has been required to attend a meeting of the National Executive of the union on 23 February, 2001 to answer the charges and to show cause why he should not be dismissed from office. (ii) The Applicant is innocent of the charges and believes that they are an attempt to discredit him in advance of forthcoming union elections. iii) On 11 January 2001, Mr Andy Gillespie, the Branch Secretary of the Port Kembla, South Costa (sic) and Southern Highlands Branch of the Australian Workers' Union, New South Wales wrote to the Applicant seeking a meeting of the State Council to discuss, inter alia, "The most serious allegations made against the State Secretary, regarding the improper use Union funds". iv) On 11 January, 2001, Kevin Maher, Secretary of the Newcastle, Central Coast and Northern Regions Branch of the Australian Workers' Union, New South Wales and the State President, also wrote to the Applicant seeking a meeting of the State Council to discuss inter alia a matter the subject of one of the charges brought against Mr Collison by Mr Muscat. (v) On 15 January, 2001, Mr Maher wrote to the Applicant again stating inter alia that pursuant to a request by State Council members Andrew Whiley, Andy Gillespie, Mark Stoker, Frank Hewston, John Gorrie, and Jeff Byrne (who are all representatives on the State Council of branches other than the Greater New South Wales Branch) there was to be a meeting of the State Council on 15 February, 2001 at 10.00 a.m. to discuss a matter the subject of one of the charges brought against Mr Collison by Mr Muscat. (vi) Rule 30(2) permits meetings of the State Council to be called by any four members of it upon at least seven (7) days notice. (vii) The Applicant has reasonable cause to believe that the State Council meeting to be held on 15 February, 2001 will carry, on the votes of representatives from branches other than the Greater New South Wales Branch, resolutions adverse to him in an attempt to discredit him in advance of the forthcoming National Executive meetings and union elections. (viii) If interim orders are not granted, then the State Council may carry resolutions on the basis of an unrepresentative and undemocratic majority which will irreparably damage the Applicant's reputation, prejudice his chances of a fair hearing at the National Executive meeting on 23 February, 2001, and prejudice his prospects of success at the forthcoming union elections. 4 The matter initially came before me on 13 February 2001 when I intended to hear the application in respect of the interim order. However, I was informed by Mr A A Hatcher of counsel for the applicant that it had been agreed with the respondents that the meeting of State Council scheduled for 15 February 2001 would not occur until after the National Executive meeting to be held on 23 February 2001. Accordingly, the application for interim relief was not pressed. 5 The matter came back before me on 28 February 2001 when I was informed by Mr Hatcher that the charges against the applicant had been dismissed by the national executive of the AWU. Nevertheless, the applicant remained concerned that the charges might in some way be revived at the State level and so Mr Hatcher pressed the application for interim relief. I set 9 April 2001 for hearing the application for interim relief and 18 May and 29 June 2001 for hearing the application for final relief. 6 On 21 March a request was made by the applicant for an urgent hearing of its claim for interim relief and the matter was set down for hearing on 23 March 2001. On that day I was informed by Mr Hatcher that the applicant had been advised by members of the State Council that a meeting of that Council would take place on 28 March and that the agenda for that meeting was to be: · Election of Officers · Construction Industry coordination · The formation of a single State branch · State Government Department membership issues · The allegations of rent being collected from the old Kent Street Building by Tania Gazibegovic · Alteration of State Rules · General Business. 7 In an affidavit sworn on 21 March the applicant deposed that: 8. I am concerned that if a State Council Meeting occurs, it may, using its existing structure, pass rule changes which vary the geographical boundaries of the Branches and pre-empt the hearing of my challenge to the current rules. This could lead to a situation where there could be a significant transfer of membership from the Greater New South Wales Branch to other Branches. 9. Furthermore, nominations for elected positions in the Australian Workers' Union, Greater New South Wales Branch open on 26 March, 2001. I expect to be opposed as Secretary. I am concerned that the proposal to convene a State Council is a further attempt to resurrect charges against me which have already been dismissed on two separate occasions and to embarrass me in the election campaign. I annex hereto and mark with the letter "D" copy of letter from the Australian Electoral Commission setting out the timetable for the elections. 10. On 21 March, 2001, I received a letter from Mr C. Bosworth, who I expect to be my opponent in the election for the position of Secretary of the Australian Workers' Union, Greater New South Wales Branch. I say that when this letter is read with the agenda for the proposed State Council Meeting, it is clear that it is intended to raise allegations that have already been considered by the National Executive. In respect of those allegations, my explanation was accepted by the National Executive. Annexed hereto and marked with the letter "E" is a copy of letter from Mr C. Bosworth dated 31 March, 2001. 8 The timetable for the elections referred to in the applicant's affidavit was as follows: · Nominations open 26 March 2001 · Nominations close 9 April 2001 at 12 noon · Ballot opens 28 May 2001 · Ballot closes 21 June 2001 9 The charges made against the applicant by Mr Bosworth involved allegations of breach of the Union's Rules and gross misbehaviour. The particulars of the five charges referred to: (i) a failure by the applicant to cause to be kept a correct account of all monies received and expended on behalf of the Union, "in particular you received moneys or caused to have such moneys received from a tenant of the building in Kent Street Sydney then occupied by the Union…., such money received in cash and failed to cause to be kept a correct account of such moneys received; (ii) a failure by the applicant to cause to be kept a correct account of the expenditure of such moneys received from a tenant of part of the Kent Street property; (iii) a failure by the applicant to assist the Auditors when auditing the accounts of the Union by not revealing to the auditors the existence of cash, it having been received as rent for part of the Kent Street property in 1997; (iv) a failure by the applicant to pay to the credit of the Union on account all moneys received by the State Council, in particular money received in cash as rent for part of the Kent Street property in 1997; (v) the removal by the applicant of property of the Union in 1999 in particular a safe belonging to the Union without the permission of the State Council and the keeping of such property. 10 In his letter to the applicant, Mr Bosworth requested that the applicant forward "these reports of breaches of the Rules or gross misbehaviour to the State Council of the Union for determination." 11 In summary then, the position that the applicant believed he found himself in was that, notwithstanding charges against him had been dismissed by the national executive, fresh charges had been laid at the State level, which were only different in form and not in substance, to the charges dismissed at the federal level. Moreover, the charges were brought on the eve of an election campaign by another officer of the Union who was to contest the position of Secretary of the Greater New South Wales Branch of the Union. The applicant was concerned that resolutions would be passed at the Council meeting on 28 March designed to embarrass him, damage his reputation and prejudice his chances for election both as Secretary of the Union and Secretary of the Greater New South Wales Branch. The agenda for the Council meeting also raised issues relating to the structure of the Union and the applicant was concerned that the meeting - which he contended would be constituted in an undemocratic and unrepresentative way - might pass rule changes that varied geographic boundaries of the Branches and pre-empted the hearing of the applicant's challenge to the current Rules of the Union. 12 Mr J P Phillips of counsel appeared for eight members of the State Council namely, Messrs Hewston, Maher, Bosworth, Gillespie, Gorrie, Stoker, Whiley and Byrne. Mr Phillips opposed the granting of the interim order. Mr Phillips ' position was that the Court had no jurisdiction to grant the interim order sought. If the Court found it did have jurisdiction, Mr Phillips submitted that there was no proper basis for making an interim order. 13 I explored with the respondents the prospect of postponing the Council meeting by consent until after 9 April when the matter had been set down for hearing the application for interim relief. However, the respondents felt that it was necessary to proceed with the meeting on 28 March. Consequently, I proceeded to hear the parties, both as to jurisdiction and the merits of the claim for interim relief. 14 On the question of jurisdiction, Mr Phillips submitted that what the applicant was seeking was equitable relief by way of an injunction. He submitted that s 247(7) was not a source of power to grant injunctive relief. Mr Phillips contended that the interim order referred to in s 247(7) was not an order by which injunctive relief could be granted. Such an order was limited to "any matter raised in the proceedings" and this did not include an order for interlocutory relief. Mr Phillips submitted that the Court's express powers were defined in ss 151-154 of the Act and did not include power to grant injunctive relief in the form of a restraining order; s 247(7) could not be interpreted to expand the Court's powers beyond those expressed in ss 151-154 of the Act. 15 Mr Phillips acknowledged that the Court possessed an implied power to grant injunctive relief but such power was circumscribed to the extent that such orders could only be made to prevent the frustration of the Commission's due process: Darvall v NZI Securities Australia Limited (1990) 39 IR 215. In other words, the power of the Commission in Court Session to order injunctive relief was limited to orders in the nature of 'Mareva' orders and did not extend to the making of orders in the nature of restraining orders other than orders designed to prevent the frustration of the Court's process. Mr Phillips referred to a line of authority relating to s 106 of the Act and its predecessors to support his contention regarding the limits on the Court's power to grant injunctive relief. These cases include: Darvall; Teletech International Pty Ltd v Medical Benefits Fund of Australia Ltd , (No.1) (unreported, Maidment J, IRC98/5150 28 September 1998 ); Teletech International Pty Ltd v Medical Benefits Fund of Australia Ltd (No.2) (unreported; Maidment J, IRC98/5150, 30 September 1998) Dickins v Gibb Nominee Services Pty Ltd (1991) 43 IR 276 ; Hawkins v Sydney Fish Market Pty Ltd [2000] NSWIRComm 209 ; Gibson v Western Sydney Area Health Service [2000] NSWIRComm 13 ; Elliott v Royal Motor Yacht Club of NSW, Newcastle Branch (1992) 42 IR 35; Howitt v Retec Ltd (No. 2) (1995) 60 IR 93; Bowker v Prophecy Technologies Pty Ltd (unreported, Marks J, IRC99/291, 26 May 1999); Aslanis v Brambles Australia Ltd (1997) 82 IR 220; Maharajah v 7 Eleven Stores Pty Ltd (unreported, IRC1150/97, Peterson J, 4 April 1997 ) Wheeler v Selbon Pty Ltd t/as Parklands Nursery (1984) 1 NSWLR 555; (1984) 7 IR 383; Jacoby and ors v Boral Transport Ltd and ors (unreported CT 1101 of 1993, Peterson J, 7 May 1993); Hodges v Streets Ice Cream Pty Ltd (1983) 5 IR 381 ; Maiden EJ and ors v New Zealand Natural Pty Ltd and ors (unreported, Hungerford J, IRC109/97, 20 June 1997) ; Transport Workers' Union of Australia NSW Branch v Boral Resources (NSW) Pty Ltd (unreported, Peterson J, 3 December 1992 ); Quirk v Royal Botanic Gardens & Domain Trust (unreported, Schmidt J, CT1189/94, 30 September 1994); Cameron v Unilever Australia Ltd (unreported, Cahill J, Vice President, 3 June 1997); V Shop Pty Ltd v RSL COM Personal Communications Pty Limited [2001] NSWIRComm 42. 16 On the question of jurisdiction, Mr Hatcher for the applicant submitted that ss 151-154 were not the sole source of the Court's power. Section 153, for example, cross referenced other powers in the Act. Further, it could not be said that s 106, for example, was not a head of power. Mr Hatcher submitted that the cases referred to by the respondents regarding limits on the implied power of the Court to grant injunctive relief were not on point because they all dealt with s 106, which did not provide for the making of interim orders whereas s 247 did. Mr Hatcher contended that s 247(7) should not be read down in the manner proposed by Mr Phillips and that on its face s 247(7) enabled the Court to make orders providing injunctive relief. Mr Hatcher further submitted that even if he were wrong about this it had been established, as Mr Phillips contended, that the Court did possess an implied power, albeit limited, to grant injunctive relief and that this was a case where it was appropriate to exercise that power. Mr Hatcher submitted that if the Council meeting were to proceed on 28 March there was the likelihood that resolutions would be passed by an undemocratic body, damaging to the applicant and likely to prejudice him in the forthcoming elections. If, as a consequence of this, the applicant were to lose the election, the applicant would have been irreparably damaged. Moreover, if the undemocratic and unrepresentative meeting were to go ahead, there was a likelihood that the meeting would make Rule changes that varied geographic boundaries leading to a significant transfer of membership from the Greater New South Wales Branch of which the applicant is Secretary, to other Branches of the Union. In these circumstances, if the meeting were to go ahead on 28 March and the Rule changes were to be made, the Court's processes would be frustrated because the changes would have been made by an undemocratic and unrepresentative body of which the applicant complains in his application pursuant to s 247 of the Act. 17 I must say I see no reason for reading s 247(7) down. The order which I am requested to make is interim in nature, that is, an order that restrains the respondents from conducting any business by or of the State Council unless it is by unanimous vote and that such order would apply until further order of the Court. The power in s 247(7) is granted "in relation to any matter raised in proceedings". That means, in my opinion, if the matter has a relevant connection with the order in question, that is sufficient to ground jurisdiction. The order sought is clearly in relation to any matter raised in the proceedings. 18 Insofar as I can ascertain there are no cases going to the Court's power to grant injunctive relief under s 247(7). In the event that I am wrong in my view that s 247(7) provides the Court with express power to grant injunctive relief, then I rely on what I consider to be an implied power underpinning s 247(7). 19 Other provisions of the Act support the existence of an implied power under s 247(7) to grant interim relief by way of an injunction. These are as follows: 1. Section 3(a) of the Act provides that it is an object of the Act to "provide a framework for the conduct of industrial relations that is fair and just". 2. Section 163(1)(c) of the Act requires that the Court "act according to equity, good conscience and the substantial merits of the case": see Bowker ; Beard v Caltex Oil (Aust) Pty Ltd [1979] AR (NSW) 601. 20 I acknowledge that there is a line of cases relating to s 106 of the Act and its predecessors, to which I have earlier referred, which recognise the existence of an implied power in the Court to grant interlocutory relief. However, most of these cases (not all) hold that the Court's interlocutory power is limited to the grant of relief in circumstances where it is necessary to prevent the frustration of the "Commission's due process" (see Darvall; TWU v Boral ) or where the Court is satisfied that an 'asset preservation order' is necessary so as to ensure that any money order made by the Court will be effective (see: Wheeler; Dickins ) or where the Court is satisfied that a monetary order would not be "an effective order" by way of final relief (see: Maharajah ) and does not extend to the grant of interlocutory relief in the form of a restraining order: Darvall. This view has become the accepted authority: see for example, Gibson ; V Shop. 21 These cases, of course, confine their consideration to circumstances arising under s 106 of the Act or its predecessors and as Hungerford J noted in Darvall, s 88F did not explicitly state a power to make an interlocutory order or award. Hungerford J went on to say in Darvall at 41: In my view then, whether the Commission has power to grant interlocutory relief, such is sought in the present case, will depend upon the construction of s.88F and in the context in which it appears in the Industrial Arbitration Act as to whether the particular interlocutory relief is necessary for any exercise of the jurisdiction otherwise conferred by the section in the sense of being incidental thereto, or either express or implied by the language used. 22 Section 247(7) of the Act on the other hand, enables the Court to "make such interim orders as it considers appropriate in relation to any matter raised in the proceedings." 23 If it can be said, however, that s 247(7) is not an express power to grant injunctive relief, the authorities relating to s 106 become relevant and I need to deal with them. 24 I say firstly, that I can find no binding authority to indicate that there is an absence of implied power to grant the relief sought in this matter. In Dickins , the Full Bench provided the foundation for the Court's conclusion that as a superior court of record, albeit limited by statute, it was empowered to grant, in appropriate proceedings, a Mareva order. It is to be noted that the Full Bench was only required to rule on whether the Court had the implied power to grant interlocutory relief by way of grant of a Mareva order and not whether such an order was the limit of the Court's power to provide interlocutory relief. 25 The Industrial Relations Act 1996 does not confer an express power on the Commission in Court Session to grant interim injunctions, but it seems to me that it has an implied power to do so by virtue of it being a superior court of record: s 152 of the Act. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623-624, Deane J, who gave the leading judgment, indicated his agreement with Bowen CJ who in the proceedings below ((1986) 69 ALR 92 at 97) said: In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory Court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdictional powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power." 26 Hungerford J, in Darvall expressed a similar view to that expressed in Jackson by adopting what was said by the Full Court of the Federal Court of Australia ( Bowen CJ, Northrop and Toohey JJ) in Parsons v Martin (1984) 5 FCR 235; 58 ALR 395 at 240-241; 401 : In our opinion a Court exercising jurisdiction conferred by statute has power expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of the opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. 27 In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, Kirby J at 423, cited with approval the following passage of Gaudron J in Jackson at 639: …..In Connelly v Director of Public Prosecutions , Lord Morris held that: 'There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction'; and this power has not, traditionally, been restricted to defined and closed categories: Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335 but may be exercised where the administration of justice demands it: Cocker v Tempest; Ferris v Lambton (1905) 22 WN (NSW) 56 at 57. 28 The High Court in Cardile at 400-401 adopted the following statement from Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33: The general principle which informs the exercise of the power to grant interlocutory relief is that the Court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked: see Tait v The Queen (1962) 108 CLR 620. 29 Section 23 of the Federal Court of Australia Act 1976 expressly bestows powers on the Federal Court "to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of writs of such kinds, as the Court thinks appropriate." In Jackson , Deane J said at 623: Indeed, even in the absence of the provisions of s.23, the Federal Court would have possessed power to make such orders in relation to matters properly before it, as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters. 30 If, as a superior court of record the Federal Court has power, even absent s 23, to make interlocutory orders not confined to orders in the nature of Mareva orders, I can see no relevant basis for distinguishing the Commission in Court Session from the Federal Court in this respect. 31 Nevertheless, in Jacoby , Peterson J expressed the view that the purposes for which interlocutory relief can be granted by the Court may be limited by those identified in par 20 above. In Gibson his Honour described the circumstances in which the Court has jurisdiction to grant interlocutory relief as "quite circumscribed" (par 15). In Elliot, however, Watson J said at 36: What is sought, simply put, is an interlocutory order under s 88F. It is unnecessary to discuss as a matter of power the Mareva injunction cases which turn on the frustration of any proceedings before the Commission if such an order were not made. This, in my view is a different situation where what the applicant is seeking is an interim order under s 88F(1) varying the contract pending determination of the application finally. In my view there is jurisdiction to make such an interim order if a sufficient case is made out so that a preliminary finding can be made that there is unfairness - whereby the Commission is satisfied that there is sufficient foundation for some interim order to be made. 32 Darvall and the line of cases which follow it in relation to s 106 (and its predecessors), recognise the Court's status and constitution as a superior court of record. The cases rely on this as a foundation for the Court's implied power to prevent the frustration of its processes but do not accept that status as the foundation for a broader implied power to grant interlocutory relief. 33 In Darvall , Hungerford J held that: Thus jurisdiction to make an order under s 88F can only arise when one or more of the grounds of the relief contained in the section are made out; then that can only be, in my view, as part of the proceedings for final relief and not in any interlocutory sense." 34 The making of an interlocutory order to maintain the status quo, for example, until a final determination has been made only involves a preliminary consideration of the issues, that is, whether there is a serious issue to be tried and the balance of convenience. Notwithstanding the fact that a statute requires relevant findings to be made before final orders can be made, this would not, in my opinion and with the greatest respect to Hungerford J, rule out the existence of an implied power to grant interlocutory relief whenever the administration of justice demanded it: see Gaudron J in Jackson at 639 as approved by Kirby J in Cardile at 423 . 35 If the Court's power to grant interlocutory relief was confined to the making of interlocutory orders "in the protection of its process and so as to ensure that any final orders made may not be frustrated or put to naught", it would mean that the Court's powers in this respect would be limited to the making of Mareva-type orders. This would appear to be in conflict with Jackson . It would also appear to be at odds with what Kirby J said in Cardile at 423-424: This is the general principle that statutory provisions, conferring jurisdiction or power on a court, are not construed as subject to any limitation which is not strictly required by their language and purpose. Where a court is endowed with a particular jurisdiction, it enjoys the powers necessary to enable it to act effectively within that jurisdiction. Its powers are not ordinarily construed as restricted to defined or closed categories. This is because of the infinite variety of circumstances which may come before a court and require "appropriate orders". This well established general principle provides a warning against attempts by judges to state closed categories derived from the history of Chancery courts or from recent court decisions in their jurisdiction. To do this would amount to an impermissible gloss on the broad language by which the parliament of Australia has conferred the power. It would, moreover, shackle the implications which flow from the very nature of the body receiving the power. 36 In Quirk, the applicant took s 275 proceedings seeking a three year extension of his contract with the respondent and by way of interim relief sought to restrain the respondent from granting any right or licence to any person other than the applicant to conduct a 'people mover' service within the gardens and from terminating the applicant until further order. In concluding she had no power to grant interlocutory relief and after referring to Darvall, Schmidt J said: It is apparent that there has been a consistent view taken that either expressly or by implication, there is no general power to grant interlocutory relief under s 275 of the Act (or under s 88F of the 1940 Act). It seems to me that it will be a most unusual case where, on an untested affidavit and without hearing the evidence of the respondent, the court will conclude that the requirements of s 275 have been satisfied and on that basis grant interlocutory relief. Questions of natural justice are likely to preclude such a result. It will also not infrequently be the case that the court will conclude that if a party is not restrained from taking steps otherwise freely open to it, the proceedings brought before the court under s 275 of the Act will be frustrated. The cases which deal with Mareva injunctions provide the most obvious illustration of a situation where the result will follow. Given the authorities I have referred to it is not open to doubt that the court has jurisdiction to deal with such situations. The basis of the court's jurisdiction under s 275, however, otherwise militates against the conclusion that the court has jurisdiction to grant interlocutory relief of the kind sought by the applicant ….. The granting of interlocutory relief of the kind sought here, involves the respondent being restrained from acting within its existing rights, before the court has formed the views which are a crucial predecessor to its exercising jurisdiction under the section. If the court is not in a position to and indeed has not formed such a view, it seems to me there is no basis upon which relief of an interlocutory nature can be granted. 37 If there is no power to grant interlocutory relief in the form of a restraining order unless the "crucial predecessor to the exercising of jurisdiction under the section", that is a finding of unfairness, has been made, it would seem to follow that there is no power to make an asset preservation order until such a finding is made. It seems to me, with respect, that the source of power to grant Mareva orders is the same as the source of power to grant other forms of interlocutory relief and that there is no basis, in this context at least, to make a distinction between the two. If an asset preservation order can be made prior to any finding relevant to final relief I cannot see why other forms of interlocutory relief may not be ordered, given that the grant of interlocutory relief only involves a preliminary consideration confined to whether there is a serious issue to be tried and the balance of convenience. 38 Other cases that rely on the reasoning of Darvall in refusing the relief sought include: Maharajah; Maiden; Gibson and V Shop. To the extent these cases limit the grant of relief on the basis that the Court does not possess a discretionary power to grant interlocutory relief other than relief in the nature of a Mareva-type order, with the greatest respect, I disagree with them. 39 I find that I have jurisdiction to grant the relief sought in this matter, either on the basis that s 247(7) provides express power to make an interim order or on the basis of an implied power to grant interlocutory relief incidental and necessary to the exercise of the jurisdiction or powers conferred on the Court by the Industrial Relations Act 1996 and which underpins s 247(7) : see Jackson at 623-624 per Deane J; Jackson at 639 per Gaudron J; Patrick Stevedores at 23; Cardile at 423 per Kirby J ; Parsons v Martin (1984) 5 FCR 235; 58 ALR 395 at 240-241; 401 . If I am wrong about this, I consider that I do at least have power to grant interlocutory relief to ensure that any final orders made may not be frustrated or put at naught: Dickins ; Darvall. 40 The next question is whether the Court should, as a matter of discretion, exercise its power to make the interim order sought. More specifically: 1. Is there a serious question to be tried; and

Does the balance of convenience favour the granting of an injunction. 41 In relation to these issues, evidence was taken from the applicant in the form of three affidavits. The applicant was subject to cross examination on his affidavits. Evidence was also taken from Mr Bosworth in the form of an affidavit. Mr Bosworth was subject to cross examination on his affidavit. 42 As to the first issue, namely, whether there is a serious question to be tried, the applicant has alleged that the distribution of voting rights amongst the delegates to State Council is grossly disproportionate to the actual membership of the Union represented by those delegates. For example, the South Coast and Port Kembla Branch has 5,985 members represented by three delegates on the Council, whereas the Greater New South Wales Branch has 19,182 members represented by the same (three) number of delegates. Accordingly, the applicant says, the rules of the Union contravene s 235(1)(c) of the Act, in that they do not provide for proper democratic representative rights to members of the Union: see McLeish v Kane (1978) 22 ALR 547. 43 The applicant seeks an interim order to prevent the Council as currently constituted from electing any officials or transacting any controversial business prior to the Commission in Court Session determining whether the rules under which such elections are to be held or such business is to be transacted, are void. If such orders are not granted, the applicant submitted, irreparable and irreversible harm may be done to the democratic rights of the members of the Union and persons wrongly elected for a four year term. 44 In addition, the applicant said that in light of the charges brought against him at the State level, he was concerned that resolutions would be passed at the Council Meeting on 28 March designed to embarrass him, damage his reputation and prejudice his chances for election both as Secretary of the Union and Secretary of the Greater New South Wales Branch. 45 There can be little doubt that there is a serious issue to be tried. Indeed, the respondents made no submissions on the issue. 46 On the question of balance of convenience, Mr Phillips made a strong submission that it was against making the order sought. His main points were as follows: · Where the State Council has received a report of a substantial breach of the Rules of the Union by an officer of the Union, the Council is required to give that officer at least 21 days' notice of the hearing of the alleged offence. It follows that the State Council could not make a finding against the appellant prior to 9 April 2001 when the application for an interim order is set down for hearing before the Commission in Court Session; · Sub-rule 41(3) of the Union's Rules provides that a Branch of the Union may not be dissolved without the consent of the Executive of that Branch. Sub-rule 41(4) provides that any Branch which is defined by geographical boundaries (such as the Greater New South Wales Branch), may not have its boundaries altered without the consent of the Executive of that Branch. Sub-rule 41(5) of the Union's Rules provides that sub-rules 41(3) and 41(4) may not be amended or deleted without the consent of all those Branches referred to in Rule 41 that would be affected by such amendment or deletion. It follows that insofar as these sub-rules apply, no changes could be made to the Union's Rules prior to 9 April 2001; · The orders sought would be oppressive if granted because they, in effect, gave the applicant a veto in the State Council. There was a risk that if the order was granted the Union's business would grind to a halt; · The applicant complains the Council is an undemocratic body but cannot identify one instance where the Council has acted undemocratically; · The only occasion in the past where the applicant has sought to challenge the alleged unrepresentative nature of the Union's Rules was when he thought his position as Secretary was likely to come under challenge; · The respondent's regarded it as important to deal with the allegations against the applicant expeditiously otherwise the Union and the union movement might be brought into disrepute; · In weighing up the balance of convenience the Court should have regard to the disruption and inconvenience that would be caused by the interim order sought by the applicant over a period of many months and on the other hand the absence of any damage that might be caused to the applicant if the State Council Meeting proceeds on 28 March 2001. 47 In the course of proceedings, I informed the parties that I would be prepared to bring forward the hearing of final relief in this matter to 9 April 2001 and neither party demurred from that. In weighing up the balance of convenience, therefore, I need to consider: (a) the inconvenience that might be imposed on the respondents in the two week period to 9 April, plus the time it might take me to issue final judgment; (b) the applicant's position that if the Meeting proceeds on 28 March 2001 it will proceed in an undemocratic and unrepresentative way in relation to issues associated with "Election of Officers", "The allegations of rent being collected from the old Kent Street Building by Tania Gazibegovic", "Alteration of State Rules", and the prospect of the Council having before it the allegations by Mr Bosworth. Additionally, the applicant has expressed concern that the Council may carry resolutions that will irreparably damage his reputation and prejudice his chances for election in the forthcoming elections. If, as a consequence of the damage to his reputation, he were to lose the election the final relief he seeks would be put at naught. 48 Whilst I can understand the respondents' desire to deal expeditiously with the allegations against the applicant for the sake of the Union's reputation, I note that the substance of the allegations against the applicant were first made in October 2000. In the intervening period the allegations have been investigated by the Labor Council of New South Wales and the charges dismissed, then by the National Executive of the Union and again the charges were dismissed for lack of evidence. I acknowledge the charges alleged by Mr Bosworth are different in form to the earlier charges, but I am not convinced they are different in substance. In these circumstances, I cannot see how the respondents will be unduly inconvenienced by a relatively short delay in being able to bring the charges against the applicant. Apart from the perceived need for expedition in relation to the charges against the applicant, nothing was put to me that there are other pressing matters that require the urgent attention of the State Council, yet the respondents' position was that they were not prepared to postpone the Meeting scheduled by them for 28 March. Their unwillingness to do so only served to heighten my concern about what might occur at the Meeting. 49 For the applicant's part he alleges the Council is operating in an undemocratic and unrepresentative way and that if it were to make decisions about the matters on the agenda for the Meeting on 28 March and about the allegations as alleged against him by Mr Bosworth, the decisions or resolutions would be tainted. If it were not for this issue I do not consider that it would be appropriate for me to interfere with the internal workings of the Union and its State Council by restraining them in the manner sought. However, I am concerned that if the applicant is right about his allegations regarding the undemocratic and unrepresentative constitution of the State Council - and I express no view about that whatsoever that in the prevailing circumstances of an upcoming election an injustice may be perpetrated and irreparable damage done to the applicant and possibly to the Union and its members arising out of decisions made by what is alleged to be an undemocratic and unrepresentative body, namely the State Council of the Union. 50 I intend to make an interim order pursuant to s 247(7) of the Act restraining the respondents named in the application but not in the terms of the order sought because it is too wide and may be oppressive. Order 51 I make the following orders:

Collison v Hewston & ors

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Cases Cited (18)