Cook, R.A. & Ors v. Crawford, G. & Ors [1982] FCA 133

hear charges of gross misbehaviour against members of

branch executive - detailed consideration of provisions of rules of organisation - whether an amendment of rules con- ferring on federal council power to amend rules a valid exercise of power - whether such an amendment imposed upon

the membership conditions and/or restrictions which, having regard to the objects of the Act, were unreasonable - whether there was such imbalance in the representation of the membership on the organisation's federal council as to

warrant the conclusion that the structure of the organisation was "undemocratic" - whether charges laid against officials in tneir capacity as such were able to be relied upon for the purpose of expelling them as members - whether relief should be refused on discretionary grounds ~ whether officials by their conduct had repudiated their contract of membership ~ whether any such repudiation had been accepted by the organisation - whether the officials should, by reason of their ccnduct, be taken to have "unilaterally resigned" their offices and member- ship - Conciliation and Arbitration Act 1904, ss.132, 140, 141, 144, 171B, 171C, 171F and 171G.

ROBERT ARTHUR COOK & ors. v. G. CRAWFORD & ors. No. 6 of 1981

ote BO Eee Raval Stile nian hte ate ee tire oath Gy tet oe

) NEW _SOUTH WALES DISTRICT REGISTRY ) No. 6 of 1981

Between: ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS

. And: G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY, T. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

Judges Making Order: Smithers, Keely & Sheppard JJ.

Date of Order: 7 duly 1982. Where Made: "Sydney. : ORDER .

the apphsesesd, be stood over for further consideration

to a date to be fixed by the Court of its own motion or

Btrnte AG Aranm Std tba Nees eet Ee aint ck utd Eee ttelbalen aS roE Rk ane aS antl Nake te ATL ee entaathe

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) )

IN THE MATTER of the Conciliation and Arbitration Act

ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS

G. CRAWFORD, G-L. SMITH, R, FAIRWEATHER, R. HEVEY, T. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTERS EMPLOYEES'

31 May 1979 the appellant Robert Arther Cook sought orders

pursuant to s.141 of the Conciliation & Arbitration Act 1904

(the Act) that the respondents perform and observe the rules

ef the Plumbers & Gasfitters Employees' Union of Australia (the organization), an organization of employees registered

(a) by treating as null and void certain resolutions of

the Federal Executive of the organization adopted on 2

May 1979 purporting to expel from membership of the

organization five persons being members and officers

of the Sydney Branch of the organization (the Branch)

and to dismiss them from the offices they held in the

(b) by recognising such persons as the holders of the

3 The five persons referred to were Ulich Colin Bignell, Harold ; : Shooter, Kenneth Lewis Tyler, Royce Lawrence Cummins and , Gregory Lawrence Waters, On 2 May 1979 the said Bignell was 1 the elected Secretary of the Branch, an elected Branch

delegate to Federal Council and an elected member of the Federal Executive of the organization, the said Shooter was the elected Assistant Secretary/organizer of the Branch, the said Tyler was an elected Branch delegate to Federal Council and an elected full time Branch organizer and the said Cummins

e Plae oe outed dnes teu ee aetna er tated coe Micaela sis Alma acide onl ani Ss Suite teak esta teak en cle btnarind Poet tethe e SRS a PLAE RAE aT nat afetmtdcsantin sen titan Coal Ae ah ential No al ee ate

On 10 August 1979 Messrs Bignell and Shooter were added as applicants in the proceedings No. 19 of 1979 and on 3 September 1979 Messrs Tyler and Waters were also added as applicants. The proceedings were heard and determined by his Honour Mr. Justice Evatt who gave judgment on 4 March 1981 that the rule nisi be discharged. From this judgment the five applicants have appealed to this Court. They are hereafter

The resolutions of the Federal Executive were passed in-the course of the imposition of penalties purportedly under r.35(10) of the organization on the determination of charges brought before the Federal Executive of the organization by Ronald Ivor Masterson Secretary of the Newcastle Branch of the

"Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he ordered and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from membership of our Union and he has approved and endorsed their actions in doing so.

The Grounds upon which I lay these charges against U.C. Bignell are that between 23rd

February, 1979 and 29th March, 1979 he has so ordered and directed the said officers

The charge against each of the other appellants charged was:-

Each of the five appellants was notified thereof and informed

"... that being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he has actively persuaded, encouraged and aided members ef the Newcastle Branch of our Union to resign from membership of our Union.

The grounds upon which I lay these charges against H. Shooter are that between the 23rd February, 1979 and 29th March, 1979 he has actively persuaded, encouraged and aided within the area of the Newcastle Branch as defined in Rule 47 the following members of the Newcastle Branch: (14 Names were set out) employed by the Royal Newcastle Hospital (Health Commission) to resign from membership of our Union."

I have received charges against five full time paid officials of Sydney Branch, including yourself. A copy of the charges laid against you is attached.

I have now been directed by the Federal Executive to summon you, H. Shooter, to a meeting of the Federal Executive commencing 11.00 a.m., on Tuesday, lst May, 1979, in the Oriental Room, Carlton Rex Hotel, No.56 Castlereagh Street, Sydney, New South Wales, to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not be expelled from membership of the Union pursuant thereto.

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You will be given the fullest opportunity to present your case and may bring any member of the Union as a witness.

Each of them was also informed that the charges were laid pursuant to r.13(6) of the organization. The charges were heard on 1 and 2 May 1979. On 2 May 1979 the Executive determined the same by resolving to the effect that the Federal Executive found each of the appellants charged to be guilty of the charge laid against him by Masterson and

(a) he be dismissed forthwith from the office or offices

(b) that he be expelled forthwith from membership of the

1. Always provided that no member may be expelled and/or fined without having been given a full opportunity to be heard and that no member elected to an office shall be dismissed from any office within the Union unless he has been found guilty in accordance with the Rules of misappropriation of the funds cf the Union a substantial breach of the Rules of the Unien or gross misbehaviour or gross neglect of duty or has ceased according to the Rules to be eligible to hold office, a Branch

ne LK Tellin tn Sime EON AE MG oD eH a eR Ew SARI te eT RG net ate Mite nik te

or the Committee of Management of such Branch shall be the power to expel and/or fine any member of such Branch any sum up to, but not exceeding, two hundred dollars ($200) for each offence, who -

fails to comply with or violates any rule of the Union or any Branch;

works knowingly in contravention of any Award, Determination Order or Agreement between the Union or a Branch and an employer or employers;

refuses or fails to obey any motion duly resolved in the affirmative at any annual or special meeting of such Branch or of its Committee of Management or of the Federal Council or Federal Executive;

allows his arrears of contributions to exceed the sum of four dollars ($4.00);

apology, a meeting of the Branch or the Committee of Management, when summoned to do so by the Secretary;

commits any fraudulent or unlawful act in relation to the funds or property of the Union, or in relation to any election held under the Rules;

is guilty of wrongfully applying for work with the intention of depriving another member of his situation.

--cunless the following procedures shall have been carried out:-

to the Branch Secretary who shall thereupon arrange for the charge to be dealt with by -+the next most convenient meeting of the Committee of Management.

pane aptebl! Hho Suan fait aia ieuanhete Mla cate steaming mariah eater ie ue td

3. After a penalty of expulsion and/or fine is imposed by the Committee of Management an appeal against such penalty may be made in writing to the Secretary within twenty-eight (28) days of the decision.

The appeal shall be dealt with at a special summoned meeting of the Branch and the member laying the charge and the member appealing shall each be given a full opportunity of being heard.

4. If the member charged or the member laying the charge is dissatisfied with the decision of the Branch an appeal may be made by notice in writing forwarded to the General Secretary within (twenty- eight days of the decision appealed against.

6. Any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35.

(a) to hear and determine an appeal by any member or officer lodged pursuant to Rule 13(4) or Rule 51(3);

(b) to hear and determine the charges made against any member direct to the General Secretary pursuant to Rule 13;

(c) to appoint any officer or employee of the Union or othec person to investigate any complaint about the conduct of any member of the Union, record the evidence and statements and submit the same with his report thereonm= to the Federal Executive. The Federal Executive shall read and near such record and report and may thereon

determine whether any charge should be laid against any member pursuant to Rule 13 hereof provided that the investigating officer shall not vote in any such

(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to

or complaints to suspend any officer frem performing all or any of his duties for a period not exceeding three months;

(iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross

an appeal shall lie to the Federal Council at the instance of the member or officer charged from any decision of the Federal Executive under this Rule, Notice of Appeal shall be given to the General Secretary in writing within 14 days of the decision being communicated to him and shall set forth in full all the matters that the Appellant desires to be considered. The Appeal may be dealt with by Federal Council in meeting or by postal vote."

It is in r.51, however, that provision is made in the rules,

er primarily made for the dismissal from office of an officer

-on the ground of gross misbehaviour. Rule 51(3)(a), (b) and

(a) The Branch Committee of Management may remove from office any officer or member of the Committee at a meeting of the Branch Committee of Management to which the person

corte. Sian SESS eens A Sc ett mwas ern ACT ae REA wentapb Dia sehen Recr tA aac ne WEE ahal one

concerned has been summoned in writing signed by the Branch Secretary or Branch

President to show cause why he should not be so removed. Provided that no such person

shall be removed from office unless he has been found guilty of misappropriation of the funds of the Union, or gross misbehaviour or gross neglect of duty, or has ceased, according to the Rules, to be eligible to hold office.

(b) A person summoned to show cause Pursuant +o paragraph (a) of Sub-Rule 3 of this Rule shall be given at least fourteen (14) days notice of the time and place of the meeting of the Branch Committee of Management to which he is summoned. The notice summoning him shall also specify the ground or grounds upon which it is proposed to consider his removal. The Branch Committee of Management May preceed with a hearing to determine a Matter under this Sub-Rule notwithstanding the absence of the person summoned if due

notice of the hearing has been given in accordance with this Sub-Rule.

{c) An appeal shall lie from any decision pursuant to this Rule from the Branch Committee of Management to the Federal Executive. Notice of Appeal shall be given in writing to the General Secretary within 14 days of the decision being communicated to him and shall set forth in full all the Matters that he desires to be considered. The appeal may be dealt with in meeting or by a postal vote."

As to the resolutions of Federal Executive the appellants have

1. Rules 13(6) and 35(10) which were relied upon as providing authority for the laying, hearing and determination of the charges were not actually rules

of the organization at all. The contention was that

although Federal Council had purported to make such

PAR beet Shee ole advert SP ad hte BOP te BPE Oe Le et a ee Tee ce Sw

rules on 10 August 1978 it was not authorised to do so

(a) the conditions imposed by r.28 upon the making or amending of rules by Federal

(¢c) at ali relevant times Branch representation in Federal Council was in such imbalance that Federal Council was nok validly constituted and could not validly enact rules or amendments of

(d) the invalidity attaching to Federal Council extended to the Federal

The sanctions imposed were not, on their proper construction authorised by rr.13(6) and 35(10) if

charges direct to the General Secretary, rzr.13(6) and

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35(10), did not on their proper construction provide for laying of charges of gross misbehaviour, or, for the laying, hearing and determination by Federal

that whether or not the amendment of 1r.28(5) was effectuated in conformity with the provisions of r.28(2) rr.J3(6) and 35(10) are now to be considered as having been validly made because the period of four years from the amendment of r.28(5) in September 1977 whereby unfettered rulemaking power was conferred on

the conditions upon the Federal Council's power to Make or amend rules, said to be prescribed in 1.28 were not applicable because r.28(5) had been amended by Federal Council in September 1977 in a manner which conferred on Federal Council a complete and unfettered

power to make or amend rules; if those conditions were applicable to the making of rules 13(6) and 35(10) on 10 August 1978 they were

rr.13(6) and 35(10) if invalidly made, were validated

in the context of the rules as a whole any imbalance of which there was evidence was not of such a degree as to invalidate 1.21 which provides for Branch

if Federal Council was invalidly constituted there was nevertheless no invalidity in the constitution of the

in any event, in the circumstances of this case the Court should refrain, in the exercise of its

The learned Judge found that rr.13(6) and 35(10) had

been validly adopted by Federal Council on 10 August 1978,

that the charges were regularly made and dealt with thereunder

-and that r+.35(10) justified both dismissal and expulsion.

s.146(1)(a) or (c) of the Act by reason of the imbalance in

caret CURA Ee Lat LUO eh tna email OF meer ene arn ema ies mee td me a Et met Pant! Dae Oa

At the trial it was contended that natural justice had not been extended by Federal Council to the appellants charged. His Honour found that there had been no failure on the part of the Federal Executive in this respect. No challenge to that finding was made in this appeal. At the date of judgment s.171F of the Act was not relevant because four years had not elapsed since Federal Council had purported

to amend r.28(5). But at this date that period has elapsed.

The Passage of Four Years - Section 171F - (Respondents'

By virtue of s.171F, but subject to the provisions thereof, and of s.171G, upon the expiration of four years from the making or purported making or the alteration or purported alteration of a rule of an organization the same "shall, for all purposes, be deemed to have been done in compliance with the rules of the organization..."(see $.171F(1)). The submission to the South Australian Branch of the proposal to amend 1£.28 and the approval of tnat proposal by the Branch eccurred on 15 June 1977. The Federal Council purported to

Four years have now elapsed from the performance of both those events. However, four years had not elapsed when

these proceedings were commenced nor when the order of the

Leta veces vile dena veer baled A ham wed PE el PD aia eaele taba Rabb arne ase nas Mae em ti Cre ee

trial judge discharging the rule nisi was made, nor when this appeal was instituted. It was said by Mr. Clark that on its proper construction s.171F is not relevant to the hearing and

determination of this appeal. He referred to Mason J. in R.

v. Dunphy ex parte Maynes (1978) 139 C.L.R. 482 at p.495,

the proceedings in which the order is made." But as illustrated in that case this rule is not of universal application. The question whether it applies to these proceedings must therefore depend upon the terms of the section aS properly construed. The words used are emphatic. The rule which the body has purported to make is deemed for all purposes to have been made in compliance with the relevant rules. It was argued that it is inherent in the section that the validity conferred by the section does not operate in relation to pending judicial proceedings. But the section is net silent on the subject of proceedings on foot prior to the expiration of the relevant four years. Sub-section two of s.171F expressly excludes from the operation of the section any order, judgment or similar judicial act of the Court made before the expiration of the four years referred to in S.ST71F(1). The omission from this exclusory provision of orders and judgment made after the four years in respect of

pending judicial proceedings is of compelling significance.

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meveeie Bb SOM cate ce ene rte KGS, « tte Hatt fel taint cata Ooh Wf

It was pointed out by Mr. Clarke that s.171F(2) would operate to exclude from the operation of s.171F an interlocutory order directing, until ultimate judgment, the adoption of a particular course of conduct by a party to proceedings. This would seem to be so. But that circumstance does not indicate that the ultimate judgment would proceed as though s.171F was not applicable to the issues with which it dealt. When s.171F says that it operates subject to its own provisions it must be understood as saving that the only exceptions to its operation are those indicated therein. The only exceptions concerning litigation instituted before the relevant four years are those specified in sub-section two. That sub-section certainly does not include judgments given

The situation is not as drastic as it might at first "appear because s.171F itself provides it operates subject to s.171G. That section provides that where the Court is satisfied that the application of s.171F to the purported making or alteration of a rule would do substantial injustice having regard to the interests of the organization, members or treditors of the organization or persons having dealings with the organization, the Court shall, upon an application for such an order, by order declare accordingly and, where such a declaration is made, s.171F shall be deemed not to have

applied to such purported rule making oer alteration.

SBR tit ceaves Ble iy ca, LMU NE AE EAA em RS Ned eee LL ete ca dn ges eat ee a Ae ten cS lt mibtae p unineme ateiare LAC a ESN

The express reference in s.171F to s.171G as a qualification of the validation effectuated by s.171F of various acts of an organization is an indication of considerable force that the legislature was well aware of the possibility of injustice occurring by the application of s.171F where the relevant four years should expire during the progress of legal proceedings. It made a provision whereby in a proper case relief could be obtained. In such a case the continuing operation of an interlocutory order would conveniently contribute to the avoidance of possible

It appears therefore that as of this date the amendment in September 1977 of r.28(5) must be treated as having been validly achieved. Accordingly on 10 August 1978 the Federal Council had complete and unfettered power to adopt

A somewhat non definite expression of a preference for a contrary view to the adoption thereof appears in the judgment of J.B. Sweeney and Evatt JJ in Egan v. Harradine (i975) 25 F.L.R. 336 at p.381 in the following terms:-

"Tt was argued that the period of four years referred to in the section was to be ascertained at the date of the decision. The contrary view . was that it was to be determined as at the date of

institution of proceedings. * is true that s.141 in terms makes the periods there referred

calculable as from the institution of proceedings and s.171F has no such express language. In

considering a statute amended so frequently and in such varying circumstances as this we are able to place little weight on that fact.

If the first view were adopted then in any proceedings the loquacity and stamina of counsel or the dilatoriness of the bench (any or all of which we concede may exist) could bring about cases where there was a good cause of action at the commencement of proceedings but which disappeared during the hearing or preparation of the decision.

We prefer and adopt the second view (cf. Lynch v. McLachlan. T£ we were of the contrary view we

would be Gisposed to exercise the powers under s.171G."

It is to be noted that in Lynch v. McLachlan (1962) 3 F.L.R. 59 it was decided that a member who was validly expelled from

an organization after he had sought relief under s.141 in

respect of an earlier invalid disqualification from office was entitled to an order under s.141 in respect of such

"As to the respondents' second answer, the claimant was a member of the organization at the time of his disqualification from office and at the time he obtained the rule nisi challenging the disqualification and in our opinion this is sufficient to entitle him to seek relief under s.141 of the Act in respect of a misapplication of the rules of the organization which affects him "personally and detrimentally. The rule of the common law is that there must be a complete cause of action at the time proceedings are instituted (see Nathan v. Green). So long as jurisdiction exists at the time proceedings commence, the proceedings may continue notwithstanding that the facts on which jurisdiction is based subsequently change (Russell v. Russell).

PULL nen Wee heels tel BL Frater it mee MAN ie HOt Nene Hees PALES

The claimant accordingly is entitled to an order declaring that the decision of the annual conference of the Amalgamated Postal Workers'

Union of Australaia made on 21st November, 1961, purporting to disqualify the claimant for twelve months from holding office in the organization was and is invalid." This decision is not really of assistance in the construction of s.171F. The question there was whether, given that an

applicant has at the date of his rule nisi a good cause of action, the Act has not provided that, if a certain event occurs before judgment, the cause of action may be defeated. Ordinarily one would set one's face against a construction which would produce such a result because it would be unjust. But the situation is different where the legislature has foreseen and provided for relief if such injustice should occur. It seems clear that in expressing their preference in Egan v. Harradine (supra) the Judges were speaking in the absence of argument in depth, and in circumstances in which they were conscious that the preference expressed was not essential to the problem before them and might not on further investigation appear well founded. In these circumstances it is my Opinion that this is a case in which with respect to the contrary opinion so expressed this Court is not constrained

substantial injustice was suffered and relief is sought it

nomi. veel ole atlas tee te ec acca ita stable "ieee ul te eh mea lnc ei Seeli nde SileAted wesbrabsseamblan hve "neaee fete tn tame Unt Sateilebanbeadi eis fLeinT a lem iniaveenantinch -cadanadtiae | boise ennai ani,

would be necessary to explore whether relief should be

Accordingly the amendment of 1.28(5) must at this stage be deemed tohave been achieved in accordance with the rules of the organization. However it is a more satisfying resolution of the issues in this case if it is achieved on the basis that the amendment of r.28 is seen to have been accomplished actually in accordance with the rules than to proceed merely on the effect of the passage of time in litigating the issues. I pass therefore to consider whether as a matter of procedure

the amendment was effectuated according to the rules of the

Amendment of Rule 28(5) - (Respondents' Contention No. (ii))

The appellants' case in support of part (a) of the first contention involves an examination as to whether on 10 August 1978 there were any conditions to which the rule making power ef the Federal Council was subject. Prior to September 1977 r.28 of the rules of the organization was in the following

The Rules of the Union shall not be amended except on a resolution carried by a majority of the Council.

Any member desiring to submit to the Council any proposal to amend the Rules must first submit

such proposal to the meeting of his Branch specially convened for the purpose.

If such proposal be approved by a majority of the members present at such meeting it shall be

forwarded to the Head Office for submission to the Council.

The General Secretary shall prepare an agenda of any such proposals and forward copies of same to all Branches, not less than six (6) weeks prior to the Council meetings to which such proposals are submitted.

The Council may at any time make or amend any Rules so that the Rules of the Union may comply with the requirements of the Commonwealth

Conciliaticn and Arbitration Act, or any similar State Act."

In September 1977 Federal Council purported to amend

r.28 by renumbering it r.27 and by substituting for sub-rule 5

75. The Council may at any time make or amend any Rules."

On its proper construction before the amendment, r+.28 was effective to impose upon the rule making power of the Federal Executive the condition that any new or amending rule should __ have made its appearance on the agenda of Federal Council only

after observance of the procedure prescribed in sub-rules

""2,3,/4 as fairly construed. That view of r.28 was subsequently

taken by the Full Court of this Court in Roots v. Mutton (1978) 32 F.L.R. 15.

HER nna. Heiser! Tero t Ceaistietiauddneied AU DbOL ait ele a letuld te iterates ore Suntan d/h Eek ln lineal ao ade! omreteth Antti An Poatrabee SSR RDO Wl. lati

It appears that the amendment to r.28(5) was initiated at the Annual Meeting of the South Australian Branch which was held on 15 June 1977. Notice of the holding of that meeting was given in the Branch Bulletin which was posted to all members more than two days before that date. The front

page of the Bulletin contained the following statements:- -

2. RECEPTION OF BALANCE SHEET AND FINANCIAL STATEMENT.

3. RETURNING OFFICER'S REPORT.
4. PROPOSED RULE CHANGES.
5. REPORTS.
6. ANY OTHER BUSINESS Office Address: Suite 6, First Floor, Trades Hall, '~-]1-16 South-Terrace,

General Meetings are held on the third Wednesday in the month at 7.30 p.m. in the Union Office, Trades Hall, Adelaide.

Chairman - Trevor Meredith Organiser - Tony Bush Secretary - Bob Fairweather"

It can be seen that the Bulletin gave notice that the agenda

of the meeting included the matter of rule amendments.

Furthermore the opening statement on page 2 of the Bulletin

"CHANGES TO RULES: The Branch Committee recommends the following Rule changes to be included on the Agenda of the Federal Council

Meeting to be held in Newcastle on 19th September, 1979 (sic)." :

Thereafter the text of the proposed amendment to r.28(5) was set out. The proposal to amend r.28(5) as above was put to the meeting and carried and notice of intention to include the proposal on the agenda of the mext Federal Council meeting was transmitted to Branches as required by r.28(4). The proposal was included on the agenda of the Federal Council meeting of September 1977 and at that meeting the proposed amendment was adopted. The appellants contended that the meeting of the South Australian Branch on 15 June 1977 was not "the meeting of his branch specially convened for the purpose" within the meaning of r.28(2). Im my opinion this contention cannot be

context of the whole of the rules, and, in particular the

PE et CEE BRO RET MA be I LCR dh Geert aE nee center RECUR Aa tbe ar CRs Eas NE oe OE eta Ph a rit ae ar acl

23. . rules concerning the calling or convening of meetings. The rules provide for meetings differently designated. They

provide for "Special or General Summoned Meetings" (r.60(4)), and "Special Meetings" (rr.47(4)(d), 55(1) and 60(5)). The calling of meetings is governed by 1.60(4) which is in the

"4a, Notice of all Special or General Summoned Meetings shall be given by an advertisement in a daily paper, or by summon notice forwarded, at least two days prior to time of meeting, to each member, to the address last recorded py the Secretary or at the office of the Branch."

It is to be noted that this rule does not provide that the notice of either class of meeting contain information as to the business to be considered thereat. It is arguable therefore that a meeting becomes a meeting specially convened 'for a particular purpose if the notice convening it contains

• notification, simply, that specified business is to be brought before the meeting. I think, however, that this suggestion lacks conviction. Notwithstanding r.60(4) I do not think that a special meeting would be properly convened by notice which

"did not indicate the nature of the business to be dealt with.

There is of course reason for a provision that the business of altering rules should be considered at meetings where the spotlight is on that business. This might not be achieved at a meeting where various subjects have to be dealt

with, On the other hand while there is likely to be a

Fahl ne i nedbeelacheeiialebabepan a Mien te tec A noel erates ed EEE oho MED Tt chin HANEY re Lamotte Band do 2h

reasonable attendance of members at an annual or ordinary monthly meeting the same cannot be said with respect to a special meeting at which a proposed rule amendment is the only business. However 1.28(2) is not concerned with a meeting where rules are to be amended. It is concerned only with the inclusion of a proposed amendment on Federal Council's agenda. Federal Council will only be required to include in its agenda a new rule which has had consideration at Branch level, and Federal Council will be required to include in its agenda a

rule which has been approved after such consideration.

It is important to note that r.28 provides the only path to rule amendment on the initiative of a member, and that fundamentally it is an enabling rule. That members should be able to initiate consideration of proposals to amend rules by the branches and Federal Council is legitimate and beneficial to the Union. Rule 28(2) is a fetter upon this facet of union activity. To my mind an interpretation of r.28(2) which does not fetter it unduly or even unnecessarily is to be preferred, if logical and open on the wording of the rule. But in construing r.28(2) it is certainly the case that in the absence of some context, the notion of "a" meeting specially

"convened for a purpose, would be of a meeting which, but for the purpose of accomplishing that purpose or that purpose

Accordingly if the meeting of 15 June 1977 is to be regarded as "the meeting of his Branch specially convened for the purpose" of receiving the proposal to amend 1.28, it must be because, in those words, construed in the context of the rules, the notion that it is the convening of the meeting at all, which is to be special, is not present. However, the relevant words are "the meeting of his Branch" and not "a meeting of his Branch". This may seem at first as of little importance, Nevertheless if a special meeting were contemplated the expression "a meeting or "a special meeting" would have been more appropriate. That the meeting in question is not described as a special meeting is of significance because, in so many instances in these rules,

"meetings are specified as special or of some other specified kind. It is a legitimate view therefore that the meeting is not conceived of as a special meeting. It follows from this that what is special about the meeting may not be that it is a meeting specially convened, but that being a meeting

ordinarily convened there is something in the manner of the

convening of it which characterises it as special to the

The suggestion in the relevant words is that the meeting in question is one which it is contemplated will in any event be held. Indeed they express the notion that the

-meeting referred to is one the holding ef which is already

SE Sutteniadach Satire. vAdscartenr late! emer ede Whe eile nce: slant bats Catt bial Citar Leda ban! Ne Pilea te atk, atm A EE cn le Raat tet, tl at Si lait L Ed Ra Bethany Lm

provided for. And it is clear that according to the rules it is contemplated that regular Branch meetings one of which is the annual meeting will be convened. It is permissible therefore to understand the reference to "the meeting of his Branch" as a reference to one of the regular Branch meetings which will be convened from time to time for general Branch purposes. If, for a moment, one considers r.28(2) as though the words "specially convened for the purpose" were not present, it would seem clear that a member might present a proposal to amend a rule at any of the ordinary meetings of the Branch convened in the ordinary way under the rules. The reference wculd not be "a meeting of his Branch" or to "a special meeting" but to "the meeting" which, in the contemplation of the rules, will be held in any event in the ordinary course of affairs. To my mind there is wrapped up in this a recognition that under the rules meetings of the Branch are provided for and that it is to one of those that the Member may present his proposal. If, with this in mind, the words "specially convened for the purpose" are put back into r.28(2) the notion that the meeting in question is to be one which would not have been held but for the purpose of receiving the rule amendment proposal has disappeared. One --has. passed from the -notion of a-meeting which is to be specially convened, in the ,sense that it is the convening of it at all which is special, to the notion that the meeting being one which is going to be convened in the ordinary way,

in any event, there is to be something relating to a purpose

chert, chatenara dante bale nT, AAA Saal Dac state eenl nina rele eiclnarenati ean SE TSM Ke pls ali ald Sancta MOUE Mean 1s hath shake sere eet Nt Ames ibs dy

of the meeting that is special in the manner of convening of it. In such a case there is plenty of work for the word "specially" to do according to its ordinary meaning as modifying the manner of the convening of the meeting to emphasise that the purpose is to do the particular business specified. The convening of the meeting appointed for considering a rule amendment proposal can be said to be special when the notification of calling the meeting designates it aS a meeting at which the proposed rule amendments are to be considered. When the member has put his proposal at that meeting his proposal has been submitted to the meeting of his Branch specially convened for the purpose,

the meeting designated pursuant to r.28(2) for the purpose.

As indicated above, it is said that such a construction fails to recognise the significance of rule changes in Union government. Changes in rules go to the heart of the fundamental rights and duties of members and it is expected that due ceremony will be provided in relation to the initiation of rule changes. One contention is that the rule should be construed as requiring that changes be initiated only at a meeting at which that subject and no other is on the agenda. The spotlight of the meeting should be on that subject alone. It is to be observed, however, that construing the rule as though it does require a meeting specially convened, in the sense that it is to be a meeting which would

"not have been held but for the purpose of receiving a rule

Speak. At that point subject to the twin checks of honesty and vigilance the risks of improper use of a power of

The Effect of Section 171B - (Respondents' Contention No. fiv))

However, because of s.171B of the Act, the purported amendment, aS an act performed in good faith by a collective body of the organization, has validity notwithstanding the failure to comply with 1.28(2). Accordingly, the purported amendment of r.28 must, at this stage, be regarded as having been validly made. It follows therefore that so far as power to adopt rr.13(6) and 35(10) on 10 August 1978 was concerned, the Federal Council was fully equipped to adopt those rules.

"(6) Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty upon, a member of an organization which would not have been valid if this section had not been enacted."

It is clear that the dismissal from office and expulsion which was suffered by the relevant five appellants

constituted penalties within the meaning of this provision.

It is just as clear that such penalties would not have been valid had r.28 not been amended, as it was, in September 1977 because, but for that amendment, rr.13(6) and 35(10) could not have been made by Federal Council without the

It was argued by Mr. Gray that s.171B(6) was only effective to protect persons upon whom penalties have been imposed where the invalid act which is to be validated by the section was an act or operation in respect of the imposition of the penalties. Here, he argued, the act was too remote from the imposition of the penalties. He pointed out that it was separated from the imposition of the penalties by the act of adoption by the Federal Council of rr.13(6) and 35(10) in August 1978. Truly there was such a separation, but the words of s.171B(6) are so unambiguous that the submission as to the effect of the remoteness relied upon cannot be accepted. Thus s.171B can -not assist the respondents in respect of the

imposition of the penalties imposed in proceedings under

The appellants' contention in support of contention

numbered 1(b) above depends upon there being proof that there

was sO great an imbalance in representation on Federal Council of the seven branches of the organization that, contrary to s.140(1)(a), r©.21 which provides for Branch representation on Federal Council, failed to provide for the control of Federal Council by the members as required by regulation 115(1)(a)(v) and, further that, contrary to s.140(1})(c) that rule imposed upon members conditions which having regard to the objects of the Act and the purposes of registration of organizations

under the Act were oppressive, unreasonable or unjust.

_ The evidence upon this matter is almost exclusively contained in an affidavit of the appellant Bignell. It is in

"19. During the period of my association with the Union, the size of the different branches of the Union has not significantly fluctuated. During most of this time, the different branches of the Union have contained the following approximate percentages of Union membership:-

Me lbourne-Geelong 35% Queensland 12% South Australia 9% Western Australia 5% Tasmania 1% Sydney 33% Newcastle 5% 20. The last year for which I have precise

figures as to the percentage membership of the Union in the different branches is the year ended 30th June, 1975. During that year, each Branch had the following percentages of the Union:-

South Australia 9.28% Western Australia 5.34% Tasmania 1,02% Sydney 33.00% Newcastle 4.76%"

If this evidence be accepted the situation disclosed clearly reveals a degree of imbalance requiring consideration. But it waS not accepted by the learned trial judge. His Honour heard oral evidence of this appellant over eight days. He concluded, for reasons expressed, that he should not accept his evidence. He said "I am not prepared to accept any evidence that Mr. Bignell gave which is not corroborated by independent documentary evidence." If this conclusion may properly extend to the contents of the affidavit then there is no evidence of the state of Branch representation in the

Federal Council] and thus no evidence of imbalance.

tt is contended for the appellants, however, that in the particular circumstances of this case the contents of the affidavit should, as a matter of law, be treated as reliable evidence -despite the general lack of credibility of the witness, The particular circumstances referred to include, the omission from the cross examination of Bignell of any question going to the accuracy of the contents of paras. 19 and 20 of the affidavit, the inherently reasonable and credible nature of the particular facts deposed to, the ready availability of confirmation or contradiction of those facts by reference to available documents, the knowledge of the

organization of the accuracy or otherwise of the matter stated

and the capacity of the organization statements if in fact they were inaccurate. material facts were necessarily within the knowledge of or available to the Secretary of the organization, the Secretary gave evidence on various matters he was asked no questions on the subject. seen from

'erschell in Browne v. Dunn (1893) 6 R 67 at pp. 70 and 71 as

"Now my Lords I cannot heip saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by aS a matter altogether unchallenged, and then when it is imposssible for him to explain, as perhaps he might have been able to do, if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him and as it seems to me that is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses. ...

All I am saying is that it will not do to impeach the credit of a witness upon a matter on which he has not had any opportunity of giving an

It was submitted that it is to be the manner in which the case was contested that the

in paras. 19 and 20 of the affidavit was just not a

eT GR eee ee an alin tech lanonele Adee te oper GSS aids, th teeth the

the fact that ..." Reference was made also to the discussion of this principle in Hardy v. Gillette (1976) V.R. 392 Read v. Nerey Nominees (1979) V.R. 47 and Bulstrode v. Tumble (1970) V.R. 840. In the last mentioned case Newton J. pointed out that the principle has two aspects, first as a rule of practice

designed to achieve fairness to witnesses and a fair trial and

secondly as a rule relating to the weight and cogency of

"evidence. It is particularly this second aspect which is currently of importance. Concerning it the learned Judge said,

"the rule says no more than that if a witness is not cross examined upon a particular matter upon which he is given evidence, then that circumstance will often be very good reason for accepting the witnesses evidence upon that matter."

Whether it is a sufficient reason in any particular case must depend upon the circumstances. In Precision Plastics v. Demir

132 C.L.R. 362 a personal injury case in which a jury was said

• £0 -have seriously under estimated damages, the view was taken

that the jury must have failed to believe the plaintiff, when, in answer to the question "How long do you intend to continue working?" she replied "I like to work very much. Until the

age of fifty five years old. Of course until the last day

Lo Mia ales laemesteommnbmtt! any Mb 6M ee Od celine tt Atle OU I tee ln ih ate Re

until I died I like to work as far as work is concerned."

Gibbs J., as he then was, with whom Stephen J. agreed said.

"If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have an opportunity of explanation (cf Browne v. Dunn (supra)), but she was not cross-examined on her ansSwer. The respondent's evidence .... was not inherently incredible. She had in fact been engaged in employment during the time she had been in Australia before the accident, and had only given up employment when it was necessary for her to care for her child. In these circumstances, in my Opinion, the jury acting reasonbly were bound to accept her evidence ... that she had _ the present intention of working until she reached fifty five."

It is apparent therefore that according to circumstances it May become the duty of the tribunal of fact to accept evidence, not inherently incredible, where the witness giving it has not been cross-examined thereon. The circumstances in this case are those outlined above. It is particularly important that the-witness spoke of the 1975 Branch membership figures which he quoted as being those "for the last year for which I have 'precise figures.". This was a statement of such strength on a matter so within the respondent's knowledge that it almost demanded questioning if it was mot accepted as being true. The statement of the degree of fluctuation of branch membership invaded the area of the Secretary's special knowledge and was calculated to evoke denial if not true. No real explanation of the omission to cross examine or contradict this evidence was submitted. Apart from all other

considerations the evidence was a critical and immediate

Rabies haben Nnmaremlam lee Site yaa abi caibCieet +

threat to the constitutionality of the Federal Council and could hardly not have been recognised as such. In view of the ease with which the evidence, if untrue could have been contradicted it is reasonable to think that the respondents preferred it in the form in which it was to that in which

might emerge if the matter were pursued. In the result, according to the principle in Browne v. Dunn (supra), the

representation at all material times is established. It is

(a) Members in each of the States of Queensland, Tasmania South Australia and Western Australia shali elect one Federal Vice-President and one Federal Councillor.

(b) Members attached to each of the Melbourne and Geelong Branches in the State of Victoria shall at a conjoint election pursuant tO Rule 48A elect one Federal Vice-President and two Federal Councillors and

(c) (i) members of the Sydney Branch in the State of New South Wales shall elect one Federal Vice-President and one Federal Councillor (for the purpose of this Rule the Australian Capital

Territory shall be considered part of the Sydney Branch), and

(ii) members of the Newcastle Branch in the State of New South Wales (as defined

in Rule 47) shall elect one Federal Vice-President."

BETWEEN: ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CULMINS and

AND: G. CRAWFORD, G.L. SMITH, R. FAIRWEATHER, R. HEVEY, T. BOURKE, R. MASTERSON and TIE PLUMBDRS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

In these appeals I have had the advantage of reading in draft the reasons for judgment of both Smithers J. and Sheppard J. which set out the curial history of the cases and the issues arising for consideration as well as the relevant facts and the provisions in the rules of the Plumbers and Gasfitters Employees' Union of Australia (the Union). Because of the very

full consideration by them of those issues it 1S noc necessary

for me co set them out in any detail. I am content to simply express my agreement in respect of most of the matters falling

I agree with the reasons for judgment of Sheppard J. that xr. 28(5), in the form in which it existed in 1976, did not confer upon the federal council the power to amend the rules so as to give the federal executive the power to dismiss from office. I also agree with his reasons for deciding that the annual gensral meeting of the South Australian Branch, held' on 1S June, 1977, was not "the meeting of his Branch specially convened for the purpose" of having submitted to it a member's "proposal to amend the Rules" as required by r. 28(2) of the rules. In this connexion it may be added that the Bulletin containing the notice of the annual general meeting did not state or imply that the meeting had been specially convened for the requisite purpose and the minutes of the meeting did not contain any statement that the meeting had been "specially

Rule 28 was considered by a Full Court of this Court in

Roots v Mutton [1978] 32 F.L.R 15. As to the philosophy of

participation by the members in the process of amending the rules, upon which the requirements of r. 28 were based, J.B.

Sweeney, Evatt and Deane JJ. said in that case (at p. 19) :-

"Quite apart from the above considerations, there is a more fundamental reason for construing the procedural requirements contained in sub-cll. (2), (3) and (4) of xr. 28 as mandatory rather than directory. Undezlying these provisions is the obvicus philosophy that, apart from the case where amendment is necessary to comply with legislative requirements, amendments to the rules of the union should have a basis in the membership itself. Tne initial promoter of an amendment to the rules is seen aS acting in his capacity as a member of the union rather than as an officer or as a member cf the federal council or of the committec of a branch ef the union. The proposed amendment must, if it is to be submitted to the federal council, be approved by a majority of the members of the branch te which the relevant member belongs at a meeting specially convened for the purpose of considering it. It cannot be dealt with by the federal council unless notice that it is proposed to consider it has been forwarded to all branches of the union not less than six weeks prior to the relevant meeting of 'he federal council. The requirement of notice to all branches is clearly designed to ensure that, except where the proposed amendment is to meet legislative requirements, no amendment will be made to the rules of the union without the members of the unien bcing, at branch level, given the opportunity of considering the propesed amendment and making their views known in relation to it. Since branches meet monthly, six weeks' notice is designed *6 ensure that each branch will meet after it gets notice of

the proposed amendment and before the council meets."

In my opinion the facts in relation to the South Australian Branch annual general meeting did not comply with either the spirit or the letter of the ceauirement of r. 28 and that Meeting was not "specially convened for the purpose" within

I agree with Smithers J. that the September 1977 amendment, if it had been valid, would have been effective to

remove the conditions previously applicable to the rule

4, Making powers cf the federal cecuncil - rejecting the appellants' argument to the contrary. I also agree that,

having regard to the terms of s. 171B.(6), the Court should not accept the submission advanced by Mr. P.R.A. Gray, of counsel, on behalf of the respondents that the purported

As to the effect of s. 171F, I agree with Sheppard J. that the purported amendment to r. 28(5) was validated at the expiraticn of four years in September, 1981. In the Australian Industrial Court in Egan v Harradine [1975] 25 F.L.R. 336 at p. 381, J.B. Sweeney and Evatt Ju. expressed concern at the possibility of injustice resulting from "the loquacity and stamina of counsel" if s. 171F. had such an effect. mr. J.R. Clarke, of Queen's Counsel, on behalf of the appellants agreed that that decision was not bindijng upon this Court. I consider that we should not follow that decision because in my cpinion s. 171G. is a sufficient safeguard against any such potential injustice.

I also agree with the reasons expressed by Sheppard J. for holding that the Western Australian branch meeting was

not "specially convened for the purpose" and that the

amendments based upon "Document R" were not validly made.

The amendment to r. 28(5) plainly departed from the

previous "underlying ... philosophy that ... amendments

should iiave a basis in the membership itself" which the Full Court in Rocts v Mutton (in the passage quoted earlier) regarded as "a more fundamental reason for construing the procedural requirements ... as mandatory ...". I agree with the reasons for judgment given by Sheppard J. for holding tnat the amendment to r. 28(5) infringed s. 140(1)(c) of the Act in that it imposed upon members conditions which, having regard to the objects of the Act and the purposes of the registration of organizations, are unreasonabie. I desire to add briefly my own views for not accepting certain of the arguments advanced in support of the submission that the amendment to xr. 28(5), conferring upon the federal council an unfettered authority to make and amend rules, does

Firstly, considerable reliance was placed upon the provision for "a referendum of the members of the Union" under r. 27 if the decision "is disagreed with by a majority of the members of any two Branches in any two States, present at a meeting of the respective Branches specially called for that purpose", Leaving to one side possible difficulties with the construction of that rule and the possibility of differing opinions (as have occurred in this appeal) as to whether a meeting has been "specially called for that pucpose", the pessibility of having a referendum has

considerable disadvanteges as a means of member participation

in the rule-making process. In Boland v Munro [1980] 37

A.L.R. 263 at p. 280 Evatt and Northrop JJ. adopted the

"Referenda are a cumbersome, time~consuming and very expensive operation for a union. As a matter of practice, and indeed I think by necessary implication, they would be conducted by secret pestal ballot and they would involve the printing of cases for and against a particular proposal. This being sco, the cost to a union is very great and the union is entitled to limit the right to a referendum zo truly important questions."

That passage would provide the basis for a powerful argument by anyone opposing a motion directed towards having a question submitted to a referendum of the members. Reliance could be placed upon the words "cumbersome" and "time-consuming" and also upon the opinion that it is a "very expensive operation for a union",is required to"be conducted by secret postal ballot" and involves "the printing of cases for and against a particular proposal". Disputes might arise as to how to decide who should write the cases "for and against". Further, if the meetings "Specially called" wished to "disagree with" (say) 10 out of 15 amendments to the rules then presumably there would have to be 10 refercnda questions with the printing of cases for and against each question. In the meantime the decision of federal council "Shall remain in

full force" although the amended rules would not have effect

sores Se ne eerie ne ee me me ~ we cen cee . oe ee oe oe

Secondly, it is said that in certain circumstances a special meeting of the federal council shall be called under r. 24 to review the previous decision. Doubtless a decision open to a review by the same body is preferable to a Gecision which is irrevocable but it is only an appeal from Caesar to Caesar and in my opinion can hardly be said to go far towards "the full participation by members ... in the

Thirdly, the requirement under s. 139(4) that any amendments te rules made by the federal council must go to the Industrial Registrar for his certificate does not in my opinion provide any answer to the argument that the rule contravenes s. 140. That section would tend to meet an argument that the rule-making power might be misused. However, the question under consideration is not whether the power conferred may be misused but whether the conferring of the power itself imposes conditions upon members which, having regard to the objects of the Act and the purposes of

the registration of organizations, are unreasanable.

Fourthly, the fact that s. 140 would permit proceedings in this Court in respect of a rule that had been made by the federal council is, for similar reasons to those which I have just given, no answer to the question whether

the rule conferring the rule making power (as distinct from

rules made under that power) imposes conditjons that are

fee ra eaten A ee ae Na me en ee nee iene Gee ee ee eee

8, unreasonable. In any event the members of the Union may not be prepared to take court proceedings in respect of rule amendments carcied without refcrence to the membership generally; it should not be assumed that such proceedings can

Fifthly, I agree that "much must be left to the judgment of those who make the rules" but it must be remembered that this amendment to the rule was not passed in accordance with the earlier power to amend rules which had "a basis in the membership itself". The questicn remains for determination - does the rule impose conditions which are unceascnable in the sense used in s. 140. The Court has a duty to decide that question and must not be deterred from that task by the possibility that someone may wrongly believe that the Court is putting "into effect its own opinions as to what is desirable in the way of union rules" - per O'Mara J. in Thornton v McKay (1946) 56 C.A.R. 561 at 590. The Court's "own opinion as to what is desirable in ... union rules" is of course quite irrelevant to questions of whether rules contravene s. 140 just as the opinion of the High Court as to what is desiraple in Federal legislation is guite irrelevant to questions of whether the legislation is within

regulations contain a provision expressly stating that the

rule making power must be exercised in accordance with prescribed conditions. However, in my view the respondents' submissions gain no more assistance from that fact than the appellants' submissicns gain from the fact that. they also contain no provision stating, that the grant of an unfettered rule making power to a federal council is permissible. The legislation, instead of making either of those specific provisions, requires that the rule conferring the power to amend rules ~ like all other registered rules ~ "shall not impose upon ... members conditions which ... are unreasonable weal, For the reascns given, including those expressed by Sheppard J.,1I consider that r. 28(5) does impose conditions which are unreasonable having regerd to the objects of the Act and the purposes of the registration of organizations and

I also agree with what Sheppard J. has written as to the consequences of the contravention cf s. 140 and with his opinion that the federal executive had no power to dismiss from office or to expel the appellants other than Mr.

I agree with the reasons given by Smithers J. for deciding that the learned trial judge erred in rejecting, on the question of "imbalance", the evidence of the appellant Bignell, which was not challenged in cross-examination and

was uncontradicted. I do not find it necessary to express an

opinion as to whether, notwithstanding the "imbalance" shown to exist, r. 21 should not be held to conflict with ss. 140(1)(a) or 140(1)(c) of the Act. In considering those questions 3t would be necessary to consider the nature of the Union, its histery and the provisions of the rules including yr. 24 which providesfor a "Special Meeting of the Council to review any previous decision" and r. 27 which permits a referendum of the members of the Union. As to those two rules I have already, in considering the power to amend

rules, expressed views as to certain weaknesses and possible

I agree with the reasons for judgment of Smithers J. in dealing with the question of "the charges" (assuming

the validity of rr. 13(6) and 35(10)) and "the sanctions"

Mr. Gray submitted that the five appellants, by reason of their conduct, had all ceased to be members of the Union before the proceedings commenced and accor@ingly they could not obtain relief under s. 141 nor could Mr.Cook succeed in obtaining the orders he sought in respect of them. In his submission each of the five appellants by his conduct had repudiated his contract. This repudiation was said to have occurred either by "a fundamental breach ... (that) goes

to the root of the contract to the extent that it destroys

it" or by an unequivocal] act evincing an intention by them to

be no longer hound. It was submitted that the repudiation

that it had been accepted. A closely allied submission was

membership of the Union. In this connexion it was also

that the offices held by the five appellants in the

Union registered under the (Clth.) Act were incompatible with

the offices they held in the Union registered under the

N.S.W. Act and that that situation constituted a resignation

by the appellants from the offices held in the Federal Union

which resignations did not require acceptance by the Union.

appellants' counsel to "represent novel approaches to the

"far-reaching propositions" advanced by counsel in John v

Rees and others [1970] 1 Ch. 345. In that case Megarry J.,

of the local Labour Party. They had, he said, destroyed their own membership either by stating that they would not give the undertaking, or by failing to reply to the letter within a reasonable time. It might be, he added, that they ceased to be members when they inwardly harboured disloyal notions to their bosoms, a concept which seems to me to give rise to many interesting speculations. He also contended that by their acts they had resigned theic membership ...by their unconstitutional action and demonstration of disloyalty they had repudiated their membership. It maght even be, he said, that a deliberate breach of any rule would bring about an ipse facto determination of their membership".

His Lordship later (at pp. 397-8) found it unnecessary toe decide a further "interesting submission" that :-

... dif there were a doctrine of ipso Facto determination, every member of the Covernment and the Labour Party would have ceased +o be members of

that party, and all its assets would pass to the Crown as bona vacantia."

As to Mr. Gray's first submission I am not prevared to held that such repudiation, if it occurred, was accepted. The decision of the Federal Executive of 2 May, 1979 could not in my opinion amount to such an acceptance because that decision necessarily proceedcd on the basis that on 2 May, 1979 the appellants were members and officers of the Union. In his written reply Mc. Gray relied also upon the matters set out in paragraphs 10 and 11 of the Points of Defence as

'constituting a sufficient acceptance of the appellants' repudiation. Those matters, however, must be read in their context, namely, as part of a document in wnich the respondents had contended in preceding paragraphs, amongst

1. On 2 May, 1979 the Federal Executive had power under the rules "to expel from membership and dismiss from office" the appellants.

2. The Federal Executive had power "to dismiss officers

3. The Pederal Executive dismissed the appellants from office and expelled them from membership under certain general and Iinherert powers.

4. Any rules containing the power to dismiss from office or expel from membership did not contravene s. 140 and contained "express Rules ... with which a memper or officer is obliged to comply and, in default ... is liable to expulsion."

8. The appellants were found guilty of charges and "dismissed from office and expelled from membership."

9. (g) & (h) The Federal Executive had befere it evidence establishing gross misbehaviour and/or gross neglect of duty "such as justified dismissal from office under the Rules ... and expulsion from membership

In my opinion the contention of the respondents that the matters in paragraphs 10 and 11 of their Points of Defence constituted an acceptance of the alleged repudiation by the appellants cannot be upheld when those matters are read in the context of the contentions ,in the preceding numbered paragraphs, to some of which 1 have referred. As those paragraphs demonstrate, the respondents did not purport to accept any repudiation but, on the contrary, applied the terms of the contract by purporting to usc the procedures for

the termination of the contract provided by the contract

itself. Accordingly the argument based upon acceptance of

14, repudiation fails. I should add, however, that in any event I am not satisfied that the appellants' conduct constituted

The argument that the appellants had impliedly resigned involves a consideration of whether there may be properly implied inte the contract of membership a term permitting a member to impliedly resiqn. The principles upon which courts will imply a term into a contract have been

summarized by the Privy Council in B.P. Refinery Pty. Ltd. v

Hastings Shire Council [1978] 52 A.L.J.R. 20 at p. 26 as

"Tneir Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy te the contract, so that no term will be implied 1f the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of cleat expression; (5) it must not contradict any express term of the contract."

The submission in support of an implied term permitting the resignation by a member falls faz short of the cequirements ckhere enunciated. The propesed implied term must not contradict any express term of the contract and here r. 19 expressly provides a method of resignation. The Union is

115(1)(d)(viii) to have a provision in its registered rules on that subject matter. Rule 19 provides that a "member shall not discontinue his membership without giving at least three (3) months! previous written notice to the ... Secretary of his intention so to do;", In my opinion the rule provides an exhaustive statement of the terms and conditions governing resignation. It follows that any implied term would contradict the express term of the

In addition, having regard to the terms of r. 19, the submission fails to satisfy the test that the rule sought to be implied "must be necessary to give business efficacy t9 the contract". Further such an implied term plainly is not

The respondents sought to rely upon In Re Sick and Funeral Society [1973] 1 Ch. 51. However, the judgment of Megarry J. (at p. 62) made it clear that it was a very G@ifferent case from the present appeal. Firstly, there a member had the "unilateral right, not dependent upon acceptance by the society, to resign his membership at any time, even though the rules contain no provision as to resignaticn," That position may be contrasted with the present case where r. 19 of the Union's rules contained a

detailed provision as to the manner in which a member might

resign his membership. That rule must be read in the light of s. 145 of the Act but it shows that the rules contemplated

a very different situation from that before Megarry J.

Secondly, Megarry J. may have been influenced by his view that there are "many instances of clubs up and down the country" in which members have failed to discharge their obligations as members for years, including the obligation to pay dues. His Lordship dealt with two possibilities, saying

"Yet if the contentions on behalf of the four members are right, either the society or the members concerned may, if it suits them, claim that the membership is still in being. Such members might find that the society is claiming many years' arrears Of a substantial subscription, or the members might, as here, suddenly reassert their Membership when some advantage turns up. I do not think that this can be right."

The possibility of a society "claiming many years' arrears of a substantial subscription" may be contrasted with the present case in which the Union, as a registered organization under the Act, has a statutory right to sue for dues "owing for any period of membership ... " (s. 148). In my opinion

the judgment does not support the respondents' submissions.

The doctrine of incompatibility of offices, upon which the respondents' also relied, @epends upon an

incompatibility stemming from the holding of the offices

TOR ATE merrier quite Se omen ee een ee a ae tree -

themselves - as distinct from an incompatibility stemming from the manner of performance of those duties. On the facts relied upon in support of this submission I am not satisfied that there was any incompatibility in the offices. Accordingly the respondents' submission baSed upon that

tT come finally to the questions of whether the Court has a discretion and, if so, how should it be exercised. In my opinion the Court's jurisdiction under s. 141 is discretionary. I consider that it is to9o late for anyone 10 argue in this Couri that the Court did net have a discretion before the 1977 amendments to the Act. The existence of the discretion was recognized by Dixon J. in Ex parte Barrett (13945) 70 C.U.R. 141 and was expressly accepted in R. v Spicer (1958) 100 C.L.R. 163 by Dixon C.J., McTiernan, Williams, Webb, Fullagar and Taylor JJ. who said

"In the second place the Commonwealth Industrial Court is not bound under s. 141 to exercise its

jurisdiction. It is a jurisdiction which is conferred in permissive terms and the Court has a discretion."

Further the Australian Industrial Court has exercised the Giscretion by refusing to make the ordecs sought by a

claimant e.g. McKay v Williams (1973) 22 F.L.R. 1 at p. 14.

In my opinion the words used in s. 18 of Act 108 of 1977 did

net show an intention to take away that discretionary power.

It is necessary therefore to consider the submission by Mr. Gray, on behalf of the respondents, that in this appeal the discretion should be exercised by refusing the relief sought. Having regard to the conclusions of Smithers J. and Sheppard J. on this submission I state my opinion with some diffidence. Considerations which appear the more weighty to them appear the less weighty to me and vice versa. The Court must exercise its discretion in

accordance with the purposes of the Act. In Magner v Fowler

and others [1979] 26 A.L.R. 671 at pp. 703-6, I expressed my opinicn as to the principles applicable to the exercise of the Court's discretion, following the principle enunciated in Wilson v_ Heydon (1944) 53 C.A.R. 482 by Kelly J. who said (at p. 488) :-

"In my opinion, Parliament intended that the power it reposed in the court shouJd be exercised to check such action, or to put an end to unauthorized inaction, in all cases where the action or inaction, as the casc may be- amounts to a substantial failure to perform or observe the rules of the registered body. Provided the failure be of a substantial nature, it is in other werds the duty of the court to exercise the discretionary power conferred upon the section in order to correct it."

That principle was applied in Milier v Building Workers

Industrial Union of Austraiia (1947) 59 C.A.R. 836 at p. 843

and again in Wocdwerd v Scott (1947) 59 C.A.R. 918 at p. 926.

There appear to have been very few cases dealing with the principles upon which the Court should exercise its discretion under s. 141 ~ possibly because of the relative infrequency of the occasions upon which respondents have asked the Court, (or the Courts previously exercising this jurisdiction), to exercise the discretion against an applicant. However, some assistance may be gained from Bowling v General Motors Holdens Ltd. [1980] 33 A.L.R 297, where J.B. Sweeney, Evatt and Northrop JJ. enunciated the principles applicable to the exercise of the Court's discretionary power under s. 5(5) of the Act to order that an "employee be ceinstated in his old position". The Full Court

"Tt is essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee by reason of any one or more of the circumstances specified."

Although the Court was there dealing with the exercise Of the Court's discretion to make an order against an employer who had been convicted of an offence against s. 5 of the Act, in my opinion the discretion under s. 141 should be exercised in accordance with similar principles in order to ensure that respondents to s. i41 proceedings, who are shown to have

dismissed from office or expelled from membership a membec cf

an organization in breach of the rules, should not benefit from that decision by ridding themselves of an officer or

There will be times ~- probably rarely - where the Court's discretion should be exercised against an applicant e.g. where he has been guilty cf undue and unreasonable delay in bringing the proceedings. I agree with Smithers J. that so fundamental is it that rules be obeyed that it is only in rare cases that the Court refuses an order (cf. Starke J. in Ex parte Barrett (supra) at p. 160). I also agree with him that there is good reason for the Court to exercise its discretion not to make an order where such an order would conflict with the encouragement of the organization of employees in a representative body but 1 do not consider that

erdecs in relation to these appellants would do so.

Mc. Gray, in submitting that the Court should exercise its discretion against the appeljJants, placed considerable reliance upon the findings of rhe learned trial judge as to the conduct of the present appellants, most of which conduct occurred before 2 May, 1979 ~ the date of the findings of guilt made by the federal executive. His Honour sazd, amongst other things :-

"T am strongly of the view that during 1977 and 1978 this tendency developed into a concerted plan by Sydney officials, particularly the five applicanrs who were charged, to orcmote the State Union at the

Lenlare ee ate = eee oe so eee tee oer --- . - - - --

al. expense of the Sydney Branch of the organization and to destroy or at the least so weaken the Newcastle Beanch of the organization that it would not be a viable branch. Further, in my view, it was this concerted plan which led to what can only be described as a raid on the membership of the Newcastle Branch in early 1979. If such membership couJd be significantly reduced then it was only a

Matter of time before that Branch would not be viable."

T am not prepared to infer from his Honour's findings that this appeal is being prosecuted in order that the appellants May continue £0 carry on the conduct found by his Honour to have occurred. Mr. Gray has submitted that it has not been shown on behalf of the appellants "that any change of their ways in that respect is likely" but much time has elapsed and the appellants have had ample opportunity to study ~ and to reflect upon - the findings of fact of the learned trial judge. After the delivery of judgment in this appeal the appeilants will have an opportunity to read the reasons for judgment of the members of this Court. In those circumstances I do not assume that the conduct found by his

I do not consider that, if the appeals are allewed and orders made, the respondents would be bound to allow the appellants to continue upon a course of action designed to Gestroy a branch of the Union - assuming that such conduct resumed or continued. Mr. Crawford, a respondent in Matter N.S.W. 19 of 1979, sovght orders under s. 141 of the Act

giving dizections for the pecformance and observance of the

22, rules of the Union (Matter V. 23 of 1979). During the hearing of this appeal, members of the Branch raised with Mr. Gray the possibility of proceedings in this Court under s. 141 of the Act seeking orders directing the appellants to perform and observe the rules. Notwithstanding Mr. Gray's answer, which referred to possible reluctance to enforce orders, I am not prepared to assume that the respondents would stand idly by, or refuse to institute proceedings in this Court, if the appellants obtained orders from this Court under s. 141 and then themse}ves acted in breach of the rules of the Union, If it be thought that there may be difficulties in the efficacy of such proceedings by reason of the time which might be taken in litigating the matter, then

it should be borne in mind that s. 141(2) provides that :-

"At any time after proceedings under this section have been instituted ... the Court may make such interim orders as it thinks fit in relation to the Matters to which the proceedings relate."

If the orders sought by the present appellants are made and the respondents fail to take action in respect of any similar conduct in the future by these appellants in breach of the rules, then the resumption or continuance of such conduct in breach of the rules will stem from that failure to institute

For the reasons given I do not accept the submissions put by Mr. Gray as to why the Court should exercise its discretion against the appellants. 1 agree that orders shculd not be made at this stage and the matters should be stood over £0 enable the parties to consider the

reasons for judgment of this Court and to make such

submissions as they think fit when the matter is re-listed.

IN THE MATTER of the Conciliation and Arbitration Act 1904, as anended

ROBERT ARTHUR COOK, ULICK COLIN BIGNELL, HAROLD SHOOTER, KENNETH LEWIS TYLER, ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS

G, CRAWFORD, G. L. SMITH, R. FAIRWEATHEF R. HEVeY, ©. BOURKE, R. MASTERSON and THE PLUMBERS AND GASFITTSRS EMPLOYEES! UNION OF AUSTRALIA

These are appeals from a judgment of a single gudge

of this Court (Evatt J.) in two matters (No. N 19 of 1979

Honour dismissed an application brought by the appellants

pursuant to the provisions of s.141 of the Conciliation

and Arbitration Act 1904 ("the Act"). The rule nisi

had called uvon the respondents to show cause why orders

should not be made that the respondents perform and observe

the rules of the Plumbers and Gasfitters Employees' Union

of Australia ("the organisation") by treating as null and void

resolutions of the federal executive of the organisation said to have been made on or about 1 May, 1979, purporting to expel the appellants, other than Robert Arthur Cook, from membership of the organisation and to dismiss those appellants from offices held by them in the organisation. The rule nisi had also called upon the respondents to show cause why orders should not be made that the respondents perform and observe the rules of the organisation by recognis- ing that the appellants other than Robert Arthur Cook were officers of the organisation. Certain other relief was claimed. It 1s unnecessary to refer to the detail of this. Until the resolutions referred to in the rule nisi,the appellants,other than Robert Arthur Cook, held various offices in the organisation. Mr. Bignell was the secretary of the Sydney branch, Mr. Shooter the Assistant Secretary thereof and Messrs. Cummins, Tyler and Waters were organisers. Mr. Cook, who originally was the only applicant, has at all material times been a member of the organisation, His membership thereof is not in question in these proceedings. The respondents are members of the federal executive of the organisation and the organisation itself. The organis- ation was not originally joined as a respondent to the

In the second matter Mr. Crawford was granted a rule nisi pursuant to s.141 of the Act calling upon a number of respondents including Robert Arthur Cook to show cause why certain orders should not be made giving directions to those respondents to perform and observe the rules of the organisation by acting in a number of specified ways in relation to the affairs of the Sydney branch of the organisation.

In the way that the argument proceeded there was an underlying assumption that 1f the appeal in N 19 of 1979 succeeded, it being the principal of the two applications, it would follow automatically thet the appeal in V 23 of 1979 should be allowed and the application dismissed. Likewise if the appeal in the first matter were to fail, his Honour's orders in the second matter would stand. For that reason no really separate consideration to the appeal in V 23 of 1979 was given. But the view that the outcome of the appeal in N 19 will necessarily involve the disposal in a particular way of the appeal in No. V 23 may not

A further matter mentioned to us, but not before us, is matter No. V 24 of 1979. That is an application under s.171C of the Act seeking, inter alia, the validation of any of the rules and resolutions found invalid in the prin- cipal proceedings, matter No. N 19 of 1979. A number of other acts and decisions are also involved in the application which was made by a number of applicants including the organisation. The application was not dealt with by his Honour who stood it over generally. There was discussion during the argument before us as to whether it ought not be referred to this Court. But that course was opposed by counsel for the respondents and was not pursued.

A further application No. N 28 of 1979, is an applic- ation made by applicants including the organisation pursuant to s.150 of the Act. It too has been stood over generally.

Because of unresolved questions arising in relation to No. V 23 of 1979 and other considerations which arise by reason of the applications made pursuant to ss.171C and 150 of the Act, I am in agreement with a course proposed in argu- ment that we publish reasons for our decision on the matters which were argued, but do not for the moment make formal orders disposing of the appeals. Instead the matters should be stood over for a short time to enable counsel to consider what we have said. When the matters are again in the list the question of whether there should be further argument on any matter and what orders, if any, should then be made can

The organisation is registered as an organisation of employees pursuant to the provisions of s.132 of the Act. It has been registered as such an organisation since October 1911. It has a number of brancnes; there is one branch in each State with the exceptions of New South Wales, which has a Sydney branch and a Newcastle branch, and Victoria which, since 1978, has had a Melbourne and a Geelong branch. The Australian Capital Territory 1s included within the area of the Sydney branch. The area of the Newcastle branch extends over a substantial area of the north and north western parts of New South Wales. The branches each enjoy, within their respective areas, a substantial degree of autonomy. But the supreme control of the organisation 1s exercised on behalf of the members (in which it is said to be vested) by the Federal Council which is to consist of two representatives (a vice president and a councillor) from each State, except New South Wales (which consists of three representatives, two (one a vice president) from the Sydney branch and one (also a vice president) from the Newcastle branch) and Victoria which nas one vice president and two councillors elected congointly by the Melbourne and Geelong branches. Amendments made to the rules in August 1978 wnich, amongst other things, created a separate branch in Geelong may be of questionable validity, but that 1s

net a matter which arises for determination in this appeal.

The rules to which I have referred have from time to time undergone some renumbering. The provisions were formerly in Rule 22 and are now in Rule 21.

It is convenient to say at this point that the proceedings involve substantial challenges to a number of the rules of the organisation. It has been necessary for us to look at its rules as they have been from time to time since November 1976. Three editions of the rules have been before us. These are dated respectively 15 November, 1976, 16 March, 1978, and 10 August, 1978.

The later editions incorporated amendments purporting to have been made in 1977 and 1978, some of which are, as I have said, under challenge. The renumbering of the rules which has occurred makes it difficult to refer easily to particular rules and to particular amendments thereof.

A number of specific powers are conferred on the Federal Council. In 1976 Rule 22.6 empowered the council, inter alia, to appoint the executive (thereinafter referred to) to hear and decide any appeal from any branch or member tnereof, to empower the executive and/or the general secretary -

"to take appropriate action including the dismissal

from office of any member or members elected to any office of the Union who has been found guilty within

the Union structure of misappropriation of the Union funds or a substantial breach of the rules of the

Union or gross misbehaviour or gross neglect of duty uw

and to repeal, alter or add to the rules of the organisation.

No doubt the provisions relating to the dismissal from office

of a member were drawn in order to comply with the provisions of s.133(1)(f) of the Act. I refer also to Rule 20A,

The executive of the council is provided for in Rule 36 (now Rule 37). Tne executive consists of the president of the council, the vice president for each State other than New South Wales and the vice presidents of the Sydney and Newcastle branches, In the form in which the rules were in 1976 the executive was empowered to suspend from office or impose a fine not exceeding $50 on any member of the union if it were satisfied that the member had been guilty of misconduct of the kind specified in a number of sub-paregravhs of suv-rule 12(a). Later amendments of these provisions purported to confer on tne executive more extensive powers than it previously nad. To the detail of those provisions I shall later refer.

The substantial question whicn falls for determination is wheth=r the purported action of the executive in dismiss- ing from office and expelling from membership the appellants other than Mr. Cook was valid and effective. In broad terns the attack which 1s made by the appellants upon the validity of tne executive's actions is based upon alleged invalidity of rules which purportec to confer power upon the executive to do what it did and, if thet submission fails, reliance

upon submissions that the executive did not act lawfully

within what was permitted by the rules as amended, The respondents dispute the attacks made upon the validity of the amendments to the rules and the procedures which were adovted,. In addition they submit that this Court ought not grant the relief sought because of discretionary grounds upon which they rely, because the appellants other than Mr. Cook by their con- duct repudiated their contract of membership which repudiation the organisation accepted as terminating their membership and because, by their conduct, they should be taken to have resigned their offices and memberships. All these submissions were dis- puted by counsel for the appellants who contended that the Court had no discretion to refuse relief if a case were other- wise made out, and that concepts of repudiation of contract and resignation by conduct were not appropriate to be applied in the circumstances of a case such as this. To the detail of these submissions and the considerations which they involve I shall come.

It should perhaps be made clear that the respondents did not seek to rely on the provisions of Rule 22.6 earlier set out (p.4) as a source of power for the executive's purported actions. The validity of that rule was not challenged, but, no doubt because of the words "within the Union structure", the respondents did not rely upon it as conferring power on the executive to dismiss an official from office. Elsewhere in the rules (Rule 51) power was conferred on branches to remove from office an officer or member of the branch committee of managemer'

I next give a short account of the background to the dis- pute. This is taken from a number of findings made by his

Notwithstanding the existence of the federal organisation for what is now a period in excess of 70 years, plumbers employed in New South Wales, with some exceptions, have, since about the year 1918, been covered by State awards made by the Industrial Commission of New South Wales or Conciliation Committees pursuant to the provisions of the Industrial Arbitration Act 1940 (N.S.W.) and earlier State Acts. There was no separate State union but the New South Wales branch of the federal organisation was registered under the State Act as an industrial union of employees. It was also registered under the Trade Union Act 1881 (N.S.W.); cf. Moore v. Doyle (1969) 15 F.L.R. 59.

On 31 July, 1978, the registration was changed. The name of the union registered under both State Acts became "The N.S.W. Plumbers and Gasfitters Employees Union".

The reason for the change is to be found in a course of events which began in 1977. In that year the appellants other than Mr. Cook were elected to the various offices, from which the executive has purported to dismiss them,

for periods of six yeers. There soon developed a running dispute between the Sydney branch and the Newcastle branch. One thing the Sydney branch officials set out to achieve

was total control of the organisation's affairs in New South

Wales, notwithstanding the independence and autonomy which

the Newcastle branch was accorded under the rules of the federal organisation.

It was federal policy for all employees who were members of the organisation to be covered by federal awards or agreements, but the Sydney officials opposed that course of action and goined with employers in arguing before the federal Commission that there be no federal award coverage in New South Wales. That conduct was the subject of a resolution of the Federal Council on 19 September, 1977. The resolution said that officials of the Sydney branch were directed not to operate or organise in the Newcastle branch area without the prior permission of head office in consul- tation with the Newcastle branch, All members working within the defined area of the Newcastle branch were directed to transfer to or to enrol in the Newcastle branch. on 11 April, 1978, at a meeting of the Sydney branch it was resolved that the resolutions to which I have referred along with a number of others be rejected.

In the proceedings at first instance much evidence was led on the question of whether there was in existence before 1977 a State Plumbers Union in New South Wales. His Honour found that the evidence supported the continual existence over many years of an active branch of the organisation in Sydney. On the other hand, apart from the occasional filing of financial returns and the making of new State

union rules in 1969, there was no evidence of any activity

which would support tne existence "of ean operative State Union",

Prior to February 1977 no separete meetings of the State union had been held. There was but the one election of officers and officials, persons elected to positions and officers in tne branch being deemed also to be elected to identical positions in the State registered union. Until October 1978 there was no separate bank account for the State union. Before thet time all money received by the Sydney branch was paid into the one bank account. His Honour found that the meetings held were meetings of the Sydney branch of the federal organisation and that contrib- utions paid by members were collected on behalf of the organisation,

Matters began to change from the beginning of 1977. Separate meetings began to be held. In 1978 new rules of the State union were registered with the State Industrial Registrar and generally the Sydney branch officials began to act as if there were in existence a separate State union and as if they were the office bearers of that union. A bank account was opened in its name on 19 October 1978. The new rules providaifor separate and distinct application cards

for admission to the State union, New "OK cards" and

letterheads were approved early in February 1979. At the meeting at which that was done it was decided to set up a branch of the State union at Newcastle.

On 30 January 1979 the committee of manegement of the Sydney branch of the federal organisation dealt with a request by two members to be allowed to resign therefrom. The requests were granted and, at an executive meeting of the State union held on 13 February, 1979, the two former members of tne federal organisation were admitted as members of tne new State union.

The minutes of the Sydney branch meetings show that between May 1979 and August 1979, 264 members of the Sydney branch resigned, The bulk of these members were then admitted to membership of the State union, some through its Newcastle (not the federal) branch. Furthermore, the balance sheet for the Sydney branch of the organisation for the six months ending 30 September, 1979, showed a defacit of $25,382.

The balance in the general fund of the Sydney branch of the organisation as at 31 March, 1979, was approximately $65,000, wnereas the balance in the State union account at that time was in excess of 461,0C0. It w11l be recalled

that the State un1zon account had been opened less than six

After reviewing the evidence to which I have referred and certain other evidence as well his Honour made the following findings:

"It is clear in my view that the evidence shows a tendency by the Sydney officials at or about this time to favour the State Union as against the Federal organization. The evidence supporting this view is the failure to pay capitation fees, the transfering of a large amount of money (:$13,000) from tne incid- ental fund in the tone bank account! to a so-called State Union incidental fund account in late 1977 only a few months before an active move to draft new State Union rules commenced, the assertions that the money in tne 'one bank account! was the property of the State Union only together with claims by the Sydney officials that it was their belief that only employees working under Federal Awards need be members of the federal organization.

I am strongly of the view that during 1977 and 1978 this tendency developed into a concerted plan by Sydney officials, particularly the five applicants who were cnarged, to promote the State Union at the expense of the Sydney Branch of the organization and to destroy or at the least so weaken the Newcastle Branch of the organization that 1t would not be a viable branch. Further, in my view, it was this concerted plan which led to what can only be described as a raid on the membership of the Newcastle Branch in early 1979. If such membership could be significantly reduced tnen it was only a matter of time before that Branch would not be viable.

"of Mr, Bignell they all in fact visited the sites in Newcastle during the times set out in the charges and there and then did request members of the Newcastle Branch of the organization to resign and join the State Union. This opinion is not only based on the background history leading up to the events that occurred early in 1979 in the Newcastle area but on tne evidence of those members who gave evidence that they were so requested to resign from the organization and to join the State Union by the particular Sydney officials as alleged in the charges. The evidence of such witnesses is accepted, Each of those four applicants admitted being at the various sites during the times

as claimed, Each of them has admitted that Mr. Bignell knew they were in Newcastle at that time. I have no doubt that

of those four Sydney officials to the Newcastle area before they left Sydney and not only approved of their actions within that area but ordered ana directed those officials to do what they did. There

1s no doubt that he knew of, and indeed was probably the author of, the roneeed forms of resignation addressed to Mr. Masterson that had been prepared in the Sydney office of the organization and distributed to Newcastle members by the four Sydney officials who visited Newcastle during the relevant

AS earlier mentioned the charges levied against the appellants other than Mr. Cook were heard by the federal executive on 1 May, 1979. Notice of the charges was given to each sucn appellant. Except in the case of Mr. Bignell eacn charge was in similar terms. The charges were said to be laid pursuant to Rule 13(6) and were,

"that being an officer of the Sydney Brench he is guilty

of gross misbehaviour in that he has actively persuaded, encouraged and aided menbers of the Newcastle Branch of our Union to resign from membership of our Union", Particulars were given. Those in relation to Mr. Shooter were thet between 23 February, 1979, and 29 March, 1979, he actively persuaded, encouraged and aided within the area of the Newcastle branch certain named members employed by the Royal Newcastle Hospitel to resign from membership. Particulars given in relation to Messrs. Tyler, Cummins and Waters were different but in each case alleged thet certain named members of the federal orgenisation had been persuaded, encouraged and aided to resign from the membership thereof.

The charges agéinst Mr. Bignell were of gross misbehaviour and gross neglect of duty. In the events that happened the

two charges of gross neglect of duty were not proceeded

with and need not be further referred to. The charge

of gross misbehaviour was in the following terms: "Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he order- ed and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from merbership of

our Union anc he has approved and endorsed their actions in doing so.

The grounds upon wnich I lay these charges ageinst U.C. Bignell are thet between 23rd February, 1979 and 29th March, 1979 he has so ordered and directed the said officers and has approved and endorsed their action in carrying out those orders and directions."

On 10 April, 1979, the general secretary wrote to each of the five appellants against whom charges had been laid seniing a copy of the charge. He informed each such appellant thet he had been directed by the federal executive to summon him to a meeting of the federal executive to be held on 1 May, 1979, "to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not be expelled from member- snip of the Union pursuant thereto". The letter concluded by saying that the fullest opportunity to present his case and call evidence would be given,

The letters written by the general secretary were not

answered vorior to 1 May, 1979. Tne executive met on that

day and decided to proceed with the charges. Mr. Cummins was the first to be dealt with. The minutes of the meeting show that he appeared, that the charges against him were

read and that he admitted that he had received a copy thereof. Mr. Cummins then presented a letter dated 1 May, 1979. The

"I refer to your letter of the 10 April and the enclosed charge made against me by R. Masterson. I wish to object to the laying of this charge and to apply for an adjournment of the hearing of it upon the following grounds:-

2. Iam an elected officer of the Sydney branch of the union and I have not been charged under any other rule of the union which complies with the act.

3. I deny that I am guilty of misconduct and that I actively persuaded, encouraged or aided members to resign from the membership of the union.

4, I deny the validity of all alterations to the rules purported to have been made since and including the 1975 conference and and/or (sic) council of the union,

I request all particulars as to the manner in which I am alleged to have carried out the actions referred to in the charge laid against me.

I require an adjournment 1n order to consider the particulars referred to above and to prepare my defence,

%I have been given insufficient time to adequately prepere my defence,

I intend to challenge the validity of the rules referred to 1n your letter of the 10th April and the charge of the 30th March and I request an adjournment of the hearing of this charge until

" the validity of such rules has been decided by the court.

An up to date copy of the rules of the union incorporating the alleged amendments made since and including the 1975 conference has not been made available to me,"

The meeting considered the letter. The request for an adjournment was rejected. Mr. Cummins said that he would only remain at the meeting if the other officials charged were 1n attendance. His request was refused and Mr. Cummins left the meeting. There then followed appearences by Mr, Tyler, Mr. Shooter, Mr. Waters and Mr. Bignell, each of whom presented Jetters similar to that presented by Mr. Cummins. The proceedings in relation to each took a simileér course to those involving Mr. Cummins. Each left the meeting after tabling his letter and the executive had determined to proceed with the charges.

The proceedings continued during tne balence of 1 May, 1979, and were adjourned to 2 Mey, 1979, when they were con- cluded. On that day resolutions were passed determining that each of the appellants other than Mr. Cook be dismissed from his office and expelled forthwith from membership of

The Amendment_of the Rules It 1S common ground between the parties that the rules

in tke form in which they were in 1976 did not permit the

executive either to dismiss from office or expel from membersnip. In the submission of the respondents, however, this problem was overcome by amendments to the rules made

an 1977 and 1978. The first submission of the appellants

1s that the threshold emendment purported to nave been made to the rules which, in the contention of the respondents, enabled later amendments upon which they rely to be made,

was invalid. In order to understand the argument it 1s necessary to set out in full tne provisions of Rule 28 of the rules as tney were 1n 1976, The rule wes as follows:

1. The Rules of the Union shall not be amended except on a resolution carried by a majority of tne Council.

2. Any member desiring to submit to the Council any proposal to amend the Rules must first submit such provosal to tne meeting of nis Branch specially convened for the purpose.

3,. If such proposal be avoroved by a majority of the members present at such meeting it shall be forwarded to the Head Office for submission to the Council.

4a. The General Secretary shall prepare an agenda of any such vroposals anc forward copies of same to all Branches, not less than six (6) weeks prior to the Council meetings to which such proposals are submitted.

5. The Council may at any time make or amend any Rules so thet the Rules of tne Union may comply with the requirements of the Commonwealth Corciliation and Arbitration Act, or any similar State Act."

It 1s to te observed that the power to amend the rules

was intended to be vested in the Council - see sub-rule 1 and

Roots v. Mutton (1978) 32 F.L.R. 15 at p.18. In Roots

v. Mutton the view was taken that the power of the council to amend the rules was an implied power. There is to be found in Rule 22 what seems to be an express power - see sub-rule 6(4). Apparently that provision was not in

force wnen the events which concerned the Court in Roots v. Mutton occurred. Be that as 1t may, there 1s clear power in the council to amend the rules. The question of whether that power is implied or express is of no consequence for the present proceedings.

It 1s also clear that as the rules stood until the purported amendment to which I shall shortly refer, the power of the council to amend did not arise until the procedure provided for in sub-rules 2, 3 and 4 had been completed. To put the matter another way, counc1l's power was conditioned on that procecure being carried through. The power vested in the council by sub-rule 5 was a power conferred upon 1t independently of the procedure provided for in sub-rules 2, 3 and 4, In my opinion it was a power which it might exercise of its own motion; but, of course, it was limited to the matters specifically referred to 1n sub-rule 5.

In making that statement I have taken into account a sub- mission made by counsel for the respondents that a later amend-

ment relied upon by him as conferring power on the executive to

dismiss from office (not power to expel from membership) was within the council's power to pass under Rule 2&.5 in its 1976 form. That was because, so it was submitted, the amendment was made so that the rules might comply with the requirements of the Act. The amended provision is to be found in Rule 35.10(d)(i11) added in 1978. It provided that the executive should have power to dismiss from office any officer found guilty, inter alia, of gross misbehaviour, It is true that the words used conform with those of s.133(1)(f) of the Act earlier referred to. But there were already provisions in the existing rules which operated to prevent dismissal from an office otherwise than upon the grounds mentioned in the section, see Rules 20A and 22.6. The new Rule 35.10(d)(iii) was not passed so that officers might only be dismissed from office if they were guilty, inter alia, of gross misbehaviour, It was passed in order to vest the power of dismissal from office in the executive as well as in the branches. That was tne purpose also of Rule 35.10(») which, subject to certain submissions of counsel for the appellants, purported to vest in the executive the power to deal with charges against members. In my opinion it was not within the power of the council, pursuant to Rule 28.5 in its 1976 form, to amend the rules so as to empower the executive to dismiss from office.

I return to the submissions of the appellants which involve the consideration of the earlier provisions of Rule 28, In the submission of the respondents the procedure

provided for in sub-rules 2, 3 ana 4 was carried through.

A proposal, so it was contended, was submitted to a meeting of the South Australian branch "specially con- vened for the purpose", The proposal was approved by a majority of the members present at that meeting and the general secretary prepared an agenda of the proposal and forwarded copies of it to all branches within the time limit provided for in sub-rule 4, In the submission of the appellents, although the proposal was submitted to and approved by a meeting of the South Australian branch, the meeting 1n cuestion was not, within the meaning of sub- rule 2, a meeting "specially convened for the purpose",

The uncontested evicence discloses that the annual general meeting of the South Australian brancn was to be held on the third Wednesday of June, 1977. The annual general meeting was,as a matter of practice, held each year on tnat day. The practice was in accordance with the provisions of Rule 60.3 which provided that the annual meetings for the reception of the balance sheet and financial statement snould be held on the last meeting night in June of each year. Rule 60.4 provides that notice of all special or general summoned meetings shall be by advertise- ment 1n a daily paper or by"summon notice"forwarded at least two days prior to the time of the meeting to each member at the address lest recorded by the secretary or

Notice of the annual general meeting was sent to each member by the inclusion of the notice in a publication of the South Australian branch known as the "Bulletin". On the front page of the Bulletin for June 1977 was prominently displayed a notice in the following form:

" - ANNUAL GENERAL MEETING - WEDNESDAY, JUNE 15TH, 1977. UNION OFFICE, TRADES HALL, ADZLAIDE. 7.30 P.M. BUSINESS:

1. MINUTES

2. RECEPTION OF BALANCE SH&ET AND FINANCIAL STATEMENT,

6. ANY OTHER BUSINESS. " On the second and third vages of the Bulletin were set out proposed amendments to the rules under a statement which sald, "The Branch Committee recommends the following Rule changes to be included on the Agenda of the Federal Council Meeting to be held in Newcastle on 19 September, 1979". Amongst the proposals was an amendment of Rule 28 which involved the deletion of all words in sub-rule 5 which

followed the words "the Council may at any time make or amend

any Rules", Tne effect of this amendment if ultimately

passed by the council would have been to confer upon

it power itself to amend the rules, such power not being conditioned at all upon the procedure provided for in sub- rules 2, 3 and 4. I make that statement not unmindful

of a submission to the contrary put by counsel on behalf of the appellants. Notwithstanding that submission, I am satisfied that the intention of the draftsman was to give the council itself power to amend the rules without there being the need for tne procedure provided for in the earlier sub-rules. That procedure was to remain as a means whereby a member of a branch might set in train a procedure for the emendment of the rules. But council itself was to be able to act without that vrocedure being carried through. It follows that the amendment which was

In the respondents! submission the meeting was specially convened for the purpose referred to in sub-rule 2. Spec- ific notice was given of an intention to propose amendments to the rules and the terms of the actual amendments were

included in that notice. In the submission of the appellants

Fo She en A Freee LTE eee we ~ end tate eg Es ehh tee op hae en pe aan Pret ee pm a ORI gE te ep AS tr AP mali ale eta nha ae a EL,

that submission did not give effect to the use in the sub-rule of tne word "specially". In this respect counsel for the appellants referred us to a number of other provisions of the rules where expressions of this kind were used in contradistinction to expressions which included the words "general" or "generally". Thus

Rule 13.3 provides for "a special summoned meeting of

tne Branch" to deal with an appeal by a member against

the decision of a committee of management of the branch

to impose a fine. Rule 27 uses tne phrase "specially called for that purpose" in relation to meetings of branches called for the purvose of expressing disagreement with a decision of ccuncil. Rule 44.1(b) provides for a meeting "specially summoned for the purpose" in relation to the approval of industrial agreements, Rule 51.2(viii) provides for "a special summoned meeting of the Branch" in another case where there 1S an appeal from a committee of management of a branch to the branch itself. Rule 62 provides for the making of rules by branches. Such rules may be made only at "a meeting specially called for the purpose", Finally, Rule 65.4 which is in a rule dealing with standing orcers enables a branch by resolution "carried

at a special meeting called for that purpose" to fix an

allotted time for all meetings during which standing orders are considered to be automatically suspended.

The distinction between special and general summoned meetings 1s Grawn in Rule 60.4 tc wnich I have referred. Rule 60.5 provides that the committee of management is to have power to call a special meeting for any time or at any place. The chairman and secretery are obliged to convene "a special summoned meeting" of the branch members at the written request of any number of financial members which 1s to te not less than the number required to con- stitute a quorum of such meeting. Rule 47.2 provides that tne business of eeck branch snall, "subject elways to the review and control of a Special or General Meeting of the Eranen or of the Council" be conducted by a comn1ittee of management as therein constituted.

Another distinction which is drawn - see Rule 66.8 - is between ordinary meeting nights and summoned meeting nignts,. On the other hana there does not apvear to be any provision, apart from tnat contained in Rule 60.3, 1n which one finds ordinary meeting nights provided for. Rule 60.3 seems to proceed upon th: assumption that there are regular meeting nights (perhaps more then one) each month. But

nowhere in the rules is any such provision tec be found.

Be that as it may, the provisions of the rules earlier mentioned manifest an intention on the part of the draftsman to draw a clear distinction between special and ordinary or general meetings.

In the expressions used in the rules there are to be found the words "called", "convened" and "summoned", I do not think that the draftsman - no doubt there were many draftsmen over tne years - intended any difference of mean- ing to apply in relation to their use. The words, according to standard dictionaries, may be synonyms, and I think that is how they should be interpreted in this context.

The question then is whether tnis meeting was, within the meaning of Rule 28.2,"specialiy convened for the purpose". The purpose referred to is the purpose of receiving and dealing with the submission by the member of his proposal to amend the rules, Was this meeting specially called for that purpose? Plainly it was a meeting convened for a number of purposes, one of which was to consider the proposal to amend the rules. But that is not enough to enable the conclusion to te crawn that the meeting was specially convened for tnrat purpose. It was the respon-

dents! submission that the meeting was specially convened

for the purpose because of the specific mention in the notice of the business of the meeting of the item "Proposed Rule Change". A fortiori was that the case when the terms of the proposed rule changes were included as part of tne notice of the meeting. The fact that other business was included on the agenda was not to the point, nor was the fact that the meeting was held on en ordinary meeting night and was the annual general meeting of the branch. A view that the business of amending the rules must be the only business dealt with at a meeting would give to the rules a technical construction and concentrate over much on form rather than substance. What real difference could there possibly be between doing what was cone and holding a separate meetin; convened perhaps for an earlier or a later time on the same day as that on which the annual general meeting was held.

Counsel for the apoellants concentrated upon the fact tnat the lenguage was of the draftsman's, and thus the organisation.'s,own selection, Effect had to be given to it. A clear distinction between the two classes of meeting was drawn. On no basis could it be saiaq thet the meeting

was specially convened, The arguments of the respondents

really sought to transfer the word "specially" away

which the meeting was convened to consider. If that

expressed differently. It would have empowered a general meeting to approve a proposal to amend rules provided notice of the proposal was given beforehand.

That was a very different kind of provision. The intention was that a meeting was to be called at which

the question of amending the rules was to be the principal, 1f not tne only business,before the meeting. To append such a question to the list of items of business at an annuel general meeting was to ignore the plain language which had been used. In the consideration of the problem there had to be taken into account the importance of making amendments to the rules and thus to the constitution of tne organisation. The power to amend was vested in the council, but 1t could only act if the provisions of sub-rules 2, 3 and 4 were followed through. That was the way in which the rules provided for the general body of membership to participate in the process of amendment

and to be given notice of any proposals for the emendment

of the rules. Thus a fundamental question of substance was involved. The appellants' approach was not at all technical.

The question 1s one of construction and of impression. Tne considerations are exhaustively stated in the compet- ing submissions of the parties. After due reflection I heve decided that the appellants! submissions are to be preferred. I am of that view for tne reason thet in no sense could it be said that the matters upon which the respondents rely disclose thet there was anything special atout the convening of the meeting. The meeting was con- vened for the relevant purpose; but it wes not specially convened, Including notice of the proposal in the notice of the meeting was not sufficient for that purpose. That would have needed to be done if the meeting were one simply convened for the purpose. what was reguired was a special meetins to deal with the proposed changes, a meeting especially or particularly called for that purpose. This

It was then submitted by counsel for the respondents that insofar as the rule required a specially convened meeting it was directory rather than mandatory and the-e

had been a substantial compliance with it. In Wilson v.

Devereux (1980) 40 F.L.R. 223,I had occasion to say that

until I read certain authorities which are referred to

in my judgment I had some reservations in thinking that

the rule of construction upon which the submission is based could have any application to an instrument which

was contractual rather than legislative in character - see

pp. 226-227, However, authorities there referred to and

otners cited to us in the present case establish that it

1s now too late to take the view that the rule of con-

struction or interpretation which is relied upon has no

application to cases of this kind. Indeed tne legislature

itself has, by implication, proceeded upon the basis that

In the submission of counsel for the apvellants the matter was concluded against the respondents by the decision of this Court 1n Roots v. Mutton (supra). That was a case in which the rules or the subgect organisation were in question. Amongst others the provisions of Rule 28 arose directly for consideration. In Roots v. Mutton the Court, for reasons there mentioned, was unable to take into account the provisions of Rule 22.6(d) earlier referrec to. But it held that there was in Rule 28 an

umpi1ed power in the federal ccuncil to amend the rules.

It further held that the fact that the power was implied rether than express was in itself a strong indication

that the provisions of the rule "which not only prescribe the procedure for the exercise of the power but form the very basis from which the existence of the power is imolied are mandatory ratner than directory"(pp.18-19). After further reference to the provisions of the rule the Court continued (p.19):

1s a more fundamental reason for construing the procedural requirements contained in sub-cll.(2), (3) end (4) of r.28 as mandatory rather than directory. Underlying these provisions is the obvious philosophy thet, apart from the case where amendment is necessary to comply with legislative requirements, amendments to the rules of the union should have a basis in the membership itself. The initial promoter of an amendment to the ruies is seen as acting in his capacity as a member of tne union rather than es an officer or as a member of the federal council or of the committee of a brench o*° the union. The proposed amendment must, if 1t

is to be submitted to the federal council, be approved by a majority of the members of the branch to which the relevant member belongs at a meeting specially convened for the purpose of considering it. It cannot be dealt with by the federal council unless notice that 1t 1s proposed to consider it has been forwarded to all branches of the union not less than six weeks prior to the relevant meeting of the federal council. The requirement of notice to all branches is clearly designed to ensure that, except where the pvrovesed atendment 1s to meet legislative requirements, no emendment will be made to the rules of the union without the members of the union being, at branch level, given the opportunity of considering

views known in relation to it. Since branches meet monthly, six weeks' notice is designed to ensure that each branch will meet after it gets notice of the proposed amendment and before the council meets."

The decision in Roots v. Mutton was followed in another

decision of this Court, Morris v. Federated Liquor and Allied

Industries Employees' Union of Australia (1978) 35 F.L.R.60, where the Court said (p.64):

"Mr, Laurie (of senior counsel for the Union) conceded the relevance of the principles enun- ciated in Roots v. Mutton but submitted that, notwithstanding the overall mandatory nature of the provisions of r.39 with relation to procedures, there was room for a discretionary approach with respect to some of those procedures. He urged that in the light of the comparative numbers of the membership attached to each branch it would be proper to act upon the view that the requirements of r.39 were satisfied in that the procedures had been complied with in the majority of the branches including the New South Wales branch which was by far the largest branch in the organization.

We find ourselves unable to accept Mr. Laurie's submission for reasons which are set out in the decision of the court 1n Roots v. Mutton. Those reasons reflect the view that amendment of the rules of an organization is a matter going so funda- mentally to the relationship between members and between branches that in the absence of clear provision to the contrary, there must be strict compliance with specified amendment procedures. Accordingly, part (a) of the rule nisi made on 26th January, 1978, (V No.2 of 1978) must be mede absolute and it becomes unnecessary to deal with the matters raised in part (b) thereof."

The authorities to which I have referred show, in my opinion, that prcvisions for the amendment of rules, insofar

as they lay down procedures which are to be followed, will

almost invariably be construed as mandatory rather than directory. To some this may seem an over technical approach. But the organisations are intended to be democratic institutions (cf. s.140(1)(c) and s.2(f) of the Act). The making of rules or the alteration thereof may fundamentally affect the membership or sections of it. If the membder- ship lays down a procedure to be followed, it should be respected, To give such a provision a directory rather than a mandatory effect might well, in a given case, weaken the control which the membership should desirably have over such a fundamental matter.

For these reasons I would reject tne submission that the provisions of the rule, at least insofar as they refer to a meeting specially convened for the purpose, should be given a directory rather than a mandatory effect. My con- clusion in tnat regard makes it unnecessary for me to consider the further question of whether there had been

It was submitted on behalf of the respondents that the rule was nevertneless validated by the operation of s.171B of the Act. In effect that section provides that all acts done in good faith by, inter alia, a branch of an organisation shall be valid notwithstanding any invalidity that may

afterwards be discovered in, inter alia, the alteration of

a rule of the organisation. However, one needs to take into account the provisions of sub-section (6) of the section which is as follows:

In the submission of the respondents tnat provision

did not arise for consideration in relation to the amend- ment of Rule 28.5 because such amendment had no immediate or direct effect in relation to the expulsions and dismissals which are here in question. The amendment, so it was sub- mitted, was remote from the acts of the executive which were called into question. I would reject this submission because of the wiae words of sub-section (6) and the specific refer- ence 1n sub-section (1) to the alteration of a rule of the organisation. To my mind it is clear that, although the section was to operate to give validity to a wide range of acts which otherwise would have been illegal, it was not to affect membership or the imposition of a penalty. If expulsion or the imposition of a penalty could only be justified by reference to a rule not lawfully made or altered, the section would not operate to cure the defect. I would add that the fact that the Industrial Registrar, pursuant to s.139 of the Act, 1ssued a certificate of registration of the alteration

cannot give to the rule, as regards these appellants, a

I should say, before passing to the next matter for consideration, that it was common ground, that the imposition of a penalty included a dismissal and that the acts relied upon, that 1s the purported steps taken to amend the rule, were done in good faith. In my opinion counsel were correct in the common view which they put about these

Then reliance was placed by counsel for the respondents upon the provisions of s,171F. That is a provision not conditioned upon good faith which, upon the expiration of four years from, inter alia, the making or purported making or the alteration or purported alteration of a rule of an organisation provides that such rule shall, "for all purposes, be deemed to have been done in compliance with the rules of the organisation or branch", Sub-section (2) of the section is as follows:

the 4 years referred to in sub-section (1)". There 1s no provision corresponding to sub-section (6) of s.171B.

Section 171F is, as is also s.171B, made subject to

"(1) Where, upon an application for an order under this section, the Court is satisfied that the application of section 171B or section 171F

to an act would do substantial injustice having regard to the interests of the organization, members or creditors of the organization or persons having dealings with the organization,

and, where such a declaration is made, section 171B or section 171F, as the case may be, does not apply, and shall be deemed not to have applied, in relation to the act referred to in the declaration.

(2) The Court may make an order under sub- section (1) on the application of the organization, a member of the organization or any person having a sufficient interest in respect of the organiz- ation."

I should pause to say that the sections to which I have referred are all contained in Part IXA of the Act and were inserted by the amending Act of 1974 (No.89 of 1974, s.16). For present purposes it 1s unnecessary to consider further sections in Part IXA, but I should mention that the Court, by s.171G, is given certain powers to make orders in respect of the "application of section 171B or section 171F". If a declaration under the section were made, s.171F would have no

application. It could then not operate to validate the amendment

to the rule in question here. But no question of any application

under that section arises for consideration on this appeal.

The applicants by their counsel expressly declined to make such an application, at least pending the outcome

The purported alteration to Rule 28.5 was made at a meeting of the council held on 19 - 23 September, 1977. The amendment was certified by the registrar pursuant to s.139(4) of the Act on 1 February, 1978. The four year period provided for in s.171F concluded no later than 1 February, 1982. In my opinion the better view is that it concluded on 23 September, 1981, four years after the last day of the federal council meeting at which the purported amendment was made. In either event the period has now expired.

It was submitted on behalf of the appellants that the position was saved by the operation of sub-section (2) which I have earlier quoted. Support for that submission is to be found in the judgment of Sweeney and Evatt JJ. in Egan v. Harradine (1975) 25 F.L.R. 336. Their Honours said (p.381):

"It was argued that the period of four years referred to in the section was to be ascertained at the date of the decision. The contrary view was that it was to be determined as at the date of institution of proceedings. It is true that s.141 in terms makes the periods there referred calculable as from the institution of proceedings and s.171F has no such express language. In con-

sidering a statute amended so frequently and in such varying circumstances as this we are able to

If the first view were adopted then in any proceedings the logquacity and stamina of counsel or the dilatoriness of the bencn (any or all of which we concede may exist) could bring about cases where there was a good cause of action at the commencement of proceedings but which disappeared during the hearing on preparation of tne decision.

We prefer and adopt the second view (cf. Lynch v. McLachlan ((1962) 3 F.L.R. 59). If we were ox tne contrary view we would be dis- posed to exercise the powers under s.171G."

In my respectful opinion the decision in Lynch v. McLachlan does not bear on the question of the meaning and operation of sub-section (2). I would also say, with very great respect, that no reasons for the view which their Honours have expressed are given.

In the submission of counsel for the respondents, the opinion of their Honours was nevertheless correct. The legislature ought not to be taken as having intended to disturb existing rights, if proceedings to protect or enforce those rights had been commenced within the

ability and practicability of such a solution to the

problem, but it is not in my view one which gives effect to the language of the statute. If the view put forward had been that which the draftsman had intended, he would have said so. There are many statutes in which language of that kind is in fact used.

I have considered whether we should not regard what was decided in Egan v. Harradine as binding upon us. I do not think that a court constituted of three gudges should lightly depart from a previous decision. But the decision is a decision of the Australian Industrial Court rather than this Court. No reasons are given for it and it 1s plain that if the learned judges had been of a different view they would have overcome the problem by resort to s.171G.

In my opinion that is how the present problem could have been dealt with. This was a matter discussed in argument but counsel for the appellants would not at that stage make an application under s.171G. I should add that the presence of s,171G in the legislation supports the view that s.171F(2) was to be given the construction which I think it has. If proceedings were

delayed for any of tne reasons mentioned in Egan's case

the Court had power to overcome any injustice that would be occasioned by the operation of s.171F. It had control of the matter and could, in a proper case, always modify the period so that justice might be done.

My conclusion so far is that although the mandatory provisions of the rules in relation to amendments were not carried out, it is now too late for the appellants to complain of invalidity on that ground. In default of an order being made under s.171G, the time has passed. But there is a further submission based upon the provisions of s.140(1)(c) of the Act which must be considered. Before I come to that submission, it is convenient to put out of the way a further matter relied upon by counsel for the respondents in order to show that the provisions of

The South Australian branch of the organisation was not the only branch at or about this time to hold a meeting at which amendments to the rules were proposed. On 24 May, 1978, there was held what was described as a special general meeting of the Western Australian Branch. The notice of the meeting

said that a special summoned meeting was called prior to the

items to be forwarded to Head Office for the Special Federal Council meeting to be held in Melbourne on the 8th August, 1978". At the meeting there was passed a resolution recommending the amendment of the rules in

a large number of respects. These included amendments to Rule 27 (previously Rule 28). If the amendment had been passed the rule would have remained as it was sub- ject to sub-rule 5 reading, "The Council may at any time make or amend any Rules".

I am of opinion that the meeting which was convened was not specially convened for the purpose of amending rules. There was no reference in the notice to the business of the meeting. No one reading the notice would understand that there were to be amendments proposed to the rules.

The resolution passed at the May 1978 meeting of the Western Australian Branch led, eventually, to substantial alterations to many of the rules purported to be made at a meeting of the council held on 10 August, 1978. Those amendments were based upon a document prepared for the council meeting which became known in the proceedings as

Counsel for the appellants conceded that once one concluded, as I have done, that the meeting of the Western Australian branch held on 24 May, 1978, was not a meeting specially convened for the purpose within the meaning of Rule 28.2 of the old rules, he could not rely successfully upon that meeting as fulfilling the require- ment of the rule.

in the course of his Judgment the learned trial judge concluded that the council had power to effect the amend- ments which it purported to make at its meeting held on 10 August, 1978, because none of the alterations made any substantial change to the rules as they previously existed. It 1S unnecessary to consider this part of his Honour's judgment in detail. It was not relied upon by counsel for the respondents who disavowed having made any submission to the effect of what the judgment contains. It is enough to say that with great respect to his Honour the changes purported to be effected at the August 1978 meeting of the council made very substantial changes to the rules. Further- more, in saying what I have, I am not to be taken as expressing the view that even the most formal amendments -

I anstance the renumbering of rules - could be made by a

council such as this as a matter of executive action. The procedures laid down by the rules for the proper amendment of them need to be followed through, whether the amendments are on matters of substance or on matters

I return then to the appellants' submission based on s.140{1)(c) of the Act. It provides that the rules of an organisation shall not impose upon applicants for membership or members of the organisation conditions, obligations or restrictions which, having regard to the objects of the Act and tne purposes of the registration of organisations thereunder, are oppressive, unreasonable or unjust, Section 2 of the Act provides for its chief obgects. Paragraph (f) includes as one such object, "to encourage the democratic control of organisations .... and tne full participation by members of such an organisation

I have earlier accepted the respondents' submission that the rule (Rule 28.5 - later Rule 27.5) as amended purported to empower the council of its own motion to amend the rules of the organisation, It could act in this regard without there having occurred a meeting of one of the

branches provided for in Rule 28,2 and the consequent notice

to other branches of the proposal for amendment as contemplated by Rule 28.4. It was the appellants' submission that Rule 28.5 as so amended infringed s.140(1)(c) because it imposed upon members conditions or restrictions which, having regard to the objects of the Act stated in s.2(f), were unreasonable, if not also oppressive and ungust. That was because the new rule failed to encourage the democratic control of the organisation and the full participation by members in its affairs. The rule dealt with the fundamental question of tne amendment of the rules, and thus the constitution, of the organisation. As it stood until the time of the amendment, the rule at least provided for approval of the proposed amendment by one branch and knowledge by each other branch before there could be an amendment except in the limited area provided for in the old Rule 28,5. Once power was vested in the council to amend the rules without reference to the branches or the general membership, wholesale and fundamental amendments could be made by the council which consisted of no more than 14 members (three each from New South Wales and

Victoria and two from the remaining States). Not all

these needed to be present at a meeting at which rules Iight be amended. By Rule 25 a magority of the representatives - eight persons ~ constituted a quorum. The evidence discloses that the membership of the organis- ation comprises several thousand persons.

Counsel for the respondents sought to overcome these submissions in two ways. He said that it would be unlikely that the delegates from each branch who were members of the council would not know of their particular branch's attitude, or if they did not, would deal with the matter before obtaining the views of the branch committee of management. Then reference was made to what were described as the plebiscite provisions contained in Rule 27, that is the old Rule 27. That rule provided that all decisions of the council and/or the council executive should remain in full force unless and until annulled by the council. The proviso to this rule was as follows:

the Council and/or Council Executive is disagreed with by a majority of the members of any two Byanches in any two States, present at a meeting of the respective Branches specially called for that purpose, the question shall be submitted to

a referendum of the members of the Union. The decision of the members of the Union at such referendum shall supersede the decision of the Council and/or Council Executive on such question",

Having taken the matters relied upon by counsel for the

respondents into account I do not think they overcome the

force of the appellants' arguments on this question. it is true that delegates, members of council, dissatisfied with a decision to amend rules could take the matter back to their branches and trigger the referendum procedure provided for. But that presupposes that the delegates are reasonably in tune with the views of the membership. The procedure which it was purported to change ensured that at least all the members of one branch received notice of the proposal. At least the committees of management of all other branches also received notice of it. Under the present proposal rules might be amended without any notice to any but the members of council. It 1s true that they would report to their respective brarches the results of the meeting of council and 1t 1s also true that if fundamental amendments to rules were made the word would soon get around. But by tnen the amendments would be made. The apathy of members of organisations, no less than of other associations in many walks of life in this community, is well known. It is all too easy for people these days to have things done for them. They accept the situation because they prefer it that way, or because they cannot be bothered doing otherwise or because they feel it is useless to attempt to do so.

The linchpin of the respondents! submission that the amendment does not contravene s.140(1)(c) is the plebiscite provisions of Rule 27. But that, like any other rule, is

capable of amendment. If the council were able to amend

the rules, an amendment deleting this provision could be

passed, Council would then have full and unfettered control over tne entire process of rule amendment.

The Act speaks of the encouragement, not only of demo- cratic control, but also of full participation by members in the affairs of an organisation, Its use of the word "encourage" does not suggest that any absolute standard is to be applied. Rather 1t 1s concerned to see tne progressive attainment of the objects which it mentions. This organisation, until the amend- ment, had, in relation to the amendment of rules, a degree of participation by members. That degree of participation has been seriously reduced by what the South Australian amendment purported to achieve. The amendment, in my opinion discourages full participation by members in an important affair of the organisation, namely the amendment of 1ts constitution. I have no hesitation in saying that, in my opinion, tne rule as pur- portedly amended infringes s.140(1)(c). I do not need to decide whether the new provisions are oppressive or unjust; I am clearly of opinion that, having regard to the matters to be taken into account in the paragraph, they 1mpose upon members conditions and restrictions which are unreasonable. I am forti- fied in that view by the strength of the dicta earlier quoted (pp.32-33) from the judgments of this Court in Roots v. Mutton and Morris's case. The Court was there concerned with the question of whether the steps provided for in the rules of the organisations for the amendment of those rules were mandatory or directory. But in a general way the considerations mentioned

by the various judges apply with equal force to this question

In the course of his submissions counsel for the respondents relied upon the provisions for notice of a

special meeting of a branch - Rule 60.4. The rule provides

that notice shall be given by advertisement in a daily paper or by notice forwarded at least two days prior to the time of the meeting. Either is sufficient. Counsel referred to the rule for the purpose of showing that very many members might not in fact receive notice of a duly convened meeting. Few people read the Public Notaces columns of their daily newspapers. I agree that that is so. But I do not think that reference to the rule assists the respondents! case. In my opinion so much of the rule as enables notice of branch meetings to be given by the mere insertion of an advertisement in a daily paper also offends the provision of the Act now under consideration. I think also that there is a serious question as to whether two days notice of a meeting 1s sufficient. I express no final conclusion on that question but it would seem to be a sufficient compliance with the rule if notices are posted two days before the meeting. If that is the meaning of it, I think a serious question arises as to its validity. For the reasons I have given I am of opinion that the amendment to Rule 28.5, notwithstanding the operation which should be accorded s.171F, infringes s.140(1)(c) of the Act, I should add that s.171F does not cure the invalidity because 1ts only relevant effect 1s to validate alterations to rules which were not made in compliance with the existing rules, The section does not operate

to validate an amendment rendered invalid by s.140(1).

Consequences of Failure of Rules to Comply with s.140.

It is next necessary to deal with submissions by counsel for the respondents that the rule, notwithstanding that it does not comply with s.140(1)(c), remains valid and effective. The principal ground of this decision was that the case was not one where a rule contravened sub-section (1) but rather one where the rules of the organisation contravened sub-section (1) in a specified respect; I refer to sub-section (5D). Alternatively, counsel submitted that the rule also remained valid and effective even if it, or part of it, contravened sub- section (1). The submission was based upon the language of sub-section (5D) wnich provides that an order uncer s.140 may declare that the whole or a part of a rule of an organisation contravenes sub-section (1) or that the rules of an orgenisation contravene sub-section (1) in a specified respect. The consequences will be different depending upon which of the two declarations the Court makes; see sub-section (5G) and, by comparison, sub-sections (7) and (8). I shall refer to these provisions in more detail later on but as Mason J, said in The Queen_v. Dunphy; ex parte Maynes (Maynes' case) (1978) 139 C.L.R. 482 at

1s a particular rule, rather tnan the rules as a whole, which fails to make a provision required by the Act or Regulations".

Of course, if the respondents' alternative submission 18 correct, it would become unimportant to determine which of the two declarations it would be appropriate to make. It would also be unimportant to reach a decision about that matter if, this being an application not under s.140 but under s.141, it were correct to take the view, as counsel for the appellants submit it is, that it is, as between these parties, irrelevant to consider any part of s.140 other than sub-section (1).

In order that these various submissions may be dealt witn it is necessary to refer to some authorities and to the Act, both as it 1s now, and in the form it has taken in

earlier years. The first authority to which I refer is

The Queen v. The Judges of the Commonwealth Industrial Court;

ex_parte The Amalgamated Engineering Union (Shearer's case) (1960) 103 C.L.R. 368. In 1960 when that case was decided

s.140(1) was in similar terms to the present sub-section except for the fact that paragraph (d) thereof (irrelevant for present purposes) was not then in force. It came into force in 1974; see Act No.89 of 1974, s.9. Sub-section (2) of the Act as it was wnen Shearer's case was decided was

"A member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding sub-section",

Sub-section (3) conferred jurisdiction on the Industrial

Court to hear and determine an application under sub-

section (5) provided: "An order under this section may declare that the whole or a part of a rule contravenes sub- section (1.) of this section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order."

The remaining sub-section was sub-section (6) to which it is

The question for determination in Shearer's case was whether s.140 was a valid enactment. It was contended that it was not because it did not confer upon the Industrial Court part of the gudicial power of the Commonwealth. That con- tention was rejected. In the course of their judgments the judges of the High Court expressed opinions upon the meaning and effect of the provisions of s.140. In particular views were expressed about the meaning and effect of sub-sections (1) and (5) and their relationship to one another. These dicta are, in my opinion, relevant to be considered in the

resolution of the present problem. In the course of his

nba amt ST BE SE BCE ag a AS ee ae Dee DRE me name tepteene tp tees Am SED

as limiting by reference to time the effect of a declaratory order. On the contrary its purpose is,

I think, to enlarge the effect which, in the absence of sub-s.(5), such an order would have. What I conceive to be the general effect of the new s.140

to have any rule which possesses one or more of certain specified characteristics. (Some of the rules prohibited would be unlawful without express enactment). Rules which fall within the forbidden classes are void. This, as it seems to me, must be so; I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub-s.(1), they are invalid and void. The question of the validity of such a rule may arise in a wariety of ways before a variety of tribunals, including the Commonwealth Industrial Court itself. If it does

so arise, it is for tne tribunal before which it arises to determine whether it falls within the forbidden classes, and the decision can affect only the parties to the proceeding. This would be the position, if sub-s.(1) stood alone. But sub-s.(1) does not stand alone. It is followed by sub-ss.(2) and (3), which give to the Commonwealth Industrial Court a special jurisdiction to determine, on the application of a member of an organization and after hearing the organization, the question whether a particular rule 1s among those prohibited and invalidated by sub-s.(1). But, in the absence of

rule contravenes sub-s.(i) would still have binding effect only as between the applicant and the organiz- ation, Then sub-s.(5) comes in and gives a wider effect to the order by saying in effect that for all purposes and in all proceedings the rule is to be deemed to be void. But the order is to have tnat final and conclusive effect only as from the date of 1ts making. It is not to affect anything done in the past, or any decision given by any tribunal in the past. The extension by sub-s.(5) of the effect of a declaratory order does not affect the character of the process which leads to the making of tne order, or the character of the order. Tne process is a4 judicial process and the order is a judicial order."

That view was shared by Menzies J. and by Taylor J.

who agreed in his gudgment (p.385). Menzies J. said (pp.387-388):

"In the first place, sub-s.(1) does lay down mandatory - although in some respects general - standards to which each rule of an organization must conform as a condition of its validity. The language is imperative and I find it impossible to treat the sub-section as nothing more than a direction to the registrar or to anyone else about what rules must not contain if they are to be acceptable as rules; the sub-section 1s a statement that the rules of an organization shall not be of a character specified and any infringement of the prohibition therein contained must, it seems to me, result in invalidity from the time of the coming into force of the section. Sub-section (1) is, I think, a valid exercise of the power given to the Parliament by s.51 of the Constitution. In the second place, the Court is given jurisdiction to declare whether or not a particular rule does contravene sub-s.(1) and any order that it makes - it seems to me - binds the parties to the litigation, but it binds no one else. The part played by the Court is, therefore, judicial and the provisions conferring its Jurisdiction stem from Pt.I1II of the Constitution, This is so notwithstanding the express power to grant an adjournment to give an organiz- ation an opportunity to remedy a contravention of the Act; such a discretion 1s not something foreign to the exercise of judicial power. Finally, when the Court has made an order declaring that there 1s a contravention of sub-s.(1), 1t is sought by the section to effect a con- sequential result, i.e., by the provision in sub-s.(5) that when the Court makes an order that there is a contre- vention of sub-s.(1), 'the rule, or that part of the rule, as the case may be, shall be deemed to be void

from the date of the order', so that the question of its future validity is no longer a question open in any proceedings before any Court. What is attempted, as I understand it, 1s not to give an order of the Court

inter partes a binding effect as against the world; it is rather to treat a gudicial order as a step in a legis- lative process of invalidating rules for the future whether or not the order was correctly made. The validity of this must depend upon s.51 of the Constitution, but 1t 1s not necessary nere to determine whether what

is attemoted is effective; it 1s sufficient for present purposes to say that the latter part of sub-s.(5) does not andicate that an order of the Court wnich is the occasion for its operation is otherwise than gudicial."

Wandeyer J. left the question oven, it not being necessary 1n his view to decide it (p.389). Kitto J. un whose Judgment Dixon C.J. agreed (p.372) took a different view (p.380), but their view is a minority

one. Between the time of the decision in Shearer's case

and the decision in 1978 in Maynes' case, the provisions

of s.140 underwent substantial amendments, The relevant provisions of s,140(1) were similar. But, so far as they are material,the balance of the provisions of the section were then

"(2) A member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding sub-section or declaring that the rules of the organization contravene the last preceding sub-section in a specified respect.

(3) Subgect to the next succeeding sub-section, the Court has jurisdiction to hear and determine an application under the last preceding sub- section.

(4) An organization in respect of which an applic- ation is made under this section shall be given an opportunity of being heard by the Court.

(5) An order under this section may declare that the whole or a part of a rule contravenes sub- section (1) and, where such an order 1s made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order.

(a) the Court mekes a declaration under this section in relation to tne rules of an organization; and

(b) at the expiration of three months from the date of the declaration, the rules of the organization have not been amended in a manner which, in the opinion of the Industrial Regis- trar, brings them into conformity with the requirements of sub-section (1) as regards the matters that gave rise to the declaration,

the Industrial Registrar shall, after inviting the organization to consult with him on the matter, determine such alterations of the rules as will, in his opinion, bring them into conformity with those requirements as regards those matters.

(8) The Industrial Registrar shall register the alterations so determined by him and thereupon the rules shall be deemed to be altered accordingly."

It is to be observed that sub-section (2) is the fore- runner of the present sub-section (5D) and sub-section (5) the forerunner of the present sub-section (5G).

The principal gudgment in Maynes' case was delivered by Mason J. whose judgment was agreed in by Barwick C.J. and Stephen and Aickin JJ. Murphy J. dissented. The Court was not concerned with the constitutional validity of the section, as it was in Shearer's case, but with a submission that the Industrial Court had exceeded its jurisdiction when dealing with an application under the section. The Court was also concerned with s.133 which is not in question in these pro- ceedings. The material part of the gudgment of Mason J. is

"Section 140(1), (2) and (5) have had a somewhat turbulent history - see Cameron v. Australian

Shearer's Case. The provisions were subsequently amended so aS to overcome limitations revealed by those decisions. Without resorting to the legis- lation in its earlier form and to the interpretation accorded to it by the cases, I now conclude from

the terms of the section that (a) a rule or part of a rule contravenes s.140(1)(a) if it 1s contrary to or fails to make a provision required by a provision

"of the Act, the regulations or an award or if it is otherwise contrary to a law; and (bd) that a distinction must be made between cases in which the whole or part of a parti-~ cular rule contravenes 5-140( 1) and cases in which the rules as a whole so contravene,

It will be seen that s.140(5), which deems a rule or part of a rule to be void from the date of the declaration that it contravenes sub-s.(1), has no application to an order which declares that the rules of an organization con- travene sub-s.(1) 1n a specified respect. When an order is made containing a declaration in the latter form the rules continue to have a valid operation, subgect to action being taken in accordance with sub-s.(7). In many cases it is a nice question whether it is a particular rule, rather than the rules as a wnole, which falls to make a provision required by the Act or the regulations. What is more, it 18 an important question because on its outcome depends the form of order which will be made and the operation of s.140(5)."

I do not consider that Mason J. intended anything he said to affect what had been said by the majority in Shearer's case in relation to the meaning and effect of s.140 as it was in 1960. Nor do I think that the inter- vening amendments affect those views. In saying what I have I have paid particular attention to the opening words

of the passage gust cited from the judgment, particularly

his Honour's reference to the amendments having overcome lamitations revealed by the earlier decisions to which he

refers, But his Honour was dealing with an application

under s.140, not s.141 as is the case here. The view I

have formed is, I believe, in line with that formed by

this Court in Egan v. Maher (No.1) (1977) 35 F.L.R. 197.

I refer particularly to the judgment of Northrop J. at

present legislation. The section was further amended in

1977 (Act No.108 of 1977, s.17) substantially to provide

for certain powers conferred upon the Industrial Relations

which provide for these powers. The material sub-sections

"(2) A member of an organization may apply to the Court for an order under this section in respect of the organization.

(5D) An order under this section may declare that the whole or a part of a rule of an organization contravenes sub-section (1) or that the rules of

an organization contravene sub-section (1) ina specified respect.

(5E) Subject to sub-section (5F), the Court has jurisdiction to hear and determine an application under sub-section (2) or (5B).

(5F) An organization in respect of which an appli- cation 1s made under this section shall be given an opportunity of being heard by the Court.

(5G) Where an order under this section declares that the whole or a part of a rule contravenes sub- section (1), the rule or thet part of the rule, as the case may be, shall be deemed to be void from the date of the order."

Sub-section (5B) referred to in sub-section (5E) vrovides

relevant for present purposes. Sub-sections (7) and (8) remain as they were when Maynes' case was decided.

The present form of the legislation 1s not 1n substance different from what 1t was when Maynes'' case was decided. The view I have expressed as to the continuing force of the majority opinions in Shearer's case consequently applies in relation to the present legislation as it did to the legis- lation in the form in which it was at the time of Maynes' case.

The consequence of my opinion for the present case is that, if the rule, as amended, either itself contravenes s.140(1)(c), or, by reason of its inclusion amongst the rules of the organisation, 1t brings about a situation where the rules contravene s.140 1n a specified respect, namely by failing to afford the general body of membership an adequate opportunity to take part in decisions to amend or add to its rules, the amendment is ineffective as between these parties. For reasons earlier given I am of opinion that the rule does contravene s.140(1)(c) or brings about a situation in which the rules as a whole do so in the respect I have specified. It follows that the rule as amended is ineffective, so far as the parties to these proceedings are concerned. AS regards their rights and obligations inter se, the purported amendment did not operate to confer upon the Council power of

its own motion to amend the rules of the organisation.

Such a view obviates the need to decide whether the case falls within the first or the second limb of s.140(5D). In fairness to counsel's submission he did not set much store upon his alternative argument that there was no invalidity if the case were within the first limb of the sub-section rather than the second. It seemed to me that he thought that the strength of the submission lay in the fact that there was manifested an intention that, where the contra- vention was a contravention of the sub-section in a specified respect by the rules as a whole, there was never to be invalidity. In such a case the procedure provided for in sub-sections (7) and (8) would be followed through and the rules changed to conform with the section. In counsel's submission the Court ought not to find invalidity, even inter partes, in the light of such a clear indication of legislative intention. I appreciate the force that such considerations have, but, for myself, I do not perceive any relevant distinction between the two situations. That 1s because, although, in the event of a declaration pursuant to the first limb, sub-section (5G) will operate to invalidate the rule (in whole or in part), it will not do so ab initio. The sub-section

operates only from the date of the order. Here there is

no application, let alone an order, under s.140. The application 1s brought pursuant to s.141. Unless one adopts, as I consider should be done, the approach of

the majority in Shearer's case, the rule as amended would retain validity notwithstanding that it contravened s.140 (1)(c).

It follows that I would regect both the principal and alternative submissions relied upon by counsel for the respondents. Where does that conclusion lead?

Tne application is made pursuant to s.141. By it the appellants seek an order that directions be given for the verformance or observence of the rules of the organis- ation by persons who are under obligations to perform or observe those rules. The rules must be those rules which, at tne relevant time - the date of the purported dismissals and expulsions ~- were valid and effective as between tne appellants and the respondents including the organisation. The starting point for the respondents! contention that they acted lawfully must be that there were un force rules which provided that the executive was empowered to hear and determine charges ageinst officials and members, charges whicn could lead to their dismissal and expulsion.

Such power, if it exists, only exists as the result of

further amendments to the rules passed by the council an reliance upon the power to amend purportedly conferred by the amended Rule 28.5. If that rule is, as between these parties, ineffective because it or the entirety of the rules is in con- travention of s.140(1)(c), the later rules are also ineffective. The rules which the members of the executive are bound to apply are rules which are in accordance with law. The order, if made, will be that they perform and observe rules lawfully in force - not rules which ought not, as a matter of law, ever to have been made. It follows that in my opinion the appellants are right un their contention that the executive had no power to hear and determine the charges or to dismiss or expel the appellants other than Mr. Cook. Unless the respondents are entitled to succeed on discretionary grounds, the

The first question which must be answered is whether the Court has a discretion to refuse relief if the appell- ants have brought themselves within the terms of s.141.

It was the aprellants' submission that we should apply to

its provisions principles which have been enunciated in

numerous cases of which perhaps Julius v. Bishov of Oxford (1880) L.R. 5 A.C. 214 and Ward v. Williams (1955) 92 C.L.R. 496 are the best known - see particularly pp.505-506 of the judgment of the Court in the latter case. Fullagar J. in Shearer's case (supra) considered that those principles should be applied in relation to an application under s.140 of the Act (103 C.L.R. at p.378). No other judge in Shearer's case expressed a view on that matter. Windeyer J. expressly left the question open (p.389).

s.141, This first occurred in The King v. Commonwealth

Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 C.L.R. 141, where Dixon J. (as he was) referred

to the power conferred by s.58E of the Act (s.58E, later renumbered s.81 (Act No.10 of 1947) and later still s.141 (Act No.44 of 1956)). In Barrett's case Dixon J. went

on to say categorically that the power conferred by the section was discretionary (p.169). His view in that regard was confirmed by the Full High Court in The Queen v. Spicer; ex parte Foster (1958) 100 C.L.R. 163. The section had by then become s.141 and the jurisdiction was conferred on

the Commonwealth Industrial Court rather than the Commonwealth

the case when Barrett's case had been decided. The Court said (p.168): "2.6. the Commonwealth Industrial Court is

not bound under s.141 to exercise its juris- diction. It is a jurisdiction which is conferred

in permissive terms and the Court has a discretion. In a case which it thinks unsuitable for the operation of s.141 it may hold its hand so that an application may be made under Part IX",

Part IX of the Act deals with disputed elections in organisations and confers power on the Court (s.165) to inquire into and determine the question of whether an irregularity has occurred in or in connection with an election, That was the particular matter with which the Court was concerned in Foster's case, I do not take what the Court said as an indication that 1t thought that the Commonwealth Industrial Court had a discretion to refuse relief only in cases where it thought 1t more appropriate for an application to be made under Part IX of the Act. Section 141(8) conferring such a discretion in express terms was not then in force. It should be noted that Fullagar J. was a member of the court which decided Foster's case.

the Court has a discretion to grant or refuse relief under

s.141. But in the submission of counsel for the respondents

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have been made to s.141 since Foster's case was decided. In order to deal with the submissions it is necessary

to compare the section as it was at that time with the section in its present form and also to compare both forms of the section with the form of s.140 which hes not undergone any material change since Fullagar J. said what he did in Shearer's case. It is also necessary to have regard to s.144,

The older form of s.141 (previously s.58E and then s.81) was relevantly as follows:

"(1) The Court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order g1ving directions for the performanee or obser- vance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules."

The relevant sub-sections of the present s.141 are sub-sections (1), (1G) and (1H). The latter sub-section refers to sub-section (1E). It provides for an applic- ation to the Court for an order under the section by the

Industrial Relations Bureau. The sub-sections to which

"(1) A member of an organization may apply to the Court for an order under this section in respect of the organization."

"(1G) An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules,"

"(1H) The Court has gurisdiction to hear and determine an application under sub-section (1) or (1E) but, before making an order under this section, the Court shall give any person against wnom the order is sought an opportunity of being heard,"

These sub-sections may be compared with sub-sections (2), (5D), (5E) and (5F) of s.140. Those sub-sections have been earlier set out (p.56).

The form of s.140, subject to amendments to accommodate the powers and functions of the Industrial Relations Bureau, has not changed since Fullagar J., in Shearer's case, which was decided in 1960, said that the Courtts power was not discretionary. However, the form of s.141 has undergone a material change since Foster's case and Barrett's case were decided. Importantly, 1t has been amended to corres-

pond in form and structure with s.140. It is this consider-

ation which counsel for the appellants claimed to be decisive.

the section and, that being so, this Court was bound to follow what was said by Fullagar J. in Shearer's case about a similarly structured section in the same Part of the Act.

I would reject this submission. Notwithstanding the change in the form of the section, I do not think that its provisions, as to matters of substance, are materially different from those of the former s.141 and its predecessors. I would not therefore lightly depart from the views expressed in Barrett's case and Foster's case. Furthermore, I think that there 1s a reason for the different views which have been taken concerning the two sections, different views which were taken by Fullagar J. himself, he being a party to the judgment in Foster's case. That difference 1s, in my opinion, based on the difference between the purposes and objects of the two sections, really their purview. Section 140 is con- cerned to provide for certain standards in the rules of organisations. It empowers a member of an organisation,

and now also the Industrial Relations Bureau, to apply for

an order which may declare either that the whole or a part of a rule contravenes sub-section (1) or that the rules of an organisation contravene it in a specified respect. I have earlier referred to the consequences of the making of one or other of these declarations. Importantly for present purposes neither will result in voidness ab initio. If the contravantion is of the second category no voidness at all results; if it is

of the former category voidness will only result from the date of the Court's order. When Fullagar J. said what he did in Shearer's case there was no second limb of the sub-section corresponding with sub-section (5D) and no provision corresponding with sub-sections (7) and (8). But the fact remained that 1f an order were made under s.140 there could be no voidness prior to the date of the Court's order.

On the other hand in proceedings other than an application brought under s.140 itself, a question of invalidity ab initio can arise. That was the view of the majority of the gucges in Shearer's case. I do not

repeat my earlier discussion of what was there said. The

judgment in Foster's case shows that in one respect it was desirable and necessary for the Court to be able

to stay its hand under s.141l. That was if an applic- ation were pending or were to be made under Part IX of the Act. That, as I have said, ought not to be taken as an indication by the Court in Foster's case that that was the only circumstance in which the Court had a dis- cretion to refuse relief.

The consequence of an order under s.141 is to impose an obligation upon the persons to whom the order is directed to perform and observe the rules of the organis- ation, Disobedience of the order will render the person in breach liable for the penalty for which the section provides (sub-section (4)). There may be many reasons why the interests of justice require that no order be made. In my opinion the legislature, merely because it has changed the form of the section, ought not be taken to have disclosed an intention that the Court was no longer to have the discretion found by the High Court to exist

Because of a submission made by counsel for the appellants, I should mention s.144, It deals with the entitlement of persons to membership or organisations. Sub-section (5) provides that where a question of dispute arises as to the entitlement under tne section of a person to be admitted as, or to remain a member, that person and certain other classes of person or persons may apply to the Court for a declaration as to the entitle- ment of the first mentioned person under the section. Sub-sections (5A) and (6) of s.144 are as follows:

"(5A) Subject to sub-section (7), the Court hes jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to give effect to its determination as 1t thinks fit.

(6) The orders which the Court may make under the last preceding sub-section include an order requiring the organization coneerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization."

In Owens v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 A.L.R. 569,

this Court held that the provisions of s.144 did not confer

upon the Court a discretion to grant or refuse relief if

out (pp.577-578). I would distinguish thet decision from the present case because of the very different subject matter of s.144.

For the reasons I have given I am of opinion that this Court when dealing with an application under s.141 of the Act has a discretion to give or refuse relief.

A further submission was made which, if accepted, would have the practical effect in a case of this kind of denying to the Court any discretion to refuse relief, notwithstanding that 1t might have such a discretion in other classes of case. It was submitted that the respondents other than Robert Arthur Cook were lawfully both officers and members of the organisation. The only way in which they might be dismissed from office or expelled from membership was by lawful action taken pursuant to valid rules of the organisation. Relzrance was placed upon the decision of Megarry J. (as he was) in John v. Rees (1970) Ch.345, His Lordship said (p.397):

" In the present case, there has not in terms been any process of expulsion. Instead, there has been the process which, on Mr, Sparrow's argument, resulted in what for brevity may be descrited as an ipso facto cessation of member- ship which, he contended, 'got round all problems

relating to expulsion.' Considered from the point of view of the members, however, the

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"practical result is indistinguishable from expulsion. Before, they were members; after,

they had been deprived of their membership against their will. The precise legal descrip- tion of the process by which this occurred, whether by destruction of their own membership,

or acts constituting resignation, or repudiation of membership, may well be a matter of indiffer- ence to them; they have been unwillingly evicted.

I cannot believe that the principles of natural justice can be ousted by the simple process of describing expulsion by another name, or resting it upon an alternative theoretical basis. Membership of a club or association 1s doubtless founded upon a basis of contract; but in many cases it 1s not merely a contract. Membership often gives the member valuable proprietary and social rights, and these, as well as tne contract, would be terminated by expulsion. There is thus involved in expulsion not merely the termination of the contract but also the forfeiture of these other rights; and however ready the law may be to recognise the discharge of a contract by repud- iation, 1% is far less ready to accept that there has been a forfeiture of these other rights, whether the process is described as 'ipso facto determin- ation' or otherwise."

To the same effect 1s a dictum of Isaacs J. in Meyers v. Casey (1913) 17 C.L.R. 90. Isaacs J. said (p.124):

".... the issue of whether the appcllant was or was not in fact guilty of misconduct 1s in no

way raised for the Court's determination, whereas the misconduct in respect of which the maxim ('cleen hands') 1s always applied 1s equally with all the other matters an issue within the Court's sphere of determination. If the racing tribunals had, or are to be taken to have had, the requisite authority, and to have acted within their powers, the finding of guilt must stand; if not, he has never been tried, and must be considered innocent

tribunal - which was not the Supreme Court, and is not this Court. To the question of

his actual guilt or innocence, neither Court can have anything to say, and, 1n my opinion, whatever has been said in that respect by the primary tribunal ought to be considered as not affecting the appellant, because entirely extra-judicial."

The judgments in the two cases I have cited were given by courts of general jurisdiction. The statements of the two gudges were made in the course of giving reasons why particular equitable remedies, the enforcement of which was sought by plaintiffs, should be granted.

The discretion which I have found here exists is a statutory one and would compel the organisation and a number of its officials to recognise as officials and members of the organisation versons whose object in being restored to office and membership 2s to continue to undermine and subvert a branch of the organisation. Of that matter

I shall say a little more shortly. All it is necessary to say at the moment is that, whilst in many cases the making out of a case such as has been made here will warrant no other course but the grant of relief, there will be cases where, notwithstanding the force of

the considerations mentioned both by Megarry J. and

The matters relied upon by counsel for the respon- dents in support of his argument that this Court in the exercise of its discretion should not grant relief were based upon the conduct of the appellants other than Robert Arthur Cook. The conduct relied upon is that earlier described under the heading "Background to the Dispute", see pp.9~-14 hereof. Particular reliance was placed upon the findings made by his Honour in that part of his judgment which I have quoted (pp.13-14). The appellants, as I have earlier mentioned, made no challenge to those findings.

In my opinion those findings establish that the appellants, other than Robert Arthur Cook, have embarked upon a concerted course of conduct designed to destroy the viability of the Newcastle branch of the organisation. Their conduct in persuading members to resign from the Newcastle branch and join the New South Wales Union, which conduct formed the basis of the charges brought by Mr. Masterson against them, is but one aspect of a course of action intended to build up the strength of the New South Wales Union at the expense of the Newcastle branch of the

organisation itself. I am of opinion that the inference

is open that the present application, including this appeal, 1s being prosecuted in order that the appellants may be restored to their offices so that they may con- tinue to carry on the disloyal and reprehensible conduct which has been found against them. Clearly that inference should be drawn. There can be no other reason why the application was brought. Success in the appli- cation would put the appellants in a position where, if the organisation did not recognise them both as officers and members, 1t and a number of its other officers would be exposed to the penalty for which s.141 provides.

Tne office bearers of the Sydaney branch, particularly the secretary thereof, like other union officials, are under a fiduciary obligation to the organisation 1n which they bear office and to the mernbers of that organisation. In more commonly understood language they are in a position of trust. In this case his Honour's unchallenged findings demonstrate that the appellants, other than Robert Arthur Cook, have betrayed that trust by building up another organisation at the expense of that to which they owed obligations of loyalty and good faith.

If they are of opinion that plumbers and gasfitters

un the State of New South Wales would be better represented

by a State union under State awards, that 1s their right. There 1s nothing to prevent them organising

a State union and acting 1n opposition to the federal organisation. But what they may not lawfully do is to use their position as office bearers in the federal organisation, not for the purpose of furthering its objectives and interests, but for the purpose of sub- versively undermining it in order to advantage the other organisation to which they loyalty 1s owed.

It 1s in these czrcumstances that counsel for the respondents submits the Court will not in the exercise of its discretion aid the appellants in the unlawful course of conduct upon which they have embarked.

With this conduct in mind I come directly to the question of how the Court's discretion should be exercised. It must be remembered that there are two separate and distinct matters which are to be the subject of decision. The appellants seek orders both as regards their position as officers of the organisation and as members of it. It may be that the Court ought exercise its discretion against granting relief which would compel the organisation

to continue to treat them as officers but would grant it

in respect of the application to compel it to treat them as members.

At the outset it should be said that there is no express limitation imposed upon the width of the dis- cretion by the terms of the section itself. Nevertheless, I do not think that the Court ought refuse relief to an applicant who has brought himself within its purview unless there be some good and cogent reason associated with the granting of that relief why the Court should refuse to act,

During the argument reference was made to the circum- stances in which courts of equity refuse relief to plaintiffs who do not come to court with "clean hands".

A convenient statement of the principles which then apply is to be found in the judgment of Isaacs J. in Meyers v. Casey (supra at pp.123-124). _He there makes it clear that the alleged misconduct must have an immediéte and necessary relation to the equity sued for. In his language the Court will not give relief if "protection for what he (the plaintiff) claims involves protection for his own wrong",

Meyers v. Casey was a case involving disqualification

from a racing club and expulsion from membership therefrom.

Its rather complicated facts need not be referred to except to say that whether the appellant had been guilty of the misconduct alleged against him was a matter to be determined by certain racing tribunals. It was not a matter for the court which was only concerned to see to 1t that the racing tribunals acted 1n accordance with law. It was those considerations that led Isaacs J. to say what he did in the passage I have quoted from his judgment on pp. 72-73 hereof.

Having reflected on the matter, I have reached the conclusion that the circumstances in which equity will refuse a plaintiff relief because of absence of clean hands can have only an indirect bearing on the exercise of the court's discretion under s.141 of the Act. There are many reasons why, when construing and applying a provision such as s.141, one would not regard oneself as circumscribed by the equitable doctrine in question. The discretion,as I have said, 1s conferred in wide terms. There 1S no reason to suppose that the legis- lature intended the equitable principles to be picked up and to be themselves decisive of whether the discretion should be exercised or not, Particularly is that so, in

my view, when the effect of making an order under the

section will be to expose the persons against whom the order 1s made to the penalty for which the section provides.

As earlier said, the purpose and object of the appellants in maintaining these proceedings is to achieve a situation where they will be able the better to continue their subversive conduct. I have reached the clear con- clusion that this Court ought not permit itself to be used by the appellants for that end. No matter that the appellants have not been charged and dealt with in accordance with the valid rules of the organisation, the Court ought not to give aid to persons who are deliberately set on a course of action designed to destroy a branch of an organisation registered under the Act. If an order were made the respondents, including the organisation itself, would be bound to allow that course to continue. If they did not, they would be liable for the penalty for which the section provides.

What I have so far said applies plainly in relation to so much of the application as has the effect of seeking orcers which will compel the respondents to treat the

appellants as officers of the organisation. It does not

apply with such force to so much of the application

given serious consideration to the question of whether

or not the appropriate course is to allow the appeal insofar as it concerns the membership of the appellants

of the organisation. One of the things I heave taken

into account is that if the appellants sought work in the industry under a federal award, they would be unlikely

to get it unless they were members. Thus their expul- sion from membership might affect their livelihood. But there 1s no evidence that they are seeking work in the industry at the moment and if they do, they may resort

to an application under s.144 of the Act earlier referred to. On reflection I consider the disloyal and subversive conduct of the appellants other than Robert Arthur Cook

to be so serious that it reflects a clear intention not

to be bound by the normal obligations which a member of an organisation, trade union or not, owes to the organisation and to his fellow members. In those circumstances I think relief should be refused both in respect of the claim for relief with regard to dismissal from office and

In reaching my conclusion I have taken into account the relief which this Court is able, 1n a proper case, to grant under s.141 of the Act. Relief pursuant to that section has already been granted by the learned trial Juage. But 1f this appeal were to be allowed in relation to matter No. 19 of 1979 it may well be that a consequence would be the allowance also of the appeal in matter No. V 23 of 1979. The two applications involve so much the question of the validity of rules and consequent resolutions that relief which is available to the organisation and members of its executive under the section may be limited in the extreme. I express no final view. All I wisn to say 1s that the fact that the organisation and members of its executive may apply for relief under s.141 does not persuade me that the Court's discretion should be exercised otherwise than as I have indicated.

Before I leave this case I wish to say sonething of the limited power which I consider this Court has to assist parties in a dispute of this kind. A court of general jurisdiction has much more flexibility in what it may do. If this were such a court it would, undoubtedly in a case such as this, be asked to restrain persons in the position of the appellants here from acting otherwise than in accord-

ance with their duties and obligations as officers and

members. If it felt minded to grant relief so as to

ensure that such persons were afforded a hearing in accordance witn the rules of the particular organisation

to which they belonged, it would be likely that it would only grant that relief on terms that undertakings were

given to the court that the officers would act in accord- ance with their duties and would restore money and property wrongfully taken from the organisation to it. Breaches

of ingunctions and undertakings of the kind I have mentioned would be punishable as contempts of court,

This case provides a clear indication of the need for the amendment of the legisletion to confer on this Court wide powers to make orders in respect of officers and members of organisations who are recreant to their duties. We were told during argument that the appellants are still acting as if they are officers. Perhaps they will continue to do so even after this judgment has been delivered. Unless a court has clear injunctive power that is the sort of problem that can arise, That 1t should exist redounds to the disadvantage of tne membership whose funcs are expended on legal costs in what may turn out to be an incon-

witn jurisdiction to deal adequately and completely with the entirety of a dispute the likelihood is that matters are brought to a head and disposed of mucn more expeditiously and thus more inexpensively than 1s the case under legis- lation such as here applied. That is the experience of the Supreme Courts in administering the Companies Acts of the various States.

It should be clear that there are difficulties about the jurisdiction of the Supreme Courts in relation to federal organisations; cf, Federated Clerks Union of Australia v. Hillis (1981) 1 N.S.W.L.R. 631 and s.147 of the Act. And this Court not cnly has the limitations upon its jurisdiction

and powers earlier referred to; those very limitations

restrict its power to accept undertakings in proceedings

for final relief; see Thomson Australian Holdings Pty. Limited v. Trade Practices Commission (1981) 37 A.L.R. 66.

It may perhaps be the case that the Supreme Courts have some remaining jurisdiction to deal with internal disputes arising within organisations. I express no view, But if it be so, this Court may be able to exercise that jurisdiction

when seized of an application under s.14]1 of the Act; see

Philio Morris Incorporated v. Adam P. Brown Male Fashions Pty, Limited (1981) 33 A.L.R. 465. But such considerations

raise complex and difficult problems which parties to

litigation ought not to have to concern themselves about. The position should be clear beyond question.

It follows that it is highly important in my opinion that the legislation be changed to give this Court all guris- diction necessary to deal with all aspects of disputes involving members and officials of organisations either amongst them- selves or to which the organisations are parties. The legislation under whicn the organisations are registered is Commonwealth legislation and operates throughout Australia. Tne organisations are creatures of that legislation. There can be no question but that gurisdiction to give adequate

In the wey that I have approached the matter a number of submissions relied upon by the parties do not, in my opinion, fall for decision, I should mention some of these shortly. It was submitted on behalf of the respondents that the conduct of the appellants which I have decided ought lead to the refusal of relief upon discretionary grounds, should also lead to the same result either because

at showed that the appellants had evinced a clear intention

not to be bound by their contract of membership or because it meant that the appellants had resigned unilaterally both as officers and members of the organ- isation. In relation to the first submission it was said that the repudiation had been accepted by the organisation when its executive purported to dismiss

the appellants from office and expel them from membership. Insofar as repudiation was not applicable in relation to the holding of office as distinct from membership, it was said that the appellants could not be officers if they were no longer members. The alternative submission shortly stated as "unilateral resignation by conduct" was put in order to overcome the need for the acceptance of the appellants! claimed repudiation of their contracts of membership.

I record the making of these submissions but, in the circumstances, express no view about them.

Other submissions made by the parties are dealt with an the judgment of Smithers J., whose judgment I nave had the advantage of reading. The point of difference between us is in our differing views concerning the question of

whether the amended Rule 28.5 contravened s.140(1)(c) of

in my judgment, I had concluded that the amended Rule

28.5 was valid, I would have reached an ultimate con-

clusion similar to that reached by Smithers J, In this connection I wish particularly to sey that, in that event,

I would have been in agreement witn his conclusions con- cerning the matters dealt with in his gudgment under the headings, "Imbalance", "Disproportionate Branch Representation", "Charges" and "Sanctions".

For the reasons I have given I am of opinion that the appeal in matter No. N 19 of 1979 should be dismissec. It may be that that conclusion should also 1ead me to the view that the appeal in matter No. V 23 of 1979 should also be dismissed. However, I would prefer not to express a final opinion at this stage. For reasons given at the outset of this judgment I would propose that after these reasons have been publisned no orders be made and that the matters be stood over for a short time to enable counsel to consider

Py judgment herem of The Honourabie Mr Justice Sheppard. < des we